By Tommy Walker
I. Peugh v. United States, (No. 12-62)(S. Ct. June 10, 2013)
Recently, the United States Supreme Court decided Peugh referenced above. At first blush it may not seem to have been a decision which would have significant impact with many defendants. However, upon closer review, the ramifications of Peugh are a lot more subtle, and therefore, Tommy Walker and his assistants have given us a more in-depth review. Peugh may also be the forerunner of the upcoming Alleyne case.
In Peugh, the United States Supreme Court held that sentencing a defendant under a version of the U.S. Sentencing Guidelines that was promulgated after he committed his crime and increased the applicable range of the incarceration violates the Ex Post Facto Clause.
The Supreme Court defined the ex post facto clause as: (1) every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action; (2) every law that aggravates a crime, or makes it greater than it was, when committed; (3) every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed; and (4) every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender (slip opinion at page 7). (citing, Calder v. Bull, 3 Dall 386 (1793)).
At issue in Peugh was Calder’s third category of the ex post facto clause laws that “change the punishment, and inflict a greater punishment, than the law annexed to the crime, when committed”. (slip op., at 8). Peugh’s claim was that the ex post facto clause was violated because the 2009 Guidelines call for a greater punishment than annexed to bank fraud in 2000, when his crimes were committed. The Government on the other hand, claimed that because the mere punitive guidelines applied at Peugh’s sentencing were only advisory, there was no ex post facto issue. Id.