Academic journal article Suffolk University Law Review

Criminal Law - Fourth Circuit Holds Retroactive Application of Federal Sentencing Guidelines Amendments Violates Ex Post Facto Clause

Academic journal article Suffolk University Law Review

Criminal Law - Fourth Circuit Holds Retroactive Application of Federal Sentencing Guidelines Amendments Violates Ex Post Facto Clause

Article excerpt

Criminal Law--Fourth Circuit Holds Retroactive Application of Federal Sentencing Guidelines Amendments Violates Ex Post Facto Clause--United States v. Lewis, 606 F.3d 193 (4th Cir. 2010)

The Ex Post Facto Clause of the United States Constitution prohibits retroactive laws that alter the definition of or increase the penalty for a criminal offense. (1) Accordingly, the use of amended sentencing guidelines at the time of sentencing, which call for a harsher penalty than that which existed at the time the offense was committed, has raised varying ex post facto concerns among the circuits. (2) In United States v. Lewis, (3) the United States Court of Appeals for the Fourth Circuit considered whether the application of newly revised sentencing guidelines, not in effect at the time of the crime's commission, violated the Ex Post Facto Clause. (4) The Fourth Circuit held that application of the more severe guideline amendments would violate the Ex Post Facto Clause, for although the guidelines are merely advisory in nature, their use created a "significant risk" of the defendant receiving an increased sentence. (5)

In 2006, Derrick E. Lewis was arrested following a probable cause search of his motor vehicle, during which the police retrieved a semiautomatic, nine-millimeter handgun. (6) Lewis, a convicted felon, was subsequently charged with and convicted of a single count of unlawfully possessing a firearm, in violation of 18 U.S.C. [section] 922(g)(1). (7) Subsequent to Lewis's arrest in 2006, but prior to his sentencing in 2009, the federal government amended the Federal Sentencing Guidelines (Guidelines). (8) The 2008 Guidelines created a harsher sentencing range of forty-one to fifty-one months for firearm possession, as compared with the twenty-one to twenty-seven month range advised by the guidelines in effect at the time of Lewis's arrest. (9)

At the sentencing hearing in 2009, Lewis objected to the Presentence Investigation Report prepared by the United States Probation Office. (10) Noting that the Probation Office calculated the sentencing range using the 2008 Guidelines, Lewis argued that retroactive application of the revised guidelines exposed him to a harsher sentence. (11) He also maintained that use of the 2008 Guidelines violated the Ex Post Facto Clause of the United States Constitution. (12)

The district court concurred with Lewis's argument regarding an ex post facto application of the 2008 Guidelines. (13) The court concluded that because an articulable basis would need to be proven to the court to compel deviation from the sentencing guidelines, the defendant would be unfairly prejudiced by use of the 2008 Guidelines. (14) The government appealed the ruling, maintaining that the case did not implicate the Ex Post Facto Clause, given the purely advisory nature of the sentencing guidelines. (15) The Fourth Circuit affirmed the district court's decision, reasoning that although legally the guidelines are deemed advisory, in practice they are effectively law, and thus implicate ex post facto considerations. (16)

Article 1, Section 9 of the United States Constitution prohibits Congress from passing any ex post facto laws. (17) An ex post facto law is one that changes the legal consequences of an act after its execution, either by "impos[ing] a punishment for an act which was not punishable at the time it was committed; or impos[ing] additional punishment to that then prescribed." (18) The framers incorporated the clause into the Constitution as a safeguard against the tyranny they experienced under the British monarchy. (19) Under the Crown, laws commonly criminalized behavior retroactively, or increased the punishment of a crime after its commission. (20) The Ex Post Facto Clause operated as a check on the legislative branch, ensuring that the newly formed federal government afforded citizens "fair notice and governmental restraint." (21) Additionally, in the same way the Ex Post Facto Clause restrained the legislative branch, the Due Process Clause barred courts from reinterpreting a statute in such a way as to retroactively alter the nature or punishment of a crime. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.