PEUGH v. UNITED STATES
In 1996, Marvin Peugh and Steven Hollewell formed two companies: the Grainary, Inc., which bought, stored and sold grain; and Agri-Tech, Inc., which provided custom farming services to landowners and tenants. From January 1999 to August 2000, the two obtained bank loans by falsely representing future contracts and inflating the bank accounts by writing bad checks between the two accounts. Peugh pleaded not guilty to all counts, while Hollewell pleaded guilty to one count and agreed to testify against Peugh in exchange for the other charges being dropped. After a jury trial, Peugh was convicted on five counts of bank fraud. At sentencing, Peugh argued that he should be sentenced under the 1999 U.S. Sentencing Guidelines that were in effect at the time of the offense, rather than the 2009 Guidelines that were in effect at the time of sentencing. He argued that use of the later Guidelines violated the Ex Post Facto Clause. He was sentenced to 70 months in prison, and he and Hollewell were jointly ordered to pay nearly $2 million. The U.S. Court of Appeals for the Seventh Circuit affirmed.
Does the use of the U.S. Sentencing Guidelines in effect at the time of sentencing rather than those in effect at the time of the offense violate the Ex Post Facto Clause if there is significant risk that the newer Guidelines would result in a longer sentence?
Legal provision: Article I, Ex Post Facto Clause
Yes. Justice Sonia Sotomayor delievered the opinion for the 5-4 majority. The Court held that Peugh’s sentencing violated the ex post facto clause because, although the Supreme Court has held that the Sentencing Guidelines are not binding on lower courts, the Guidelines still must be used as an initial benchmark for sentencing. By setting an initial benchmark, the Guidelines forbid the government from altering the formula used to calculate an appropriate sentencing range. The lower court’s refusal to apply the previous Guidelines in this case created a type of ex post facto law that changed the nature of a crime by inflicting a greater punishment than would be applied when the crime was committed.
In his dissent, Justice Clarence Thomas wrote that the Guidelines are not binding on lower courts, so they have no legal effect on a defendant’s sentences. He also argued that any risk that a defendant might receive a harsher sentence results from the Guidelines’ persuasive power, not any legal effect. Chief Justice John G. Roberts, Jr., Justice Samuel A. Alito, Jr., and Justice Antonin Scalia joined in the dissent. Justice Alito, joined by Justice Scalia, also filed a separate dissent in which he argued that retroactive application of advisory guidelines do not violate the test established in California Dept. of Corrections v. Morales. Under that test, laws only violate the ex post facto clause if they create a “sufficient risk” of increasing the measure of punishment attached to a crime.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
MARVIN PEUGH, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the seventh circuit
[June 10, 2013]
Justice Sotomayor delivered the opinion of the Court, except as to Part III–C.*
The Constitution forbids the passage of ex post facto laws, a category that includes “[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 (1798) (emphasis deleted). The U. S. Sentencing Guidelines set forth an advisory sentencing range for each defendant convicted in federal court. We consider here whether there is an ex post facto violation when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense. We hold that there is.I
Petitioner Marvin Peugh and his cousin, Steven Hollewell, ran two farming-related businesses in Illinois. Grainery, Inc., bought, stored, and sold grain; Agri-Tech, Inc., provided farming services to landowners and tenants. When the Grainery began experiencing cash-flow problems, Peugh and Hollewell engaged in two fraudulent schemes. First, they obtained a series of bank loans by representing falsely the existence of contracts for future grain deliveries from Agri-Tech to the Grainery. When they failed to pay back the principal on these loans, the bank suffered losses of over $2 million. Second, they artificially inflated the balances of accounts under their control by “check kiting,” or writing bad checks between their accounts. This scheme allowed them to overdraw an account by $471,000. They engaged in their illicit conduct in 1999 and 2000.
When their acts were uncovered, Peugh and Hollewell were charged with nine counts of bank fraud, in violation of 18 U. S. C. §1344. While Hollewell pleaded guilty to one count of check kiting, Peugh pleaded not guilty and went to trial, where he testified that he had not intended to defraud the banks. The jury found him guilty of five counts of bank fraud and acquitted him of the remaining counts.
