527 F. App'x 554
7th Cir.2013Background
- Marvin Peugh was convicted by a jury of five counts of bank fraud based on misrepresenting his companies’ contracts and inflating account balances with bad checks.
- He was sentenced to 70 months’ imprisonment and ordered to pay nearly $2 million in restitution.
- At sentencing the court applied the 2009 U.S. Sentencing Guidelines, which produced a range (70–87 months) substantially higher than the 1998 Guidelines range in effect when Peugh committed the offenses.
- Peugh appealed; the Seventh Circuit issued an opinion (675 F.3d 736) addressing multiple issues, including sentencing.
- The Supreme Court granted certiorari solely on the ex post facto question and held that applying the Guidelines in effect at sentencing (when they are more onerous than those in effect at the time of the offense) violates the Ex Post Facto Clause.
- The Supreme Court reversed and remanded; the Seventh Circuit, on remand, directed that the case be returned to the district court for resentencing consistent with the Supreme Court’s decision, reinstating its earlier opinion except for the ex post facto discussion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying Guidelines in effect at sentencing that are harsher than those in effect at the time of the offense violates the Ex Post Facto Clause | Government: retroactive application of changed Guidelines does not violate ex post facto (relying on circuit precedent) | Peugh: applying the later, more severe Guidelines penalizes conduct retroactively and violates the Ex Post Facto Clause | Supreme Court: using Guidelines in effect at sentencing in that circumstance violates the Ex Post Facto Clause; remand for resentencing |
| Remedy on remand | Government: accept remand and proceed under controlling precedent | Peugh: seek resentencing under proper Guidelines | Seventh Circuit: remand to district court for resentencing consistent with Supreme Court opinion; prior Seventh Circuit opinion reinstated except for ex post facto subsection |
Key Cases Cited
- Peugh v. United States, 133 S. Ct. 2072 (2013) (Supreme Court holding that applying Guidelines in effect at sentencing that are more onerous than those in effect at the time of the offense violates the Ex Post Facto Clause)
- United States v. Peugh, 675 F.3d 736 (7th Cir. 2012) (Seventh Circuit opinion addressing multiple issues in Peugh; vacated in part by Supreme Court, reinstated on remand except for ex post facto subsection)
- United States v. Demaree, 459 F.3d 791 (7th Cir. 2006) (prior Seventh Circuit precedent holding retroactive application of Guidelines does not create ex post facto problems)
- United States v. Sanchez, 710 F.3d 724 (7th Cir. 2013) (applications of Demaree in circuit decisions)
- United States v. Vallone, 698 F.3d 416 (7th Cir. 2012) (citation of Demaree and related circuit practice)
- United States v. Robertson, 662 F.3d 871 (7th Cir. 2011) (circuit sentencing precedent citing Demaree)
- United States v. Favara, 615 F.3d 824 (7th Cir. 2010) (another circuit decision declining to overrule Demaree)