Peugh v. United States
569 U.S. 530, 186 L. Ed. 2d 84, 2013 U.S. LEXIS 4359 (2013)
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Rule of Law:
The Ex Post Facto Clause is violated when a defendant is sentenced under advisory U.S. Sentencing Guidelines promulgated after the commission of their crime if the new version produces a higher sentencing range than the version in effect at the time of the offense.
Facts:
- Marvin Peugh and his cousin, Steven Hollewell, operated two farming-related businesses in Illinois.
- Beginning in 1999, their businesses experienced cash-flow problems.
- To address these issues, Peugh and Hollewell engaged in two fraudulent schemes between 1999 and 2000.
- First, they obtained bank loans by falsely representing the existence of contracts for future grain deliveries, causing over $2 million in losses to the bank.
- Second, they engaged in a 'check kiting' scheme, which allowed them to overdraw an account by $471,000.
Procedural Posture:
- Marvin Peugh was charged with nine counts of bank fraud in U.S. District Court.
- A jury convicted Peugh of five counts.
- At sentencing, the District Court applied the 2009 Guidelines, which recommended 70-87 months, rather than the 1998 Guidelines in effect at the time of the offense, which recommended 30-37 months.
- The District Court rejected Peugh's Ex Post Facto Clause argument, citing circuit precedent, and sentenced him to 70 months in prison.
- Peugh (appellant) appealed to the U.S. Court of Appeals for the Seventh Circuit.
- The Seventh Circuit, with the United States as appellee, affirmed the sentence, holding that the advisory nature of the post-Booker Guidelines meant there was no Ex Post Facto violation.
- The U.S. Supreme Court granted certiorari to resolve a circuit split on the issue.
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Issue:
Does a federal court's use of U.S. Sentencing Guidelines that were not in effect at the time of the offense and that recommend a higher sentencing range violate the Ex Post Facto Clause, even though the Guidelines are advisory?
Opinions:
Majority - Justice Sotomayor
Yes, using a retroactively enhanced advisory sentencing guideline violates the Ex Post Facto Clause. Even though the Guidelines are advisory after United States v. Booker, they remain the starting point and framework for all federal sentencing decisions. A sentencing court must calculate the applicable Guidelines range, and this calculation serves as the 'lodestone' that anchors the court's discretion and the appellate review process. This procedural structure creates a 'sufficient risk of increasing the measure of punishment' because empirical evidence shows that sentences tend to track upward and downward movements in the Guidelines ranges. This risk is significant enough to trigger the protections of the Ex Post Facto Clause, which safeguards fundamental fairness by ensuring the government abides by the rules of law it established at the time of an offense.
Dissenting - Justice Thomas
No, the retroactive application of advisory Sentencing Guidelines does not violate the Ex Post Facto Clause. Because the Guidelines are non-binding and advisory, they do not have the force of 'law' and do not constrain the discretion of sentencing courts. A district court is free to depart from the Guidelines based on its own individualized assessment or even a policy disagreement. Any 'risk' of an increased sentence stems from the Guidelines' persuasive force in helping a court achieve pre-existing statutory sentencing goals, not from any legal compulsion. The Ex Post Facto Clause is concerned with changes to the punishment 'annexed to the crime,' such as the statutory sentencing range, not with advisory materials that merely influence a judge's discretion within that range.
Dissenting - Justice Alito
No, retroactive application of amended advisory Guidelines does not violate the Ex Post Facto Clause. This opinion agrees with Justice Thomas's conclusion based on the Court's established 'sufficient risk' test but does not join the part of his dissent that advocates for reconsidering the test's validity or its relation to the original understanding of the Clause.
Analysis:
This decision clarifies that the Ex Post Facto Clause's protections extend to advisory sentencing schemes that, while not formally binding, exert a strong gravitational pull on judicial discretion. The Court affirmed that the U.S. Sentencing Guidelines, even post-Booker, are not mere suggestions but the fundamental starting point of the sentencing process, making retroactive increases in their ranges unconstitutional. This ruling solidifies the role of the Guidelines as the legal framework governing sentencing at the time of the offense, preventing prosecutors and courts from using later, harsher versions to a defendant's detriment. It ensures that the principles of fair warning and fundamental justice apply not just to changes in statutory maximums but also to the procedural and advisory frameworks that shape sentencing outcomes.
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