At sentencing, Peugh 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. The two versions yielded significantly different results for Peugh’s applicable Guidelines sentencing range. Under the 1998 Guidelines, Peugh’s base offense level was 6. United States Sentencing Commission, Guidelines Manual §2F1.1 (Nov. 1998) (USSG). Thirteen levels were added for a loss amount of over $2.5 million, ibid., and 2 levels for obstruction of justice because of Peugh’s perjury at trial, see USSG §3C1.1 (Nov. 1998). The total offense level under the 1998 Guidelines was therefore 19. As a first-time offender, Peugh was in Criminal History Category I, and so his sentencing range under the 1998 Guidelines was 30 to 37 months. USSG, ch. 5, pt. A (Nov. 1998).
The 2009 Guidelines in effect when Peugh was sentenced in May 2010 assigned more severe consequences to his acts. First, the base offense level was raised from 6 to 7 for crimes, like Peugh’s, that have a statutory maximum term of imprisonment of 20 years or more. See USSG §2B1.1 (Nov. 2009); 18 U. S. C. §1344. Second, the enhancement for a loss exceeding $2.5 million was 18, a 5-level increase from the 1998 Guidelines. USSG 2B1.1 (Nov. 2009). After adding the 2-level enhancement for obstruction of justice, Peugh’s total offense level under the 2009 Guidelines was 27. With a Criminal History Category of I, Peugh’s sentencing range rose under the 2009 Guidelines to 70 to 87 months. USSG, ch. 5, pt. A (Nov. 2009). The low end of the 2009 Guidelines range was 33 months higher than the high end of the 1998 Guidelines range.
At the sentencing hearing, the District Court rejected Peugh’s argument that applying the 2009 Guidelines violated the Ex Post Facto Clause, noting that it was foreclosed by Seventh Circuit precedent. App. 30 (discussing United States v. Demaree, 459 F. 3d 791 (2006)). The District Court declined to give Peugh a downward variance, concluding that “a sentence within the [G]uideline[s] range is the most appropriate sentence in this case,” App. 100. It sentenced Peugh to 70 months’ imprisonment, ibid., the bottom of the 2009 Guidelines range.
The Seventh Circuit, in keeping with its decision in Demaree, rejected Peugh’s ex post facto claim and affirmed his conviction and sentence. 675 F. 3d 736 (2012). We granted certiorari to resolve a conflict among the Courts of Appeals over whether the Ex Post Facto Clause may be violated when a defendant is sentenced under the version of the Sentencing Guidelines in effect at the time of sentencing rather than the version in effect at the time the crime was committed, and the newer Guidelines yield a higher applicable sentencing range. 2 568 U. S. ___ (2012). We now reverse.II
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. Mistretta v. United States, 488 U. S. 361 –367 (1989). The Sentencing Reform Act of 1984, 98Stat. 1987, eliminated parole in the federal system and directed the Sentencing Commission to promulgate uniform guidelines that would be binding on federal courts at sentencing. Mistretta, 488 U. S., at 367. 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.” See also Apprendi v. New Jersey, 530 U. S. 466, 490 (2000) . The appropriate remedy for this violation, the Court determined, was to strike those portions of the Sentencing Reform Act that rendered the Guidelines mandatory. Booker, 543 U. S., at 245–258. Under the resulting scheme, a district court is still required to consult the Guidelines. See id., at 259–260, 264; 18 U. S. C. §3553(a)(4)(A). 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, see Booker, 543 U. S., at 259–260, 264. 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.” Id., at 264–265.
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.” Gall v. United States, 552 U. S. 38, 49 (2007) (citation omitted). The district court must then consider the arguments of the parties and the factors set forth in §3553(a). Id., at 49–50. The district court “may not presume that the Guidelines range is reasonable,” id., at 50; and it “may in appropriate cases impose a non-Guidelines sentence based on disagreement with the [Sentencing] Commission’s views,” Pepper v. United States, 562 U. S. ___, ___ (2011) (slip op., at 23) (citing Kimbrough v. United States, 552 U. S. 85 –110 (2007)). The district court must explain the basis for its chosen sentence on the record. Gall, 552 U. S., at 50. “[A] major departure [from the Guidelines] should be supported by a more significant justification than a minor one.” Ibid.
