U.S. Supreme Court

Grain operator's SCOTUS win is 'a strong reaffirmation of the ex post facto clause'


The ex post facto clause is violated when a defendant risks a harsher penalty under a revised version of the U.S. Sentencing Guidelines adopted after the crime in question, the U.S. Supreme Court has ruled in a 5-4 decision.

The opinion is “a strong reaffirmation of the ex post facto clause,” says SCOTUSblog founder Tom Goldstein at his live blog of the court’s action.

In her majority opinion (PDF), Justice Sonia Sotomayor said ex post facto review is triggered even though the sentencing guidelines are no longer binding. The guidelines “remain the starting point for every sentencing calculation in the federal system,” she wrote. “A retrospective increase in the guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”

The defendant, Marvin Peugh, was convicted of bank fraud partly for misrepresentations in loan applications made while trying to keep his grain storage business afloat. Under the old guidelines his sentence range was 30 to 37 months, and under the revised guidelines it was 70 to 87 months.

Sotomayor’s opinion was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan, and by Justice Anthony M. Kennedy in all but one section discussing the “principles of fairness” that animate the ex post facto clause.

The case is Peugh v. United States.

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