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Wednesday, July 24, 2013
Dissent in Peugh as a Blueprint for Below-Guidelines Sentences
By Anthony S. Barkow and Alison I. Stein
Petitioner Marvin Peugh was convicted
Criminal defense attorneys and their clients
of five counts of bank fraud for conduct
recently scored a win in Peugh v. United
that occurred in 1999 and 2000. At his
States, a U.S. Supreme Court decision which
2010 sentencing, Peugh argued that the
held that a criminal defendant cannot be
Ex Post Facto Clause required that he be
sentenced based upon the current federal
sentenced under the 1998 version of the
Sentencing Guidelines if those guidelines call
By Kenyanna M. Scott
guidelines that were
in Makes
effect at an
the time of
for
a harsher punishment than the guidelines
What
and catharine L. du BoiS
his offense, rather
than
the 2009 version
that were in place at the time of the underlying
FCA
Case?
of the guidelines in effect at the time of
offense.HE
See FALSE
Peugh v. CLAIMS
United States, No. 12Generally, to establish a
1
imposes
Act
his sentencing. The
applicable
62, 2013 WL (FCA)
2459523 (U.S.
June 10, 2013).
prima
facie casesentencing
pursuant to
Anthony S. Barkow
Alison I. Stein
By Kenyanna
M.and
Scott
liabilityCourt
for,
protects
range under the the
2009
guidelines
was 70
The
Supreme
found
that imposing such
What
Makes
an
FCA,
the
plaintiff
must
and
catharine
L.
du
BoiS
the federal government from,
to
87
months,
considerably
higher
than
a sentence violates the Ex Post Facto Clause
FCA
Case?
demonstrate
that
Anthony S. Barkow is a partner and Alison
fraud inHEfinancial
interactions;
FALSEInterestingly,
CLAIMS beyond the
for
of
the Constitution.
(Generally,
1provided
) t h e to
d eestablish
fine nthe
d a n at
I. Stein is an associate in Jenner & Block's the 30 to 37 months
the law Act
is intended
to1encourage
imposes
(FCA)
presented
(or
induced
1998
guidelines.
The
district
court
rejected
obviously
helpful
holding,
Justice
Clarence
white collar defense and investigations
individuals
who
are protects
either
prima facie case pursuantthe
to
liability
for,
and
presentment
of)
ahim
claim
for
Peugh’s
argument
and
sentenced
to
70
Thomas’
dissent
may
offer
significant,
close
observers
or
involved
in
the
FCA,
the
plaintiff
must
group
in
New
York.
the federal government from,
reimbursement
by the
federal
months’ imprisonment.
The U.S.
Court
of
additional
help
to criminal
defendants in the
the
to
report
the alleged
demonstrate
that
fraudfraud
in financial
interactions;
government,
2
Appeals
for
the
Seventh
Circuit
affirmed,
but
the
Supreme
Court
sentencing
context.
Accordingly,
wrongdoing.
(
1
)
t
h
e
d
e
f
e
n
d
a
nt
the law is intended to encourage
(2) the claim
was falsethe
or
either
the
Attorney
General
or
presented
(or
induced
reversed.
individuals who are either
fraudulent,
and
a private
individual
on
behalf
presentment of) a claim for
In
his observers
dissent,
which
drew
the
close
or involved
in votes of four Justices, Justice
(3) the defendant
knew
of
the
government,
a
“qui
reimbursement
by the
federal
In
an
opinion
authored
by
Justice
Sonia
Sotomayor,
joined
byfalse
Thomas
argued
that,
because
the
Sentencing
Guidelines
the fraud to report the alleged
that
the
claim
was
or
tammerely
relator,”
an
government,
2 may assert indeed
4
Justices Anthony Kennedy, Ruth Bader Ginsburg,
Stephen
Breyer,
are
advisory—and
have “no legal effect on a
Accordingly,
wrongdoing.
fraudulent.