On appeal, the district court’s sentence is reviewed for reasonableness under an abuse-of-discretion standard. See id., at 51; Booker, 543 U. S., at 261–264. Failure to calculate the correct Guidelines range constitutes procedural error, as does treating the Guidelines as mandatory. Gall, 552 U. S., at 51. The court of appeals may, but is not required to, presume that a within-Guidelines sentence is reasonable. Rita v. United States, 551 U. S. 338, 347 (2007) . 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.” Gall, 552 U. S., at 49–51. 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. Kimbrough, 552 U. S., at 109. 3 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.” Id., at 101 (internal quotation marks omitted).
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 “[i]f the Court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the [E]x [P]ost [F]acto [C]lause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.” USSG §§1B1.11(a), (b)(1) (Nov. 2012). 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.III A
The Constitution prohibits both federal and state governments from enacting any “ex post facto Law.” Art. I, §9, cl. 3; Art. I, §10. The phrase “ ‘ex post facto law’ was a term of art with an established meaning at the time of the framing.” Collins v. Youngblood, 497 U. S. 37, 41 (1990) . In Calder v. Bull, Justice Chase reviewed the definition that the term had acquired in English common law:
“1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” 3 Dall., at 390 (emphasis deleted).
See also Carmell v. Texas, 529 U. S. 513 –525 (2000) (discussing Calder v. Bull and the common-law understanding of the term). Building on Justice Chase’s formulation of what constitutes an “ex post facto Law,” our cases “have not attempted to precisely delimit the scope of this Latin phrase, but have instead given it substance by an accretion of case law.” Dobbert v. Florida, 432 U. S. 282, 292 (1977) .
At issue here is Calder’s third category of ex post facto laws, those that “chang[e] the punishment, and inflic[t] a greater punishment, than the law annexed to the crime, when committed.” 3 Dall., at 390. Peugh’s claim is that the Clause was violated because the 2009 Guidelines call for a greater punishment than attached to bank fraud in 2000, when his crimes were completed. The Government counters that because the more punitive Guidelines applied at Peugh’s sentencing were only advisory, there was no ex post facto problem.
Each of the parties can point to prior decisions of this Court that lend support to its view. On the one hand, we have never accepted the proposition that a law must increase the maximum sentence for which a defendant is eligible in order to violate the Ex Post Facto Clause. See, e.g., Lindsey v. Washington, 301 U. S. 397 (1937) . Moreover, the fact that the sentencing authority exercises some measure of discretion will also not defeat an ex post facto claim. See Garner v. Jones, 529 U. S. 244, 253 (2000) . On the other hand, we have made it clear that mere speculation or conjecture that a change in law will retrospectively increase the punishment for a crime will not suffice to establish a violation of the Ex Post Facto Clause. See California Dept. of Corrections v. Morales, 514 U. S. 499, 509 (1995) . The touchstone of this Court’s inquiry is whether a given change in law presents a “ ‘sufficient risk of increasing the measure of punishment attached to the covered crimes.’ ” Garner, 529 U. S., at 250 (quoting Morales, 514 U. S., at 509). The question when a change in law creates such a risk is “a matter of degree”; the test cannot be reduced to a “single formula.” Id., at 509 (internal quotation marks omitted). 4B
The most relevant of our prior decisions for assessing whether the requisite degree of risk is present here is Miller v. Florida, 482 U. S. 423 (1987) , in which this Court considered an ex post facto challenge to a sentencing guidelines scheme implemented by the State of Florida. Under Florida’s system, a calculation under the guidelines yielded a presumptive sentencing range. Id., at 426. This range was assumed to be appropriate, and the sentencing judge had discretion to fix a sentence within that range “ ‘without the requirement of a written explanation.’ ” Ibid. (quoting Fla. Rule Crim. Proc. 3.701(d)(8) (1983)). If the court wished to depart from the guidelines range, however, it was required to give “clear and convincing reasons in writing for doing so.” 482 U. S., at 426. A within-guidelines sentence was unreviewable; a non-guidelines sentence was subject to appellate review. Ibid.
