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June 10, 2013

SCOTUS concludes Ex Post Facto Clause still limits application of new guidelines after Booker

Thanks to the fine folks live-blogging at SCOTUSblog, I can provide this summary report (with a few edits) of the one big sentencing ruling handed down by the US Supreme Court this morning:

Justice Sotomayor for the Court in Peugh v. United States....

The decision of the Seventh Circuit is reversed, the case is remanded.  The Court is splintered.  Justice Sotomayor delivers the opinion of the Court except for one part. The Ex Post Facto Clause is violated when a defendant is sentenced under guidelines promulgated after he committed his acts, and the new version of the guidelines provides for a higher sentence than the one in effect at the time he committed his act.

Justice Sotomayor's opinion is for the Court except for a discussion about the policies underlying the Ex Post Facto Clause.  It's another case where Justice Kennedy joins the more liberal members of the Court.

Justice Thomas dissents, joined by the Chief and Scalia and Alito. Justice Alito dissents, joined by Justice Scalia.  Justices Ginsburg, Breyer, and Kagan join all of the Sotomayor opinion; Justice Kennedy declines to join Part III-C.

The big fight in the case was whether the Sentencing Guidelines are important enough to trigger Ex Post Facto review given that they are no longer binding -- the majority says they are....

The part of the Sotomayor opinion that Kennedy does not join is a response to the argument by the government and the dissent that the Ex Post Facto Clause is not implicated by this case.  The ruling will be significant to the ability of courts to apply tougher new sentencing guidelines to pending cases.  It is also a strong reaffirmation of the Ex Post Facto Clause.

The full opinions in Peugh are available here.  The opinion for the Court per Justice Sotomayor runs 20 pages, and the main dissent per Justice Thomas is 14 pages. 

Kudos to the Court in keep this one relatively brief, as I suspect every sentence from the Justices in this case could end up having some impact on the operation of the post-Booker federal sentencing world.  And once I get some time to read these opinions, I will do some follow-up posts on whether Peugh passes the smell test (get it..., I know, pretty lame).

June 10, 2013 at 10:21 AM | Permalink


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As noted by SCOTUSBlog, there seems to be an effort in recent years to make opinions brief as a whole, some rather short opinions the norm of late.

Posted by: Joe | Jun 10, 2013 10:42:37 AM

I couldn't be more annoyed about this.

I have been pushing this argument for YEARS, about the post-Blakely landscape in Ohio. In fact, if you search the comments of this blog, you'll find posts discussing it. We filed numerous cert petitions raising the same issue, then habeas petitions, then Sixth Circuit appeals. They were all denied with the same snide sneer.

Like I said -- annoyed.

Posted by: Ohio PD | Jun 10, 2013 3:24:02 PM

Two passages in Peugh may be relevant to what the Court does in Alleyne.

"Our Sixth Amendment cases have focused on when a given finding of fact is required to make a defendant legally eligible for a more severe penalty." (Maj. Op. at 19).

"In United States v. Booker, ... this Court held that mandatory Guidelines ran afoul of the Sixth Amendment by allowing judges to find facts that increased the penalty for a crime beyond 'the maximum authorized by the facts established by a plea of guilty or a jury verdict.'" (Maj. Op at 4).

Posted by: DEJ | Jun 10, 2013 9:07:58 PM

"At sentencing, Peugh argued that the Ex Post Facto
Clause required that he be sentenced under the 1998
version of the Federal Sentencing Guidelines in effect at
the time of his offenses, rather than under the 2009
version in effect at the time of sentencing. The two versions
yielded significantly different results for Peugh’s
applicable Guidelines sentencing range. Under the 1998 Guidelines,
Peugh’s base offense level was 6. United States
Sentencing Commission, Guidelines Manual §2F1.1 (Nov.
1998) (USSG). Thirteen levels were added for a loss
amount of over $2.5 million, ibid., and 2 levels for
obstruction of justice because of Peugh’s perjury at trial, see
USSG §3C1.1 (Nov. 1998). The total offense level under
the 1998 Guidelines was therefore 19. As a first-time
offender, Peugh was in Criminal History Category I, and
so his sentencing range under the 1998 Guidelines was 30
to 37 months. USSG, ch. 5, pt. A (Nov. 1998)."

This could make a funny running gag on Duck Dynasty. A fed could come and scare them about this and that and ramble about the potential sentence. Though many of them went to college few would understand it and it would take seasons to figure it out. Indeed, they would never figure it out without the right computer to help them and by then the fed would be retired.

Posted by: George | Jun 10, 2013 11:58:32 PM

Peugh should get down and thank whatever gods he/she belives in that this was NOT a sex crime. Since the govt fucktards have never seen a sex crime that ex post applies too!

Posted by: rodsmith | Jun 11, 2013 3:03:15 AM

Rod, do you like raisins? Even if you don't, stroll over to SCOUTSblog and check out the shiny new opinion on the takings clause and regulations. How far will it go?


Posted by: George | Jun 11, 2013 8:14:06 AM

LOL i saw that george! i say it is a taking! I also say it's theft. Plus since it's theft with the applicaiton of violence...ie prison that makes it violent theft which means to me the individuals have the legal right to kill the little govt fucktard trying to take thier raisens!

sorry in my book if you take it. you pay for it. fail to do so and your a thief. no matter what silly costume or job you have.

Posted by: rodsmith | Jun 12, 2013 1:30:18 PM

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