FCA
(2) the claim was false or
eitherclaim.
the Attorney
General ordo not create a sufficient risk of an
and Elena Kagan, the court found that the Sentencing
Guidelines,
defendant’s
sentence”—they
Traditionally,
fraudulent,
and and apparent
In
event
theon
claim
is do four justices now believe that
a private
individual
behalf
although not mandatory, have enough of from
an (3)
anchoring
effectofon
ex
postthe
facto
violation.
Not
only
the
elements
a prima
the defendant
knew
brought
a quiGuidelines
tam relator,
the relator
stands
to receive
a portion of facie
of Sentencing
the by
government,
a “qui
thesoFCA
protect that
against
the
false
claims
of
districtcase,
courts
as toapplied
create “atosufficient
risk
of
a
higher
sentence”
the
have
“no legal
effect
on a defendant’s
the claim was false or
any
recovered
damages.
The
FCA
provides
both
treble
damages
and
tam
relator,”
may
assert
an
physicians,
for
reimbursement
from
4 that a sentence
for someonehealthcare
in Peugh’sproviders
position.and
Thepatients
court
thus
held
sentence,” the four dissenters made clear their belief that the
fraudulent.
fines
between $5,500 and $11,000 per fraudulent claim.
FCA of
claim.
programs
including
Medicare
and Medicaid.
based upon
Sentencing
Guidelines
that wereTraditionally,
promulgatedand
after
Sentencing Guidelines “do not constrain the discretion” of the
apparent
In
the
healthcare
arena,
the
FCA protects the government against
The
efficacy
of
an
FCA
claim
to
police
a
manufacturer’s
truthful
In
the
event
the
claim
is
a
defendant
committed
his
criminal
act,
and
which
increase
that
sentencing
judge,
that
sentencing
judges
can
depart
from
a
from
the
elements
of
a prima
false
claims
for
reimbursement
from
medical
assistance
programs
off-label
promotion
of
its
product
is
reflected
in
its
power
to
induce
brought by sentence
a qui tam on
relator,
the relator
stands
to receive a portion
case, the
FCA applied
to protect
false
claims
of
defendant’s
sentencing
range, violates
theagainst
Ex Postthe
Facto
Clause.
guidelines
the basis
of policy
disagreement,
and
thatof facie
including
Medicaid
or
Medicare—for
example,
claims
filed
for
medical
settlement.
To
date,
few
courts
have
addressed
whether
the
FCA
is
any
recovered
damages.
The
FCA
provides
both
treble
damages
and
physicians,
healthcare
providers
and
patients
for
reimbursement
from
aservices
sentence
on older,
harsh Sentencing
Guidelines is
notbased
rendered
or and
for less
overpriced
medical
services.
properly
applied
to
manufacturers
and
truthful
off-label
promotional
fines of between
$5,500
$11,000 per
fraudulent
claim.
programs
including
Medicare
and
The courtbecause
gave several
reasons
forMedicaid.
its
holding.
it noted
that,
likely
be found on
appeal to the
be substantively
reasonable.
As
In
atoremarkable
FCA,
a recent
trend has emerged
the
threat
of treble
damages
andFirst,
stiff fines
encourage
In the
healthcareextension
arena, theofFCA
protects
the government
against activities
The
efficacy
of
an
FCA
claim
to
police
a manufacturer’s
truthful
using
it
to
police
off-label
promotion
and
subjecting
manufacturers
although
advisory,
the
guidelines
range
is
“intended
to,
and
usually
atoward
result,
the
dissent
is
useful
to
support
arguments
for
sentences
settlement,
often
at
a
terrific
cost
to
the
manufacturer.
false claims for reimbursement from medical assistance programs off-label promotion of its product is reflected in its power to induce
to
verythe
large
fines, despite
the factGuidelines
that
the same
fines
would
not be does,
controlling
influence on
the sentence
that theincludes
court will
below
applicable
range.