The petitioner in Miller had been sentenced under new guidelines that yielded a higher sentencing range than the guidelines that had been in place at the time of his crime, and he had received a sentence at the top of the new range. Ibid. This Court found an ex post facto violation. We emphasized that in order to impose the petitioner’s sentence under the pre-existing guidelines, the sentencing judge would have been required to provide clear and convincing reasons in writing for the departure, and the sentence would then have been reviewable on appeal. Id., at 432. In contrast, because the sentence imposed was within the new guidelines range, it required no explanation and was unreviewable. Id., at 432–433. The fact that Florida’s guidelines “create[d] a high hurdle that must be cleared before discretion can be exercised” was sufficient to render the changed guidelines an ex post facto law. Id., at 435.
Miller thus establishes that applying amended sentencing guidelines that increase a defendant’s recommended sentence can violate the Ex Post Facto Clause, notwithstanding the fact that sentencing courts possess discretion to deviate from the recommended sentencing range. The sentencing scheme in Miller was designed to channel sentences for similarly situated offenders into a specified range. 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 the Florida system, therefore, an increase in the guidelines range applicable to an offender created a significant risk that he would receive a higher sentence. 5 The same principles apply 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. See Kimbrough, 552 U. S., at 107. As we have described, “district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.” Gall, 552 U. S., at 50, n. 6 (emphasis added). Failing to calculate the correct Guidelines range constitutes procedural error. Id., at 51. 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.” Id., at 50. See also Pepper, 562 U. S., at ___ (Breyer, J., concurring in part and concurring in judgment) (slip op., at 1) (“[T]he law permits the court to disregard the Guidelines only where it is ‘reasonable’ for a court to do so” (citing Booker, 543 U. S., at 261–262)).
These requirements mean that “[i]n the usual sentencing, . . . the 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. ___, ___ (2011) (plurality opinion) (slip op., at 5). 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.” Ibid. (emphasis added). See also id., at ___ (Sotomayor, J., concurring in judgment) (slip op., at 2) (stating that outside the context of a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, “in the normal course the district judge’s calculation of the Guidelines range applicable to the charged offenses will serve as the basis for the term of imprisonment imposed”). 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 “tend[ing] to iron out sentencing differences.” Booker, 543 U. S., at 263. Courts of appeals may presume a within-Guidelines sentence is reasonable, see Rita, 551 U. S., at 347, and they may further “consider the extent of the deviation” from the Guidelines as part of their reasonableness review, Gall, 552 U. S., at 51. As in Miller, then, the post-Booker sentencing regime puts in place procedural “hurdle[s]” that, in practice, make the imposition of a non-Guidelines sentence less likely. See 482 U. S., at 435.
This is a more difficult case than Miller, because there are relevant differences between Florida’s sentencing scheme and the current federal sentencing regime. The Florida Legislature had made a within-guidelines sentence unreviewable; whereas in the federal system, the courts of appeals may—but are not required to—presume that a within-Guidelines sentence is reasonable. And under Florida’s scheme, a sentencing court departing from the guideline range was required to provide “clear and convincing” reasons for the departure; whereas this Court has not, post-Booker, applied such an exacting across-the-board standard of review to variances. Rather, we have held that a district court varying from the Federal Guidelines should provide an explanation adequate to the extent of the departure. See Gall, 552 U. S., at 51.
But contrary to the arguments advanced by the Government and Justice Thomas’ dissent (hereinafter dissent), see Brief for United States 23–24; post, at 5–6, these differences are not dispositive. Although the federal system’s procedural rules establish gentler checks on the sentencing court’s discretion than Florida’s did, they nevertheless impose a series of requirements on sentencing courts that cabin the exercise of that discretion. Common sense indicates that in general, this system will steer district courts to more within-Guidelines sentences.
