Previously, the U.S. Supreme Court struck down the United States Sentencing Guidelines ("USSG" or "Guidelines")because Courts need to consider wider ranges of factors for sentencing a defendant than those contained within the Guidelines and for prohibiting appellate review of sentences that were prescribed by the Guidelines.
The Court has set oral argument in a new case, Peugh v. United States in which it is to consider whether using Guidelines versions not in effect at sentencing violates the Ex Post Facto Clause contained in Article I, Section 9 of the U.S. Constitution. The Ex Post Facto Clause prohibits later criminal laws from applying retroactively to an offense committed before their effective date. Eight (8) U.S. Courts of Appeals have decided that applying versions of the USSG not in effect at the time of sentencing, in which there was a risk of a greater sentence than if using the version applicable at the time of sentencing, violated the Ex Post Facto Clause. However, the United States Circuit Court of Appeals for the Seventh Circuit disagreed with the other eight (8) courts of Appeal.
The Seventh Circuit determined that, since the USSG became advisory and not mandatory for a sentencing court to follow (as a result of earlier being held unconstitutional), it need not be followed and, thus, did not violated the Ex Post Facto Clause.
The U.S. Supreme Court will hear oral argument on February 26, 2013 in Peugh and is expected to squarely decide whether a sentencing court may or may not apply a Guidelines Manual that was not in effect on the date the defendant was to be sentenced and whether doing so would violate the United States Constitution.