The Ramifications of Peugh

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 which would have significant impact with 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.

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FAQs: The Impact of the Alleyne Decision

By Craig M. Coscarelli


On June 17, 2013, the U.S. Supreme Court hand down a remarkable 5-4 decision in Alleyne v. United States,( No. 11-9335) (S. Ct. June 17, 2013) wherein the Court held that [a]ny fact that increases the mandatory minimum is an “element” that must be submitted to the jury and found beyond a reasonable doubt. The money quote from the majority opinion was ” because there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Apprendi. It is, accordingly, Overruled.” Alleyne, slip opinion, at page 15.

While the students of the law here at U.S.P. Lewisburg  have not had time yet to fully study the Alleyne case, based on a much-to-quick first read, and first cut reaction, we have put together the below list of frequently asked questions addressing how we believe the Alleyne decision will impact your case.

1) Is Alleyne Retroactive?

Answer: Whether or not a new rule of law announced by the Supreme Court is to apply retroactively in criminal cases on habeas review for the first time depends largely on whether this rule is substantive or procedural.

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