Federal Corner: The Supremes Look at Another Guidelines Issue – By F. R. Buck Files Jr.

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On March 28, 2012, a panel of the United States Court of Appeals for the Seventh Circuit affirmed the conviction of Marvin Peugh and the 70-month sentence imposed by United States District Judge Fredrick Kapala of the Northern District of Illinois. The Court held that using the United States Sentencing Guidelines in effect at time of sentencing, rather than at the time of the offense, did not violate the Ex Post Facto Clause. (Emphasis added.) United States v. Peugh 675 F.3d 736 (7th Cir. 2012) [Panel: Circuit Judges Rovener, Wood, and Williams].

Peugh had been indicted for two bank-fraud schemes in violation of 18 U.S.C. § 1344. The offense conduct occurred from January 1999 to August 2000. Judge Rovener’s opinion contains, in part, the following:

At sentencing Peugh raised a number of objections to the presentence report. He first argued that sentencing him under the 2009 guidelines (then in effect) rather than under the 1999 guidelines (in effect at the time he committed his offenses) would violate the Ex Post Facto Clause because it would result in a significantly higher sentencing range. The court rejected this argument based on United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006), in which we held that using the guidelines in effect at the time of sentencing rather than the time of the offense does not violate the Ex Post Facto Clause because the guidelines are merely advisory.

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Peugh renews his argument that the district court violated the Ex Post Facto Clause by calculating his sentence under the 2009 rather than the 1999 guidelines, which were in effect at the time he committed his offenses. Under the 2009 guidelines, Peugh’s advisory range jumped by more than 20 months. Peugh acknowledges that our holding in United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006), undercuts his position, but he urges us to reconsider that case and overrule it. We, however, stand by Demaree’s reasoning—the advisory nature of the guidelines vitiates any Ex Post Facto problem—and again decline the invitation to overrule it.

Peugh’s lawyer didn’t just hang it up and say to his client, “At least we tried.” No, he filed a Petition for Writ of Certiorari, which the Supreme Court granted on November 9, 2012.

The Petition contains, in part, the following:

QUESTION PRESENTED

The U.S. Sentencing Guidelines Manual directs a court to “use the Guidelines Manual in effect on the date that the defendant is sentenced” unless “the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the Ex Post Facto Clause of the United States Constitution.” Eight courts of appeals have held that the Ex Post Facto Clause is violated where retroactive application of the Sentencing Guidelines creates a significant risk of a higher sentence. In the decision below, however, the Seventh Circuit has held that the Ex Post Facto Clause is never violated by retroactive application of the Sentencing Guidelines because the Guidelines are advisory, not mandatory.

The question presented is:

Does a sentencing court violate the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence?

Statement of the Case

        This case presents an important and recurring constitutional issue on which the federal courts of appeals are intractably divided: whether, in the wake of United States v. Booker, 543 U.S. 220 (2005), the retroactive application of the Sentencing Guidelines violates the Ex Post Facto Clause when the newer Guidelines create a significant risk of a harsher sentence than would have been imposed under Guidelines in effect at the time of the crime. The Solicitor General has previously declared that the “courts of appeals are divided” 5–1 on the question. The D.C., Second, Fourth, Sixth, and Eleventh Circuits find an Ex Post Facto violation in such circumstances. By contrast, only one circuit—the Seventh Circuit, the court below—has held to the contrary that the Ex Post Facto Clause is not implicated because the Guidelines are advisory.

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Resolving the circuit conflict is critical to maintaining the goal of uniform federal sentencing.

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Mr. Peugh raised the issue in both the district court and the court of appeals, and both courts squarely addressed it. The Seventh Circuit’s rule materially lengthened his sentence: Mr. Peugh’s 70-month sentence, which was at the bottom of the range calculated under the 2009 Guidelines in effect at the time of his sentence, was 24 months above the top of the range calculated under the 1998 Guidelines in effect at the time of his offense.

