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U.S. Supreme Court: Ex Post Facto Clause limits application of new federal sentencing guidelines

Marvin Peugh v. United States, USSC No. 12-62, 6/10/13

United States Supreme Court decision, reversing United States v. Peugh, 675 F.3d 736 (7th Cir. 2012)

Resolving a split between federal circuit courts, the Supreme Court holds that a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing instead of the Guidelines in effect at the time of the offense, if the new version of the Guidelines provides a higher applicable sentencing range than the old version.

Peugh committed bank fraud in 1999 and 2000, but wasn’t sentenced until 2010. The U.S. Sentencing Guidelines had changed between the time of offense and sentencing. Under the 1998 version in effect when he committed the crimes, Peugh’s sentencing range was 30 to 37 months; under the 2009 version, his range was 70 to 87 months. (Slip op. at 2-3). The sentencing court rejected his argument that using the 2009 version violated the Ex Post Facto Clause, and the Seventh Circuit Court of Appeals affirmed, relying on circuit precedent, United States. v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006).

Under Calder v. Bull, 3 Dall. 386, 390 (1798), the definition of ex post facto laws includes “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” (Slip op. at 7-8). This definition does not “precisely delimit” the scope of the ex post facto protection, and more recent cases hold that the “touchstone” of the inquiry is whether a given change in law presents a “‘sufficient risk of increasing the measure of punishment attached to the covered crimes.’” Garner v. Jones, 529 U.S. 244, 250 (2000), quoting California Dept. of Corrections v. Morales, 514 U. S. 499, 509 (1995). (Slip op. at 8).

The government argued that the 2009 Guidelines did not increase Peugh’s punishment because, after United States v. Booker, 543 U.S. 220 (2005), they are only “advisory,” and no longer binding on the sentencing court. (Slip op. at 8, 15). But “[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause.” (Slip op. at 16, quoting Garner, 529 U.S. at 253. This is clear from Miller v. Florida, 482 U. S. 423 (1987), which found an ex post facto violation after the defendant was sentenced at the top of a new, higher sentencing guideline range than the guideline range in place at the time of his crime, and under a sentencing scheme in which a within-guidelines sentence required no explanation and was unreviewable. (Slip op. at 9-10). While judges had discretion to deviate from the recommended range under in Miller, the sentencing scheme was designed to “channel” sentencing decisions:  “Its reason-giving requirements and standards of appellate review meant that while variation was possible, it was burdensome; and so in the ordinary case, a defendant would receive a within-guidelines sentence.” Under that system, therefore, an increase in the guidelines range created a significant risk the offender would receive a higher sentence. (Slip op. at 10).

“The same principles apply here,” the Court concludes. (Slip op. at 10). While the federal Guidelines are no longer binding, they nonetheless are “the starting point and the initial benchmark” for the sentence, Gall v. United States, 552 U.S. 38, 49 (2007). The Guideline range is not presumptively reasonable, but a “major” departure from it should be supported by a more significant justification than a minor one; and on appeal, the reviewing court may presume that a sentence within the Guideline range is reasonable, id. at 49-51, and Rita v. United States, 551 U.S. 338, 347 (2007). (Slip op. at 4-5, 10-13). Though it concedes Peugh’s case is “more difficult” than Miller because of the differences in the two guidelines regimes, the Court concludes the differences are not dispositive. (Slip op. at 12).

The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing. 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. (Slip op. at 13).

Peugh’s case therefore falls within Calder‘s definition of ex post facto violations because:

“[T]he Ex Post Facto Clause forbids the [government] to enhance the measure of punishment by altering the substantive `formula’ used to calculate the applicable sentencing range.” Morales, 514 U.S., at 505. That is precisely what the amended Guidelines did here. (Slip op. at 19-20).

Justice Thomas (joined by Chief Justice Roberts and, in part, by Justices Scalia and Alito) dissented, saying “[w]e have never held that government action violates the Ex Post Facto Clause when it merely influences the exercise of the sentencing judge’s discretion.” (Dissent at 2). And that is all the new Guidelines do, in his view. They “do not constrain the discretion of district courts and, thus, have no legal effect on a defendant’s sentence.” (Id.) And, “to the extent that the amended Guidelines create a risk that a defendant might receive a harsher punishment, that risk results from the Guidelines’ persuasive force, not any legal effect.” (Id.).

This case is of immediate interest to lawyers handling federal criminal cases in the Seventh Circuit, for the decision changes the law in the circuit. It has no direct impact on the bulk of state practice, as most criminal offenses in Wisconsin are not subject to sentencing guidelines after repeal of our latest failed guideline effort. The exception (noted in our post on the cert grant) is the guidelines for operating with a prohibited blood alcohol content under § 346.65(2m)(a). (They can also be considered in OWI cases. State v. Kuechler, 2003 WI App 245, ¶10, 268 Wis. 2d 192, 673 N.W.2d 335.) Like the federal guidelines, the judge must consider the guidelines, but they are “discretionary, not mandatory, guidelines.” State v. Jorgensen, 2003 WI 105, ¶27 n.6, 264 Wis. 2d 157, 667 N.W.2d 318. While applying a new  § 346.65(2m)(a) guideline to old conduct will raise an ex post facto issue, we have a more laissez faire attitude toward judges’ sentencing explanations and sentencing review than the federal system, and so do less to “channel” sentencing decisions. That may dilute a claim the PAC guidelines are such an influential “lodestone” in sentencing that use of a new guideline creates a significant risk of a higher sentence.

A note about doctrine: As Rory Little, a Scotusblog commentator, explained in more detail before and after oral argument in this case, the parties took divergent approaches to the test for determining whether the Ex Post Facto Clause has been violated. Peugh, citing Garner and Morales, argued a legal change that creates a “significant risk of increased punishment” invokes ex post facto protections. The government advanced a narrower test, citing Calder’s relevant category—“a law that changes the punishment”—and language from Garner and Morales about a law that “increases the penalty by which a crime is punishable.” As noted above, the majority relies on both parties’ formulations. Justice Thomas’s dissent claims the Court’s current ex post facto jurisprudence is unworkable, and “little more than an exercise in judicial intuition.” (Dissent at 9). Only Chief Justice Roberts appears to agree, at least in this case; so for now the test remains the same.

UPDATE (6/12/13): For those readers interested in reading more about the doctrinal cross-currents in the opinion, Rory Little’s detailed opinion analysis is worth the read.

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