Peugh points to considerable empirical evidence indicating that the Sentencing Guidelines have the intended effect of influencing the sentences imposed by judges. Even after Booker rendered the Sentencing Guidelines advisory, district courts have in the vast majority of cases imposed either within-Guidelines sentences or sentences that depart downward from the Guidelines on the Government’s motion. See United States Sentencing Commission, 2011 Sourcebook of Federal Sentencing Statistics, p. 63 (Figure G) (16th ed.) (USSC). In less than one-fifth of cases since 2007 have district courts imposed aboveor below-Guidelines sentences absent a Government motion. See ibid. See also Baron-Evans & Stith, Booker Rules, 160 U. Pa. L. Rev. 1631, 1677 (2012). Moreover, the Sentencing Commission’s data indicate that when a Guidelines range moves up or down, offenders’ sentences move with it. See USSC, Final Quarterly Data Report, FY 2012, p. 32 (Figure C); USSC, Report on the Continuing Impact of United States v. Booker on Federal Sentencing, Pt. A, pp. 60–68 (2012). 6
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.C
Our holding today is consistent with basic principles of fairness that animate the Ex Post Facto Clause. The Framers considered ex post facto laws to be “contrary to the first principles of the social compact and to every principle of sound legislation.” The Federalist No. 44, p. 282 (C. Rossiter ed. 1961) (J. Madison). The Clause ensures that individuals have fair warning of applicable laws and guards against vindictive legislative action. See Weaver v. Graham, 450 U. S. 24 –29 (1981); see also post, at 11–13. Even where these concerns are not directly implicated, however, the Clause also safeguards “a fundamental fairness interest . . . in having the government abide by the rules of law it establishes to govern the cir-cumstances under which it can deprive a person of his or her liberty or life.” Carmell, 529 U. S., at 533.
The Sentencing Guidelines represent the Federal Government’s authoritative view of the appropriate sentences for specific crimes. When Peugh committed his crime, the recommended sentence was 30 to 37 months. When he was sentenced, it was 70 to 87 months. “[T]he purpose and effect of the change in [the Guidelines calculation] was to increase the rates and length of incarceration for [fraud].” Miller, 482 U. S., at 431 (citing Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So. 2d 824, 824, n. (1984) (per curiam) (internal quotation marks and alterations omitted)). Such a retrospective increase in the measure of punishment raises clear ex post facto concerns. We have previously recognized, for instance, that a defendant charged with an increased punishment for his crime is likely to feel enhanced pressure to plead guilty. See Carmell, 529 U. S., at 534, n. 24; Weaver, 450 U. S., at 32. This pressure does not disappear simply because the Guidelines range is advisory; the defendant will be aware that the range is intended to, and usually does, exert controlling influence on the sentence that the court will impose.
We are therefore not persuaded by the argument advanced by the Government and also suggested by the dissent that the animating principles of the Ex Post Facto Clause are not implicated by this case. While the Government argues that the Sentencing Commission is insulated from legislative interference, see Brief for United States 42–44, our precedents make clear that the coverage of the Ex Post Facto Clause is not limited to legislative acts, see Garner, 529 U. S., at 247, 257 (recognizing that a change in a parole board’s rules could, given an adequate showing, run afoul of the Ex Post Facto Clause). It is true that we held, in Irizarry v. United States, 553 U. S. 708 –714 (2008), that a defendant does not have an “expectation subject to due process protection” that he will be sentenced within the Guidelines range. But, contrary to the dissent’s view, see post, at 11–13, the Ex Post Facto Clause does not merely protect reliance interests. It also reflects principles of “fundamental justice.” Carmell, 529 U. S., at 531. 7IV
The Government’s principal argument that there is no constitutional violation in this case 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. Whereas the pre-Booker Guidelines “ha[d] the force and effect of laws,” Booker, 543 U. S., at 234, the post-Booker Guidelines, the Government contends, have lost that status due to their advisory nature. The dissent echoes this argument. Post, at 1–3, 6–8.
The distinction that the Government draws is necessarily a fine one, because our precedents firmly establish that changes in law need not bind a sentencing authority in order to violate the Ex Post Facto Clause. So, for example, a law can run afoul of the Clause even if it does not alter the statutory maximum punishment attached to a crime. In Lindsey v. Washington, 301 U. S. 397 , this Court considered an ex post facto challenge to a Washington law altering the statutory penalty for grand larceny from a range of 0 to 15 years’ imprisonment to a mandatory term of 15 years’ imprisonment. Although the upper boundary of the sentencing court’s power to punish remained unchanged, it was enough that the petitioners were “deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term.” Id., at 402 (emphasis added).