Theexert
government’s
promoting
suchwhether
claims
including
Medicaid
or Sentencing
Medicare—for
example,
claims
filed
for medical
To date, rationale
few courtsforhave
addressed
the FCAthe
is
3
This settlement.
available
under
the
Food,
Drug
and
Cosmetics
Act
(FDCA).
purported
deterrence
“vital
to
public
health
and
safety”
of
pharmaceutical
impose.”
District
courts
must
begin
their
sentencing
determination
services not rendered or for overpriced medical services.
properly
applied
to
manufacturers
and
truthful
off-label
promotional
article
will analyze
the elements
the FCA
andtrend
its application
to companies
“improperly
marketing
their
drugs
toand
doctors
and
patients
to
by calculating
thethe
applicable
range,
and
major
The
Decision
InPeugh
a remarkable
extension
of theofFCA,
a recent
has emerged
activities
because
threat
of guidelines
treble
damages
stiff“afines
encourage
5
pharmaceutical
manufacturer’s
promotional
activities
and
will
address
According
treat
illnesses
that
these
drugs
are
not
approved
to
treat.”
toward
using
it to
police off-label
andEx
subjecting
manufacturers
departure should
beasupported
bytoa more
significant justification
In
Peugh,
the
Supreme
Court promotion
held that the
Post Facto
Clause
settlement,
often at
terrific cost
the manufacturer.
thevery
emerging
trenddespite
of using
the
FCA
asthe
a tool
tofines
extract
enormous
aThe
U.S.
Attorney,
“[t]he
illegal
marketing
ofjudge’s
prescription
medications
to
large fines,
the
fact
that
same
would
not be to
than
a
minor
one.”
Second,
a
district
court
sentencing
of
the
Constitution
is
violated
when
a
defendant
is
sentenced
government’s
rationale
for
promoting
such claims
includes
the
settlementunder
amounts
from
manufacturers.
3
for
unauthorized
medical
uses
is
a
serious
crime
that
poses
significant
This
available
the
Food,
Drug
and
Cosmetics
Act
(FDCA).
purported
to public
health
and safety”
of pharmaceutical
decision isdeterrence
anchored“vital
by the
appellate
review
process.
A court of
under the current federal Sentencing Guidelines and those
public health
risks [and]marketing
[d]rug manufacturers
have
a legal
obligation
article will
analyzeprovide
the elements
of the sentencing
FCA and itsrange
application
“improperly
their within
drugs tothe
doctors
and patients
to
appeals
may
presume
that
a for
sentence
guidelines
range is
current
guidelines
for afederal
higher
than
theto companies
to
market
their
products
only
medical
uses
that
have
been
approved
Kenyanna
M.
Scott,
a
former
prosecutor,
is
a
partner
in
Jenner
pharmaceutical manufacturer’s promotional activities and will address treat illnesses that these drugs are not approved to treat.”5 According
reasonable,
and
may
further
“consider
the
extent
of
the
deviation”
guidelines
that
were
in
effect
at
the
time
of
the
crime.
6
&
New trend
York office
and athe
member
firm’stolitigation
Food
and Drug
Administration
as safe
and effective.”
theBlock’s
emerging
of using
FCAofasthe
a tool
extractdepartment.
enormous by
to athe
U.S.
Attorney,
“[t]he
illegal marketing
of prescription
medications
catharine
L. du Bois
is an associate in the firm’s Chicago office.
Such
protection
is
afforded
by
regulation
ofposes
the Food
and
settlement amounts
from manufacturers.
for unauthorized medical uses is a serious crime that
significant
These False Claims Act cases are arguably improper.
New
sco
m.c
om
New
sco
m.c
om
T
T
These False Claims Act cases are arguably improper.
public health risks [and] [d]rug manufacturers have a legal obligation
Kenyanna M. Scott, a former federal prosecutor, is a partner in Jenner to market their products only for medical uses that have been approved
& Block’s New York office and a member of the firm’s litigation department. by the Food and Drug Administration as safe and effective.”6
catharine L. du Bois is an associate in the firm’s Chicago office.
