Supreme Court Opinion of Ex Post Facto Issue in Using Guidelilnes after Acts of Crime(s) of Conviction (6/10/13)

The Supreme Court just decided Peugh v. United States, 569 U. S. ____ (2013), here, holding that, in sentencing, the Constitution's Ex Post Facto Clause requires use of the latest Guidelines in effect at the time of the commission of the offense if later Guidelines increased the punishment.  Some courts and practitioners had thought that Booker had solved that problem.

Here is the syllabus which captures the Supreme Court equivalent of a sound bite of its reasoning -- OK more than a sound bite, but no substitute for reading the entire opinions.  I will read the entire opinions later and offer any comments that i think would be helpful.  In the meantime, here is the syllabus:

Petitioner Peugh was convicted of five counts of bank fraud for conduct that occurred in 1999 and 2000. At sentencing, he argued that the Ex Post Facto Clause required that he be sentenced under the 1998 version of the Federal Sentencing Guidelines in effect at the time of his offenses rather than under the 2009 version in effect at the time of sentencing. Under the 1998 Guidelines, Peugh’s sentencing range was 30 to 37 months, but the 2009 Guidelines assigned more severe consequences to his acts, yielding a range of 70 to 87 months. The District Court rejected Peugh’s ex post facto claim and sentenced him to 70 months’ imprisonment. The Seventh Circuit affirmed 

Held: The judgment is reversed, and the case is remanded. 

675 F. 3d 736, reversed and remanded.  

JUSTICE SOTOMAYOR delivered the opinion of the Court, except as to Part III–C, concluding that the Ex Post Facto Clause is violated when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher sentencing range than the version in place at the time of the offense. Pp. 4–13, 15–20. 

(a) Though no longer mandatory, see United States v. Booker, 543 U. S. 220, the Guidelines still play an important role in sentencing procedures. A district court must begin “by correctly calculating the applicable Guidelines range,” Gall v. United States, 552 U. S. 38, 49, and then consider the parties’ arguments and factors specified in 18 U. S. C. §3553(a). 552 U. S., at 49–50. The court “may not presume that the Guidelines range is reasonable,” id., at 50, and must explain the basis for its sentence on the record, ibid. On appeal, a sentence is reviewed for reasonableness under an abuse-of-discretion standard. Id., at 51. A district court is to apply the Guidelines “in effect on the date the defendant is sentenced,” §3553(a)(4)(A)(ii), but, per the Guidelines, is to use the Guidelines in effect on the date the offense was committed should the Guidelines in effect on the sentencing date be found to violate the Ex Post Facto Clause. Pp. 4–7

(b) The Constitution forbids the passage of ex post facto laws, a category including, as relevant here, “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Calder v. Bull, 3 Dall. 386, 390. The “scope of this Latin phrase” is given “substance by an accretion of case law.” Dobbert v. Florida, 432 U. S. 282, 292. 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. Pp. 7–8. 

(c) The most relevant prior decision is Miller v. Florida, 482 U. S. 423. There, the Court found an ex post facto violation when the petitioner was sentenced under Florida’s new sentencing guidelines,which yielded a higher sentencing range than the guidelines in place at the time of his crime. The pre-existing guidelines would have required the sentencing judge to provide clear and convincing reasons in writing for any departure, and the sentence would have been reviewable on appeal. But under the new guidelines, a sentence within the guidelines range required no explanation and was unreviewable. Variation in the sentence, though possible, was burdensome; so in the ordinary case, a defendant would receive a within-guidelines sentence. Thus, increasing the applicable guidelines range created a significant risk of a higher sentence. 

The same principles apply to the post-Booker federal sentencing scheme, which aims to achieve uniformity by ensuring that sentencing decisions are anchored by the Guidelines. Normally, a “judge will use the Guidelines range as the starting point in the analysis and impose a sentence within the range.” Freeman v. United States, 564
U. S. ___, ___. That the court may impose a sentence outside that range does not deprive the Guidelines of force as the framework for sentencing. Uniformity is also promoted by appellate review for reasonableness with the Guidelines as a benchmark. Appellate courts may presume a within-Guidelines sentence is reasonable, see Rita v. United States, 551 U. S. 338, 347, and may “consider the extent of the deviation” from the Guidelines as part of their reasonableness review, Gall, 552 U. S., at 51. The sentencing regime also puts in place procedural hurdles that, in practice, make imposition of a non-Guidelines sentence less likely. Florida’s scheme and the federal regime differ, but those differences are not dispositive. Common sense indicates that the federal system generally will steer district courts to more within-Guidelines sentences, and considerable empirical evidence suggests that the Guidelines have that effect. A retrospective increase in an applicable Guidelines range thus creates a sufficient risk of a higher sentence to constitute an ex post facto violation. Pp. 9–13. 

(d) The Government’s contrary arguments are unpersuasive. Its principal claim is that the Sentencing Guidelines lack sufficient legal effect to attain the status of a “law” within the meaning of the Ex Post Facto Clause. Changes in law need not bind a sentencing authority for there to be an ex post facto violation, and “[t]he presence of discretion does not displace the protections of [that] Clause.” Garner, 529 U. S., at 253. As for contrasts between the Federal Guidelines and the Florida system in Miller, the difference between the two systems is one in degree, not in kind. The attributes of post-Booker sentencing fail to show that the Guidelines are but one among many persuasive sources a sentencing court may consult in making a decision.Recognizing an ex post facto violation here is consistent with post-Booker Sixth Amendment cases. The Court’s Sixth Amendment cases, which focus on when a given finding of fact is required to make a defendant legally eligible for a more severe penalty, are distinct from its ex post facto cases, which focus on whether a change in law creates a “significant risk” of a higher sentence. The Booker remedy was designed, and has been subsequently calibrated, to exploit precisely this distinction: promoting sentencing uniformity while avoiding a Sixth Amendment violation. Nothing in this case undoes the holdings of such cases as Booker, Rita, and Gall. Pp. 15–19. 