In addition, our cases make clear that “[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause.” Garner, 529 U. S., at 253. In a series of cases, for example, this Court has considered the validity under the Ex Post Facto Clause of state laws altering the terms on which discretionary parole or early release was available to prisoners. See Garner, 529 U. S. 244 ; Morales, 514 U. S. 499 ; Weaver, 450 U. S. 24 . Although these cases reached differing conclusions with respect to whether there was an ex post facto violation, in none of them did we indicate that the mere fact that the prisoner was not guaranteed parole but rather received it at the will of the parole board was fatal to his claim. See Garner, 529 U. S., at 253; Morales, 514 U. S., at 508–510, and n. 6; Weaver, 450 U. S., at 30–31.
The Government does not challenge these holdings but rather argues, in essence, that the Guidelines are too much like guideposts and not enough like fences to give rise to an ex post facto violation. It contrasts the Sentencing Guidelines with the Florida system at issue in Miller, which, the Government indicates, really did place “a substantial legislative constraint on the judge’s exercise of sentencing discretion.” Brief for United States 21. But as we have explained at length, the difference between the federal system and the scheme the Court considered in Miller is one in degree, not in kind. The Florida system did not achieve its “binding legal effect,” Brief for United States 22, by mandating a within-guidelines sentence in every case. Rather, it achieved its “binding legal effect” through a set of procedural rules and standards for appellate review that, in combination, encouraged district courts to sentence within the guidelines. See Miller, 482 U. S., at 432–433. We have detailed all of the ways in which the federal sentencing regime after Booker does the same. 8
The Government elaborates its argument that the Sentencing Guidelines do not have adequate legal force to constitute an ex post facto violation by reviewing the various features of the post-Booker sentencing regime that, in its view, tend to render the Guidelines purely advisory. As we have noted, district courts may not presume that a within-Guidelines sentence is reasonable; they may “in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission’s views,” Pepper, 562 U. S., at ___ (slip op., at 23); and all sentences are reviewed under a deferential abuse-of-discretion standard. See supra, at 5–6.
While the Government accurately describes several attributes of federal sentencing after Booker, the conclusion it draws by isolating these features of the system is ultimately not supportable. On the Government’s account, the Guidelines are just one among many persuasive sources a sentencing court can consult, no different from a “policy paper.” Brief for United States 28. The Government’s argument fails to acknowledge, however, that district courts are not required to consult any policy paper in order to avoid reversible procedural error; nor must they “consider the extent of [their] deviation” from a given policy paper and “ensure that the justification is sufficiently compelling to support the degree of the variance,” Gall, 552 U. S., at 50. Courts of appeals, in turn, are not permitted to presume that a sentence that comports with a particular policy paper is reasonable; nor do courts of appeals, in considering whether the district court’s sentence was reasonable, weigh the extent of any departure from a given policy paper in determining whether the district court abused its discretion, see id., at 51. It is simply not the case that the Sentencing Guidelines are merely a volume that the district court reads with academic interest in the course of sentencing.
Of course, as the Government and the dissent point out, notwithstanding a rule that retrospective application of a higher Guidelines range violates the Ex Post Facto Clause, sentencing courts will be free to give careful consideration to the current version of the Guidelines as representing the most recent views of the agency charged by Congress with developing sentencing policy. See post, at 8 (citing Demaree, 459 F. 3d, at 795). But this does not render our holding “purely semantic.” Id., at 795. District courts must begin their sentencing analysis with the Guidelines in effect at the time of the offense and use them to calculate the sentencing range correctly; and those Guidelines will anchor both the district court’s discretion and the appellate review process in all of the ways we have described. The newer Guidelines, meanwhile, will have the status of one of many reasons a district court might give for deviating from the older Guidelines, a status that is simply not equivalent for ex post facto purposes.
