Peugh v. United States

RESPONDENT:United States
LOCATION: United States District Court for the Northern District of Illinois, Western Division

DOCKET NO.: 12-62
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 569 US (2013)
GRANTED: Nov 09, 2012
ARGUED: Feb 26, 2013
DECIDED: Jun 10, 2013

Eric J. Feigin – Assistant to the Solicitor General, Department of Justice, for the respondent
Stephen B. Kinnaird – for the petitioner

Facts of the case

In 1996, Marvin Peugh and Steven Hollewell formed two companies: the Grainary, Inc., which bought, stored and sold grain; and Agri-Tech, Inc., which provided custom farming services to landowners and tenants. From January 1999 to August 2000, the two obtained bank loans by falsely representing future contracts and inflating the bank accounts by writing bad checks between the two accounts. Peugh pleaded not guilty to all counts, while Hollewell pleaded guilty to one count and agreed to testify against Peugh in exchange for the other charges being dropped. After a jury trial, Peugh was convicted on five counts of bank fraud. At sentencing, Peugh argued that he should be sentenced under the 1999 U.S. Sentencing Guidelines that were in effect at the time of the offense, rather than the 2009 Guidelines that were in effect at the time of sentencing. He argued that use of the later Guidelines violated the Ex Post Facto Clause. He was sentenced to 70 months in prison, and he and Hollewell were jointly ordered to pay nearly $2 million. The U.S. Court of Appeals for the Seventh Circuit affirmed.


Does the use of the U.S. Sentencing Guidelines in effect at the time of sentencing rather than those in effect at the time of the offense violate the Ex Post Facto Clause if there is significant risk that the newer Guidelines would result in a longer sentence?

Media for Peugh v. United States

Audio Transcription for Oral Argument – February 26, 2013 in Peugh v. United States

Audio Transcription for Opinion Announcement – June 10, 2013 in Peugh v. United States

John G. Roberts, Jr.:

Justice Sotomayor has our opinion this morning in case 12-62, Peugh versus United States.

Sonia Sotomayor:

In an effort of to reduce unwarranted disparities in federal sentencing, Congress passed the Sentencing Reform Act.

The Act created the United States Sentencing Commission which is tasked with promulgating sentencing guidelines.

Those guidelines prescribe a sentencing range for a criminal defendant based on his personal characteristics such as his criminal history and the characteristics of his offense.

As enacted, the guidelines were meant to be mandatory, meaning that they were legally binding on the sentencing court.

In United States versus Booker, this Court found that the mandatory guidelines were unconstitutional.

To cure the constitutional problem, the Court struck down the provisions of the act that made the guidelines mandatory and left an advisory system in its place.

After Booker, the guidelines still operate to channel sentencing discretion and avoid excessive disparities, but District Courts may now sentence outside the guidelines subject to deferential appellate review.

The Sentencing Commission periodically reviews and amends the Guidelines.

District Courts are directed to apply the most up-to-date version of the guidelines in effect at the time of sentencing with one caveat.

They are not to do so if applying the new guidelines would violate the Constitution’s ex post facto clause by retroactively increasing the punishment for the defendant’s crime.

We have interpreted this clause to bar laws that create a significant risk of increasing a defendant’s punishment.

The question presented here is whether now that the guidelines are advisory; it violates the ex post facto clause to apply a new, more punitive guideline retroactively.

Petitioner Marvin Peugh was convicted of multiple counts of bank fraud.

Under the version of the guidelines in effect at the time of his crime, Peugh would have been subject to an advisory guideline range of 30 to 37 months of imprisonment.

But in between the time of the crime and Peugh’s sentencing, the Sentencing Commission amended the guidelines in several ways, increasing Peugh’s guideline range to 70 to 87 months of imprisonment.

The District Court rejected Peugh’s argument that applying the new guideline range violated the ex post facto clause.

The court decided that a within-guideline sentence was appropriate and sentenced Peugh to 70 months of imprisonment.

The Court of Appeals for the Seventh Circuit affirmed, applying circuit precedent holding that retroactive increases in the advisory sentencing guidelines do not implicate an ex post facto concern.

We granted certiorari and now reversed.

While the guidelines are no longer mandatory, they still occupy a central role in sentencing.

Indeed, they are designed to anchor sentencing discretion in order to promote uniformity.

Under our post-Booker precedents, District Courts are required to begin sentencing by calculating correctly the guidelines range.

Failure to do so is reversible procedural error.

District Courts may depart from the range, but they must consider the extent of any deviation and provide us sufficient justification to support the variance.

Court of Appeals, in turn, may presume a within-guidelines range as reasonable and may further consider the extent of any deviation from the guidelines in reviewing a sentence for reasonableness.

The cumulative effect of these legal rules is to make the guidelines the loadstar of sentencing in the federal system, even in a post-Booker world.

Both common sense and empirical evidence indicate that these rules will steer District Courts to give more within-guideline sentences.

As a result, increasing the applicable sentencing range carries a significant risk of an increased punishment.

For these reasons which we elaborate in greater detail in the opinion filed today, we hold that retroactively applying an increase in the applicable guideline range violates the ex post facto clause.

Sonia Sotomayor:

The judgment of the Seventh Circuit is reversed.

Justice Thomas has filed a dissenting opinion which the Chief Justice, Justice Scalia and Justice Alito joined in part.

Justice Alito has also filed a dissenting opinion which Justice Scalia joins.