A. Legal Background

        The Sentencing Reform Act of 1984, as amended, directs sentencing courts to consider a number of factors in imposing a sentence, including Guidelines issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(4)(A) (2006). The statute directs a court to consider the Guidelines “in effect on the date the defendant is sentenced.” Id. § 3553(a)(4)(A)(ii). The Guidelines implement that statute with the proviso that “[i]f the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the Ex Post Facto Clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.” U.S. Sentencing Guidelines Manual § 1B1.11(b) (2011).

B. Facts and Proceedings Below

        In 2010, a jury convicted Mr. Peugh of five counts of bank fraud under 18 U.S.C. § 1344 related to loans received for farming businesses Mr. Peugh ran with his cousin.

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The district court, relying on United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006), rejected Peugh’s argument on the ground that the Guidelines are not mandatory, but merely advisory. App. 28a (“The court is bound by the holding in Demaree, and, accordingly, the court overrules the defendant’s objection to use of the 2009 guidelines manual”).

        Application of the 2009 Guidelines rather than the 1998 Guidelines significantly increased the Guidelines sentencing range. The presentencing report calculated the offense level under the 1998 Guidelines as 19, but the Government argued in the court of appeals that, if the 1998 Guidelines applied, there should be an additional two-level enhancement for obstruction of justice, bringing the total offense level to 21.

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By contrast, the district court calculated a total offense level of 27 under the 2009 Guidelines: a base offense level of 7 . . . The 2009 Guideline range for a total offense level of 27 was 70–87 months. U.S. Sentencing Guidelines Manual § 5A (Nov. 1, 2009) . . . The district court chose to impose the lowest sentence within the 2009 Guidelines range (70 months) on Mr. Peugh . . . The district court expressed no opinion on the sentence it would have imposed had it applied the 1998 Guidelines instead. (Emphasis added.)

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On appeal, Mr. Peugh again argued that his sentencing violated the Ex Post Facto Clause, because the 2009 Guidelines called for a sentence 33 to 41 months longer than called for under the 1998 Guidelines.

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Retroactive application of the 2009 Guidelines undeniably resulted in a harsher sentence: Mr. Peugh’s 70-month sentence was at the very bottom of the 2009 Guidelines range, but was 24 months longer than even the top of the 1998 Guidelines range.

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The court of appeals, like the district court, relied on Demaree in rejecting Peugh’s argument.

Reasons for Granting the Petition

I. The Court of Appeals Are Deeply Divided on the Question Presented

        In the wake of Booker, an entrenched and acknowledged split has arisen among the federal courts of appeals on whether retroactive application of Sentencing Guidelines adopted after the commission of the offense can violate the Ex Post Facto Clause.

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In Demaree, the Seventh Circuit held categorically that the Ex Post Facto Clause no longer applies to retroactive application of the Sentencing Guidelines, because the Ex Post Facto Clause “appl[ies] only to laws and regulations that bind rather than advise.” 459 F.3d at 795.

        As the Solicitor General has stated in other cases, five other courts of appeals (the D.C., Second, Fourth, Sixth, and Eleventh Circuits) have expressly “disagreed [with Demaree] and concluded that the Guidelines may implicate the Ex Post Facto Clause even though they are advisory.”

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II. The Seventh Circuit’s Decision Is Consistent With the Supreme Court Precedent and Disregards the Significant Risk That Applying Harsher Guidelines Will Result in a Long Sentence.

        Review is also warranted because the categorical Demaree rule adopted by the Seventh Circuit is irreconcilable with this Court’s precedent. Under the Ex Post Facto Clause, an enactment that affords discretion in determining criminal punishment cannot be constitutionally applied if it “create[s] a significant risk of in­creased punishment.” Garner, 529 U.S. at 255. Here, the 2009 Guidelines, even though advisory, created just such a significant risk that Peugh would suffer increased punishment. The sentencing range calculated under the 2009 Guidelines (70–87 months) was nearly twice that calculated under the 1998 Guidelines (37–46 months) and influenced the sentence that the district court imposed.

