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Seventh Circuit: Peugh v. U.S. isn’t retroactive

David Conrad v. United States, 7th Circuit Court of Appeals No. 14-3216, 3/4/16

Peugh v. United States, 133 S. Ct. 2072 (2013), held that the ex post facto clause prohibits a sentencing court from using a Sentencing Guideline in effect at the time of sentencing instead of the Guideline in effect at the time of the offense if the new version of the Guideline provides a higher applicable sentencing range than the old version. The Seventh Circuit holds Peugh shouldn’t be applied retroactively to allow resentencing in a case that was final before Peugh was decided.

At the time Conrad was sentenced the applicable Guideline set a sentencing range of 360 months to life; the Guideline in effect when he committed the offense set a range of 121 to 151 months. (Conrad got 198 months.) Peugh was decided five months after Conrad’s sentence became final, so he filed a federal habeas petition challenging his sentencing. (Slip op. at 1-2).

The Supreme Court hasn’t decided whether Peugh applies retroactively to cases that were final before the case was decided. Whether a new rule is retroactive generally depends on whether the rule is substantive or procedural; the former are retroactive, the latter aren’t, unless it is a “watershed” rule. Peugh doesn’t declare a “watershed” procedural rule, given that United States v. Booker, 543 U.S. 220 (2005), the case holding that the Sentencing Guidelines can only be discretionary, not mandatory, was not a “watershed” case. (Slip op. at 3). Moreover, Peugh is itself equivocal about whether the use of a new Guideline is procedural or substantive (slip op. at 2-3), and “[t]he attempt to distinguish between a substantive and a procedural rule is not a happy one, at least in the present context, because most procedural rules have substantive effects.” (Slip op. at 4).

So instead the court resolves the issue using Calder v. Bull, 3 Dall. (3 U.S.) 386, 390 (1789), which held the following laws can’t be retroactively applied: “1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. 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 offence, in order to convict the offender.” Under this formulation, Peugh doesn’t mandate resentencing in cases like Conrad’s:

What the Sentencing Commission did when it increased the guidelines range for the defendant’s crime in this case could be thought encompassed by [Calder‘s] second and third points, but that is not an inevitable conclusion. The principal objection to ex post facto laws—the first in [Calder‘s] list—is that they punish the defendant, without warning, for conduct that he rightly considered lawful when he engaged in it. The objection to increasing retroactively the punishment for conduct clearly criminal when the defendant engaged in it is different—it is that the decision whether to comply with a criminal law is normally based on a comparison of the gains and losses of violating the law, and the losses depend on the expected sentence if the criminal is caught. Imposing an unforeseen heavier punishment retroactively distorts the ability of a potential criminal to make a rational choice. ….

But it is a safe bet that it is the rare would-be criminal who consults the guidelines tables published by the Sentencing Commission in deciding whether to commit a crime. It would be a futile search. He could not calculate with any confidence where in the applicable range he would be punished if convicted, or indeed whether he would be punished within the range instead of more severely or less so by a sentence above or below the range. …. While Peugh holds that an “increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation,” 133 S. Ct. at 2084, it makes a difference when the increase in the guidelines range takes place. If as in the present case it was before Peugh was decided, the concern with overburdening the courts with postconviction litigation has controlling weight because, the guidelines not being binding on the sentencing judge, the defendant—provided that the judge does not impose a sentence higher than the statutory maximum when he committed his crime—does not “face a punishment that the law cannot impose upon him.” ….

(Slip op. at 5-6).

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