The Lawletter Vol 37 No 11
The U.S. Supreme Court will once again look at the U.S. Sentencing Guidelines, this time to determine whether a sentence established in a Guidelines provision created after the commission of a crime may be applied to that crime without violating the Ex Post Facto Clause found in Article I, Section 9, Clause 3 of the Constitution. The case, Peugh v. United States, 675 F.3d 736 (7th Cir. 2012), petition for cert. filed, 133 S. Ct. 594 (U.S. Nov. 9, 2012) (No. 12-62), set for argument (Feb. 26, 2013), arises from the conviction of a defendant on charges of bank fraud in the U.S. District Court for the Northern District of Illinois. In sentencing the defendant to 70 months in prison, the court relied upon the 2009 version of the Guidelines that was in effect at the time of the conviction. The defendant argued that he should have been sentenced under the 1998 Guidelines, which were in effect at the time of the commission of the crime, and that the application of those Guidelines would have resulted in a sentence range of between 37 and 46 months. Although acknowledging that several other circuits have found that application of a postcrime version of a Guideline to impose a more severe sentence would violate the Ex Post Facto Clause, the Seventh Circuit affirmed the defendant's conviction, finding that any possible ex post facto issue was vitiated because the Guidelines have been determined by the Supreme Court to be merely advisory.