Such protection is afforded by regulation of the Food and
Reprinted with permission from the July 24, 2013 issue of the New York Law Journal @ 2013 ALM Media Properties, LLC. Further duplication
without permission is prohibited. All rights reserved.
NEW YORK LAW JOURNAL
from the guidelines range as part of its reasonableness review on
appeal. In addition, a district court judge’s failure to calculate the
correct guidelines range is procedural error, which “ensures that
[the guidelines] remain the starting point for every sentencing
calculation in the federal system.” For these reasons, the court
found that the guidelines remain the “lodestone of sentencing,” and
thus, a “retrospective increase in the Guidelines range applicable
to a defendant creates a sufficient risk of a higher sentence to
constitute an ex post facto violation.”1
In dissent, Justice Thomas, joined by Chief Justice John Roberts
and Justices Antonin Scalia and Samuel Alito, argued that,
although the Sentencing Guidelines may “nudge the sentencing
judge toward a sentencing range,” they are merely advisory.
As such, they “do not constrain the discretion of district courts
and, thus, have no legal effect on a defendant’s sentence.”
Accordingly, the retroactive application of the Sentencing
Guidelines does not create a “sufficient risk” of increasing a
defendant’s punishment, and thus, cannot constitute an ex post
facto violation.2 As discussed more fully below, the dissent
contains strong language about the Sentencing Guidelines that
criminal defense attorneys can rely upon to argue for belowguidelines sentences for their clients.
Landscape Before Peugh
The court’s statements in Peugh—in both the majority opinion
and the dissent—are hardly a surprise to those who have watched
the Supreme Court’s sentencing revolution unfold during the past
dozen or so years. Through a series of sentencing decisions, the
court has provided criminal defendants with multiple avenues
to argue for lower sentences, and has more generally called into
question the persuasive force of the federal Sentencing Guidelines.
The dissent in Peugh can—and should—be viewed by criminal
defense attorneys as another iteration of this revolution.
The primary catalyst for this change was Apprendi v. New Jersey,
530 U.S. 466 (2000), in which the court held that the Sixth
Amendment right to a trial by jury required that, other than the fact
of a prior conviction, any fact necessary to authorize a defendant’s
sentence beyond the statutory maximum sentence for a crime must
be found by a jury beyond a reasonable doubt. Apprendi ushered in
a new era of sentencing decisions in which the court strengthened
criminal defendants’ Sixth Amendment rights.
Four years later, in Blakely v. Washington, 542 U.S. 296 (2004),
the court found that the State of Washington’s sentencing
scheme violated Blakely’s Sixth Amendment rights because it
allowed the sentencing judge to increase his sentence beyond the
statutory maximum for the underlying crime based on additional
facts not found by the jury. Because of the similarities between
WEDNESDAY, JULY 24, 2013
Washington’s sentencing scheme and the federal Sentencing
Guidelines, after Blakely, the constitutionality of the federal
Sentencing Guidelines became immediately suspect.
The next year, in United States v. Booker, 542 U.S. 220 (2005),
the court held that the federal Sentencing Guidelines violate
the Sixth Amendment because they allow a judge to impose a
sentence based on facts not found by a jury. A separate fivejustice majority determined that the appropriate remedy would
be to sever and excise 18 U.S.C. §3553(b)(1), the portion of
the sentencing statute that made the guidelines mandatory. In
addition, the court severed and excised 18 U.S.C. §3742(e), the
provision of the same statute that set forth the standard of review
on appeal, instead reading into the statute a “reasonableness”
standard of review. By so doing, the court rendered the federal
Sentencing Guidelines merely advisory.
Finally, the court recently held in Alleyne v. United States that,
because mandatory minimum sentences increase the penalty for
a crime, any fact necessary to impose a mandatory minimum
sentence is an “element” of a crime that must be found by the
jury. No. 11-9335, 2013 WL 2922116 (U.S. June 17, 2013).
The Peugh Dissent
Peugh’s majority opinion is obviously helpful to criminal
defendants. But the Peugh dissent can also be relied upon
by criminal defense attorneys when advocating for a belowguidelines sentence for their clients.
