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.  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.  In United States v. Lewis, 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.  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. . .