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 that would have a significant impact for 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.

II. Of Broader Constitutional Importance

On a broader note, the Peugh decision recognizes the following pertinent and significant points: (1) The Federal Sentencing Scheme is aimed to achieve uniformity; (2) that although the federal sentencing scheme (guidelines) are no longer mandatory after Booker, they still have a tremendous effect in law; (3) that the Supreme Court’s ex post facto cases have never held that a law must increase the maximum sentence for which a defendant is eligible to violate the ex post facto clause; (4) it is also clear that the ability of the sentencing authority to exercise discretion does not defeat an ex post facto claim. Thus, for other defendants making ex post facto claims under Calder’s first, second, or fourth category. They can use Peugh as precedent for arguing that there are even other laws that create a substantial risk of higher sentences that are governed by the ex post facto clause.

III. Ex Post Facto Principles Are Inherent In Due Process Clause

Although the ex post facto clause of the Constitution, by its form, applies only to acts by the legislature and not the judiciary, the Supreme Court has made clear “that limitations on ex post facto judicial decision-making are inherent in the notion of Due Process.” See, Rogers v. Tennessee, 532 U.S. 451 (2001); U.S. Const. Art. I, sect. 9 cl.3. As the Supreme Court explained in Bouie v. City of Columbia, 376, U.S. 347, 353-54 (1964), “If a … legislature is barred by the ex post facto clause from passing such a law, it must follow that [the court] is barred by the Due Process Clause from achieving precisely the same result by Judicial Construction.” Id.. at 353-54. Thus, you might have to request that your analysis focuses on the Rogers’ test when judicial construction of a statue violates due process.

For example, it could be argued that the Booker remedy is a direct violation of the ex post facto clause because it is an implied legislative change in the statute. It should be viewed as an implied legislative change because it was based on the court’s view of what Congress would have intended had it known that mandatory guidelines would violate the Sixth amendment. See Booker, 125 S. Ct. at 767 (” [w]e have examined the statue in-depth to determine Congress’ likely intent in light of today’s holding.”) That is, the Booker remedy raises due process and ex post facto concerns. These concerns come into play because the remedy, through its new interpretation of the Sentencing Reform Act, effectively revised the maximum penalty that may be imposed for federal crimes by eliminating the mandatory nature of the guidelines.

As Booker makes clear, under the mandatory federal guideline system that was in effect before Booker, the statutory maximum sentence was the top of the applicable guideline range, 125 S.Ct. at 749 (quoting Blakely, 124 S.Ct. at 2537). Thus, a sentence may not exceed the statutory maximum as defined in Blakely and Booker’s constitutional Holding.

That is, the Booker remedy raises due process and ex post facto concerns. These concerns come into play because the remedy, through its new interpretation of the Sentencing Reform Act, effectively revised the maximum penalty that may be imposed for federal crimes by eliminating the mandatory nature of the guidelines. As Booker makes clear, under the mandatory federal guideline system that was in effect before Booker, the statutory maximum sentence was the top of the applicable guideline range, 125 S.Ct. at 749 (quoting Blakely, 124 S.Ct. at 2537). Thus, a sentence may not exceed the statutory maximum as defined in Blakely and Booker’s constitutional Holding.

In sum, the Booker remedy increased the maximum sentence for ex post facto purposes to the U.S. Code maximum for the “offense of conviction”, whether you are contending that the maximum pre-Booker was the top of the guidelines range, or the “maximum authorized by the facts established by a plea of guilty or a jury verdict.” Again, [e]very 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”, is ex post facto. Peugh, (slip op. at 7). Thus, in Booker resentencing when a sentence is increased or the same sentence is imposed for additional reasons based on judicial fact-finding. The court’s sentencing procedure has inflicted a greater punishment than the law annexed to the crime, when committed.

IV. Some Examples Of A Peugh Error

(1). In United States v. Harris, No.3:99-cr-264, the defendant was tried upon the second superseding indictment and was convicted of a single count of conspiracy to possess with intent to distribute heroin, cocaine, and cocaine base, and sentenced to life imprisonment. Thereafter, his sentence was vacated pursuant to Booker, 125 S.Ct. 738 (2005). (The sentence can be no higher than the range as calculated based on facts proven to the jury.)