SOTOMAYOR, J., delivered the opinion of the Court, except as to Part III–C. GINSBURG, BREYER, and KAGAN, JJ., joined that opinion in full, and KENNEDY, J., joined except as to Part III–C. THOMAS, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined as to Parts I and II–C. ALITO, J., filed a dissenting opinion, in which SCALIA, J., joined.

For students -- A Good Summary of Where we Are on Booker

The opinion has a good summary on the state of sentencing after Booker, as refined by the later cases.  I quote here that summary, with case citations except Booker and quotation marks omitted so that the flow of the reasoning is better comprehended:

Prior to 1984, the broad discretion of sentencing courts and parole officers had led to significant sentencing disparities among similarly situated offenders. To address this problem, Congress created the United States Sentencing Commission. The Sentencing Reform Act of 1984, eliminated parole in the federal system and directed the Sentencing Commission to promulgate uniform guidelines that would be binding on federal courts at sentencing. The Commission produced the now familiar Sentencing Guidelines: a system under which a set of inputs specific to a given case (the particular characteristics of the offense and offender) yielded a predetermined output (a range of months within which the defendant could be sentenced). 

In United States v. Booker, 543 U. S. 220, 244  (2005), however, this Court held that mandatory Guidelines ran afoul of the Sixth Amendment by allowing judges to find facts that increased the penalty for a crime beyond the maximum authorized by the facts established by a plea of guilty or a jury verdict. The appropriate remedy for this violation, the Court determined, was to strike those portions of the Sentencing Reform Act that rendered the Guidelines mandatory. Under the resulting scheme, a district court is still required to consult the Guidelines. But the Guidelines are no longer binding, and the district court must consider all of the factors set forth in §3553(a) to guide its discretion at sentencing. The Booker remedy, while not the system Congress enacted, was designed to continue to move sentencing in Congress’ preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary.  

Our subsequent decisions have clarified the role that the Guidelines play in sentencing procedures, both at the district court level and when sentences are reviewed on appeal. First, a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The district court must then consider the arguments of the parties and the factors set forth in §3553(a). The district court may not presume that the Guidelines range is reasonable, and it may in appropriate cases impose a non-Guidelines sentence based on disagreement with the Sentencing Commission’s views. The district court must explain the basis for its chosen sentence on the record. A major departure from the Guidelines should be supported by a more significant justification than a minor one. 

On appeal, the district court’s sentence is reviewed for reasonableness under an abuse-of-discretion standard. Failure to calculate the correct Guidelines range constitutes procedural error, as does treating the Guidelines as mandatory. The court of appeals may, but is not required to, presume that a within-Guidelines sentence is reasonable. The reviewing court may not apply a heightened standard of review or a presumption of unreasonableness to sentences outside the Guidelines range, although it will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. We have indicated that a district court’s decision to vary from the advisory Guidelines may attract greatest respect when it is based on the particular facts of a case. n2 Overall, this system “requires a court to give respectful consideration to the Guidelines,” but it “permits the court to tailor the sentence in light of other statutory concerns as well.”
   n2 We have left open the question whether closer appellate review of a non-Guidelines sentence may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range fails properly to reflect §3553(a) considerations’ even in a mine-run case.  Resolution of this case does not require us to assess the merits of this issue. 

Under 18 U. S. C. §3553(a)(4)(A)(ii), district courts are instructed to apply the Sentencing Guidelines issued by the United States Sentencing Commission that are in effect on the date the defendant is sentenced. The Sentencing Guidelines reiterate that statutory directive, with the proviso that if the Court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the Ex Post Facto Clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed. Whether the Ex Post Facto Clause was violated by the use of the more onerous Guidelines in effect on the date of Peugh’s sentencing is the question presented here.  

* * * * 

The post-Booker federal sentencing scheme aims to achieve uniformity by ensuring that sentencing decisions are anchored by the Guidelines and that they remain a meaningful benchmark through the process of appellate review. As we have described, district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process. Failing to calculate the correct Guidelines range constitutes procedural error. A district court contemplating a non-Guidelines sentence must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.  

These requirements mean that in the usual sentencing the judge will use the Guidelines range as the starting point in the analysis and impose a sentence within the range. Even if the sentencing judge sees a reason to vary from the Guidelines, if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the sentence. That a district court may ultimately sentence a given defendant outside the Guidelines range does not deprive the Guidelines of force as the framework for sentencing. Indeed, the rule that an incorrect Guidelines calculation is procedural error ensures that they remain the starting point for every sentencing calculation in the federal system. 

Similarly, appellate review for reasonableness using the Guidelines as a benchmark helps promote uniformity by tending to iron out sentencing differences. Courts of appeals may presume a within-Guidelines sentence is reasonable, and they may further consider the extent of the deviation” from the Guidelines as part of their reasonableness review. The post-Booker sentencing regime puts in place procedural hurdles that, in practice, make the imposition of a non-Guidelines sentence less likely.