        Moreover, the Guidelines provide a framework that influences prosecutors’ and defendants’ plea bargains. See, e.g., Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2533 (2004) (discussing the Guidelines as mental anchors that frame plea bargaining “by establishing clear baselines for likely sentences after trial”). The retroactive application of harsher Guidelines affects not only the decision to plead guilty, but also the offenses and conduct that the defendant will admit and the sentence recommended by the prosecutor. Application of the 1998 Guidelines may have affected the Government’s strategy with regard to plea offers, as well as Mr. Peugh’s decision to plead not guilty to all counts (nearly half of which eventually resulted in acquittals) even in the face of his co-defendant Mr. Hollewell’s decision to plead guilty to one count and escape prosecution on the remaining counts. Harsher Guidelines inexorably increase the risk that courts will impose greater sentences of imprisonment than they would have imposed under more lenient Guidelines.

        Finally, in Rita, this Court determined that “a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects proper application of the Sentencing Guidelines.” Rita, 551 U.S. at 347. This presumption provides a clear incentive to sentencing within the Guidelines range: “judges are more likely to sentence within the Guidelines to avoid the increased scrutiny that is likely to result from imposing a sentence that is outside the Guidelines.” Turner, 548 F.3d at 1099. Not only is a district court more likely to sentence in the Guideline range, but such sentences are more likely to be upheld on appeal.

        [O]nce a sentencing judge correctly applies the Guide­lines range, the defendant’s relief is limited. [A court of appeals] will disturb the sentence if, but only if, [it] is left with the definite but firm conviction that the district committed a clear error in judgment in weighing the § 3553(a) factors by arriving at a sentence that lies out­side the range of reasonable sentences dictated by the facts of the case.

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        The statistical evidence has consistently revealed not much change in sentencing practices post-Booker. Turner, 548 F.3d at 1099. The vast majority of sentences imposed by federal courts each year fall within the Guide­lines range. For example, excluding cases where the government itself sought a departure or variance, 3 out of 4 times a court sentenced a federal offender within the Guidelines range in fiscal year 2011; only 1 in 4 times did a court impose a sentence below the Guidelines range. U.S. Sentencing Commission, 2011 An­nual Report 35–37 (2011). In most cases, therefore, the Guidelines exert significant influence over sen­tencing decisions and form the initial basis for all sentencing. (Emphasis added.)

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III. The Question Presented Affects Thousands of Sentences.

        The question presented is indisputably important. It directly influences potentially thousands of individuals sentenced by federal courts and the federal policy of sentencing uniformity. Federal courts used the Guidelines to sentence 86,201 federal offenders in fiscal year 2011, and the Seventh Circuit alone sentenced 3,064. U.S. Sentencing Commission, 2011 Sourcebook of Federal Sentencing Statistics tbl. 2.

My Thoughts

  • I was interested when I read the Court’s opinion in Peugh because our courts just don’t do things that way in the Fifth Circuit. See United States v. Reasor, 418 F.3d 466 (5th Cir. 2005). In Reasor, the Court held that post-Booker, the district court on remand should apply the earlier rather than the later advisory guidelines to avoid Ex Post Facto violations.
  • Do I think Mr. Peugh might get a new sentencing hearing? Yes.
  • In the post-Booker era, I’m a little surprised at the statistics cited by the Court as to sentences imposed below the suggested Guideline range. Sometimes we forget that the Guidelines are now 25 years old and that the majority of federal judges have known no other sentencing scheme.
TCDLA
TCDLA
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a member of TCDLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TCDLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. This is his 250th – and last – column; however, he will continue to write for The Voice on an irregular basis. He practices in Tyler with the law firm of Bain, Files and Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a member of TCDLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TCDLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. This is his 250th – and last – column; however, he will continue to write for The Voice on an irregular basis. He practices in Tyler with the law firm of Bain, Files and Harrison, P.C., and can be reached at or (903) 595-3573.

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