Finally, the Government contends that a rule that the Ex Post Facto Clause is violated by the application of an increased Guidelines range would be in tension with this Court’s post-Booker cases and, indeed, would “largely undo . . . the Booker remedy” for the Sixth Amendment violation found there. Brief for United States 35. If the Guidelines are binding enough to trigger an ex post facto violation, the argument goes, then they must be binding enough to trigger a Sixth Amendment violation as well. The Government’s argument assumes that the Sixth Amendment and the Ex Post Facto Clause share a common boundary; that only where judge-found facts are the basis of a higher sentence in a manner that raises Sixth Amendment concerns can a set of sentencing rules be sufficiently determinate to run afoul of the Ex Post Facto Clause. But the Sixth Amendment and Ex Post Facto Clause inquiries are analytically distinct. Our Sixth Amendment cases have focused on when a given finding of fact is required to make a defendant legally eligible for a more severe penalty. Our ex post facto cases, in contrast, have focused on whether a change in law creates a “significant risk” of a higher sentence; here, whether a sentence in conformity with the new Guidelines is substantially likely. The Booker remedy was designed, and has been subsequently calibrated, to exploit precisely this distinction: it is intended to promote sentencing uniformity while avoiding a Sixth Amendment violation. In light of the statistics invoked by petitioner, see supra, at 12–13, it appears so far to be achieving this balance. Nothing that we say today “undo[es]” the holdings of Booker, Rita, Gall, Kimbrough, or our other recent sentencing cases.* * *
The arguments put forward by the Government and the dissent cannot unseat the conclusion that Peugh’s case falls within Calder’s third category of ex post facto violations. “[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. Doing so created a “significant risk” of a higher sentence for Peugh, Garner, 529 U. S., at 251, and offended “one of the principal interests that the Ex Post Facto Clause was designed to serve, fundamental justice,” Carmell, 529 U. S., at 531. 9 For these reasons, we reverse the judgment of the Seventh Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
1 *Justice Kennedy joins this opinion except as to Part III–C.
2 Compare United States v. Demaree, 459 F. 3d 791, 795 (CA7 2006), with United States v. Wetherald, 636 F. 3d 1315, 1321–1322 (CA11 2011); United States v. Ortiz, 621 F. 3d 82, 87 (CA2 2010); United States v. Lewis, 606 F. 3d 193, 199–203 (CA4 2010); United States v. Lanham, 617 F. 3d 873, 889–890 (CA6 2010); United States v. Turner, 548 F. 3d 1094, 1099–1100 (CADC 2008).
3 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.” Kimbrough, 552 U. S., at 109 (quoting Rita, 551 U. S., at 351). Resolution of this case does not require us to assess the merits of this issue.
4 Justice Thomas, raising the issue on his own initiative, would reject our established Ex Post Facto Clause framework. Post, at 9–13. We decline to revisit settled precedent, and we reject Justice Thomas’ assertion that our case law has become “unworkab[le],” post, at 9, simply because it requires case-by-case judgments.
5 Miller employed a “substantial disadvantage” test that this Court has since abandoned. See California Dept. of Corrections v. Morales, 514 U. S. 499 –507, n. 3 (1995). The relevant question is whether the change in law creates a “ ‘sufficient’ ” or “significant” risk of increasing the punishment for a given crime. Garner v. Jones, 529 U. S. 244, 250, 251 (2000) . As we have made clear, however, the result in Miller remains sound. See Morales, 514 U. S., at 506–507, n. 3.
6 The Government does not dispute these statistics. It argues instead that by relying on aggregated data, Peugh glosses over the fact that non-Guidelines sentences are more common for certain crimes and that some individual judges are less likely to follow the Guidelines than others. Brief for United States 49–50. But these arguments do not refute the basic point that the applicable Guidelines channel sentences toward the specified range, even if they do not fix them within it.
7 Of course, “while the principle of unfairness helps explain and shape the Clause’s scope, it is not a doctrine unto itself, invalidating laws under the Ex Post Facto Clause by its own force.” Carmell, 529 U. S., at 533, n. 23.