At resentencing, the defendant made a timely objection to the “second addendum” to the presentence report (PSI). The second addendum alleged charges which were pending against the defendant in a seventh superseding indictment. Charges far different than those for which he faced on resentencing, that is, crimes for which he had not been tried upon, nor convicted of. ( Of greater importance, it should be noted that thereafter the seventh superseding indictment against the defendant Harris was dismissed.) Thus, the defendant claimed that the appropriate base offense level was 34 based upon the drug quantities found by the jury in their interrogatories. He objected to the application of the cross-reference under 2D1.1(d)(1), and the use of section 2A 1.1 first -degree murder guideline. Because his resentencing was based on a conviction of a single count of conspiracy to possess with intent to distribute heroin, cocaine and cocaine base. The defendant Harris has never been present in court, represented by counsel, and confronted with evidence of first-degree murder or any other acts of violence. Thus, at issue here is Calder’s fourth category of ex post facto laws, “[E]very 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.” Therefore, the court’s use of new laws (e.g., Booker remedy) allowed it to use “legal rules of evidence and receive less, or different, testimony, than the law required,” to inflict a greater punishment than the facts/ drug quantities found by the jury in their interrogatories. This ex post facto error resulted in the court imposing the same sentence of Life imprisonment without parole.

(2) In Peugh, the Supreme Court noted that a law can run afoul of the ex post facto clause even if it does not alter the statutory maximum punishment attached to the crime. (Citing, Lindsey v. Washington, 301 U.S. 397 (1937)). Where the Supreme Court considered an ex post facto challenge to a Washington law altering the statutory penalty for grand larceny from a range of 0 to 15 years imprisonment to a mandatory term of 15 years imprisonment. Although the upper boundary of the sentencing court’s power to punish remained unchanged it was enough that the petitioners were “deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-years term.” Lindsey, 301 U.S. at 402 (emphasis added).

This legal reasoning applies to United States v. Sessa, 92-CR-351 (ARR), Where the relevant conduct for which the defendant was found guilty of was the crime of murder in the second degree under the laws of New York state. Which is New York’s highest category of murder of general applicability. New York law does not employ the concept of “Premeditated” murder. Both the first and the second-degree murder statutes apply when the defendant has killed” with intent to cause the death of another person.” See N.Y. Penal Law sections 125.25 and 125.27. In Sessa’s case, the indictment and Jury’s verdict plainly reflect a murder in the second degree. Notably, the state’s statute defines murder as being second degree because first-degree murder is defined in 125.27 and is limited to, for example, the murder of specific victims such as Police Officers, Correctional Officers, a Witness to a crime, or by a defendant who at the time of the killing was in prison.

Thus, according to “the facts reflected in the jury’s verdict alone”, (in Sessa case) the Court should have applied the lower corresponding second-degree murder guidelines section 2A1.2, and it’s base offense level of 33, rather than offense level 43 under 2A1.1. See also, the application notes to the guidelines, (“If the underlying conduct violates State law, the offense level corresponding to the most analogous offense is to be used.”)

In sum, Sessa’s maximum authorized by the facts established by the jury’s verdict resulted in a 168 months sentence. An ex post facto error occurred here because Sessa was convicted of conduct that occurred in 1989. At sentencing, he was sentenced under the 1990 version of the Federal Sentencing Guidelines, rather than under the 1989 version in effect at the time the offense was committed. Sessa’s sentence range was 135 to 168 months, but the 1990 guidelines assigned severe consequences to his acts, yielding a mandatory term of Life imprisonment under level 43. Thus, Sessa’s sentence is unlawful because the Court used a formulation of the guideline that only came into effect after November 1, 1990 [after the conduct was committed. (See, Guideline Amendment 310 and 311).

V. Conclusion

In short, Courts cannot sentence defendants to more time in prison-based on newer guidelines when guidelines in effect at the time of the defendant’s conduct called for a shorter sentence. If you have any questions concerning Peugh, its ramifications and how it may affect your case, please contact www.federalcriminalparalegal.com. This might be a golden opportunity to obtain relief.

(First published in Craig Coscarelli’s Corrlinks Email Newsletter and used here by permission)

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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