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?
Lower court opinion (U.S. v. Peugh, 675 F.3d 736 (7th Cir 2012))
Of immediate interest to federal rather than state practitioners; and, because it’s a CTA7-grant, perhaps heightened interest to the local federal bar. Wisconsin’s never been a Guideline-happy state – see, e.g., In the Matter of Implementation of Felony Sentencing Guidelines, 113 Wis. 2d 689, 690, 335 N.W.2d 868 (1983) (“No need has been satisfactorily established to justify the court’s requiring the statewide use of the felony sentencing guidelines …”), cited principle reaffirmed in In re Felony Sentencing Guidelines, 120 Wis. 2d 199, 203, 353 N.W.2d 793 (1984). A subsequent, halting legislative attempt at a guideline regime lasted a few years before being put out of its misery – see discussion in post on State v. Firebaugh, 2011 WI App 154, 337 Wis. 2d 670, 807 N.W.2d 245. This isn’t to say that there can be no state fall-out from this grant. Among other things to keep in mind, local PAC guidelines remain operative under separate authority of § 346.65(2m)(a), and may be utilized in OWI sentencings, e.g., State v. Kuechler, 2003 WI App 245, ¶10, 268 Wis.2d 192, 673 N.W.2d 335 (“In State v. Jorgensen, 2003 WI 105, ¶¶ 2, 27, 264 Wis. 2d 157, 667 N.W.2d 318, the supreme court made it clear that although local sentencing guidelines are only applicable to prohibited alcohol concentration (PAC) offenses and are not to be robotically applied to OWI offenses, it is not error to make reference to local guidelines when sentencing for an OWI offense.”).
Back to Peugh: according to the cert petition, his “70-month sentence … was at the bottom of the range calculated under the 2009 Guidelines in effect at the time of his sentence, [but] 24 months above the top of the range calculated under the 1998 Guidelines in effect at the time of his offense.” He argues that use of the ’09 Guidelines therefore violated the Ex Post Facto Clause. Long and short of it: the 7th Cir has determined “that the ex post facto clause should apply only to laws and regulations that bind rather than advise, a principle well established with reference to parole guidelines whose retroactive application is challenged under the ex post facto clause,” United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006), with several other Circuits rejecting that conclusion, e.g., U.S. v. Lewis, 606 F.3d 193, 199 (4th Cir. 2010) (“… an increased advisory Guidelines range poses a significant risk that a defendant will be subject to increased punishment. Accordingly, as explained below, we join the D.C. Circuit in concluding—as did the district court—that the retroactive application of severity-enhancing Guidelines amendments contravenes the Ex Post Facto Clause.”). That split will now be resolved.