First, the dissent, joined by four justices, makes clear that the
Sentencing Guidelines are sufficiently non-persuasive and
non-binding on district court judges as to not even create a risk
of a cognizable ex post facto violation. Indeed, in perhaps the
strongest rhetoric by any members of the court to date regarding
the diminished force of the Sentencing Guidelines, the dissent
proclaims that the Sentencing Guidelines “do not constrain the
discretion of district courts, and, thus, have no legal effect on a
defendant’s sentence.” The dissent further notes that a district
court “may not presume that a within-Guidelines sentence
is appropriate,” but rather, “must make an individualized
assessment of the appropriate sentence based on the facts
presented.” Criminal defense attorneys can and should cite this
language when encouraging a sentencing judge to depart or vary
downward from the guidelines.
Second, the dissent, reinforcing recent Supreme Court precedent,
explicitly acknowledges the fact that a district court may “freely
depart” from the guidelines range not only because of the court’s
individualized factual assessment, but also because the court
simply disagrees with the Sentencing Commission’s views. In
NEW YORK LAW JOURNAL
other words, the dissent makes clear that a departure from the
guidelines can be based solely on a “policy disagreement with the
Guidelines themselves.” This sort of explicit acceptance of policybased arguments by the Supreme Court should be embraced by
criminal defense attorneys in their sentencing submissions.
Third, with respect to any possible constraints imposed upon
a sentencing judge because of subsequent appellate review of
that sentence (a factor relied upon by the majority in finding
an ex post facto violation), the dissent acknowledges that
the reason a district judge must provide an explanation for
an outside-the-guidelines sentence is to ensure “meaningful
appellate review.” However, the dissent reiterates that an
appellate court may not presume that a sentence outside the
applicable guidelines range is unreasonable. Rather, appellate
courts must review all sentences—within the guidelines range
or outside the guidelines range—under the deferential abuseof-discretion standard. The dissent reiterates that a sentencing
judge’s “freedom to impose a reasonable sentence outside the
[guidelines] range is unfettered.”
Finally, and perhaps most significantly, the dissent strongly
suggests that a sentence based upon older, lower Sentencing
Guidelines is likely to be found substantively reasonable on
appeal. In response to petitioner Peugh’s argument that the
guidelines limit district court discretion because sentences
falling outside the guidelines are more likely to be reversed on
WEDNESDAY, JULY 24, 2013
appeal for substantive unreasonableness, the dissent notes its
doubt…that reversal is a likely outcome when a district judge
can justify his sentence based on agreement with either of two
Guidelines—the old or the new. If a district court calculated
the sentencing range under the new Guidelines but sentenced
the defendant to a below-Guidelines sentence that fell within
the range provided by the old Guidelines, it would be difficult
to label such a sentence “substantively unreasonable.” To do so
would cast doubt on every within-Guidelines sentence issued
under the old Guidelines.
This passage of the dissent should encourage criminal defense
attorneys to include in their sentencing submissions a calculation
of the sentencing range that would have been applied to their
client under older, lower Sentencing Guidelines. Indeed, postPeugh, there is a greater likelihood that a sentence that falls
within an older, lower Sentencing Guidelines range will be found
to be substantively reasonable on appeal.
In sum, the dissent in Peugh—joined by four Justices—
explicitly states that the federal Sentencing Guidelines do not
create “any hurdle at all” for district courts wishing to depart
from a guidelines sentencing range. This is another significant
step forward in the sentencing revolution. Criminal defense
attorneys should seize upon this strong rhetoric when advocating
for below-guidelines sentences on behalf of their clients, and
should brace themselves for further developments to come.
Endnotes:
1. Justice Anthony Kennedy did not join another part of the opinion which discusses the “basic principles of fairness that animate the Ex Post Facto Clause.”
2. Justice Thomas also argued for a reformulation of ex post facto doctrine in two parts of the dissent not joined by any other justices.