8 The Government likens the Sentencing Guidelines system to the Parole Commission’s Parole Release Guidelines, which established an advisory framework for parole decisions, see United States Parole Comm’n v. Geraghty, 445 U. S. 388, 391 (1980) , and argues that Miller indicated that retrospectively applying more stringent parole guidelines would not have constituted an ex post facto violation. The issue ofthe constitutional validity of the retrospective application of the parole guidelines, however, was not before the Court in Miller. While the Miller Court did state that lower court cases discussing the federal parole guidelines were “inapposite” to its discussion of the Florida guidelines, 482 U. S., at 434–435, it had no occasion to address whether changes to the parole guidelines generated an ex post facto problem.
9 There may be cases in which the record makes clear that the District Court would have imposed the same sentence under the older, more lenient Guidelines that it imposed under the newer, more punitive ones. In such a case, the ex post facto error may be harmless. See Chapman v. California, 386 U. S. 18 (1967) . Here, however, the Government does not argue that any ex post facto violation was harmless. And indeed, any such argument would fail in light of the fact that the District Court rejected Peugh’s ex post facto claim in keeping with Circuit precedent, applied the new Guidelines, and indicated at sentencing that “a sentence within the [G]uideline range is the most appropriate sentence in this case.” App. 30, 100.
SUPREME COURT OF THE UNITED STATES
MARVIN PEUGH, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the seventh circuit
[June 10, 2013]
Justice Alito, with whom Justice Scalia joins, dissenting.
I agree with Justice Thomas that retroactive application of amended advisory Guidelines does not violate the Ex Post Facto Clause under our “sufficient risk” test. See California Dept. of Corrections v. Morales, 514 U. S. 499, 509 (1995) . I do not have occasion in this case to reconsider that test’s merits or its relation to the original understanding of the Clause.
SUPREME COURT OF THE UNITED STATES
MARVIN PEUGH, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the seventh circuit
[June 10, 2013]
Justice Thomas, with whom the Chief Justice, Jus-tice Scalia, and Justice Alito join as to Parts I and II–C, dissenting.
The Constitution prohibits Congress from passing ex post facto laws. Art. I, §9, cl. 3. The retroactive application of the 2009 Guidelines did not alter the punishment affixed to petitioner’s crime and does not violate this pro-scription. I would affirm the Seventh Circuit’s decision denying petitioner’s ex post facto claim. Therefore, I respectfully dissent.I
It is well established that an ex post facto law includes “[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 (1798) (opinion of Chase, J.). Under our precedents, the relevant inquiry for determining whether a law “inflicts a greater punishment,” is whether the “retroactive application of the change in [the] law created ‘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) ). The retroactive application of subsequently amended Guidelines does not create a “sufficient risk” of increasing a defendant’s punishment for two reasons. First, the Guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant’s sentence. Second, 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. The Guidelines help district judges to impose sentences that comply with §3553(a). The risk of an increased sentence is, in essence, the risk of a more accurate sentence—i.e., a sentence more in line with the statutory scheme’s penological goals. Guideline changes that help district courts achieve such pre-existing statutory sentencing goals do not create a risk of an increased sentence cognizable under the Ex Post Facto Clause. We have never held that government action violates the Ex Post Facto Clause when it merely influences the exercise of the sentencing judge’s discretion.A
The Federal Sentencing Guidelines do not constrain the discretion of district courts. As we have said repeatedly, the Guidelines are “advisory.” United States v. Booker, 543 U. S. 220, 245 (2005) (remedial opinion for the Court by Breyer, J.). For this reason, district courts may not “presume” that a within-Guidelines sentence is appropriate. Gall v. United States, 552 U. S. 38, 50 (2007) ; see also Nelson v. United States, 555 U. S. 350, 352 (2009) (per curiam) (the Guidelines range is “not to be presumed reasonable”); Rita v. United States, 551 U. S. 338, 351 (2007) (“[T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply”). Rather, district courts must “make an individualized assessment” of the appropriate sentence “based on the facts presented.” Gall, supra, at 50. Moreover, a district court may freely depart from the range recommended by the Guidelines based not only on “an individualized determination that [the Guidelines] yield an excessive sentence in a particular case,” but also based on “policy dis-agreement” with the Guidelines themselves. Spears v. United States, 555 U. S. 261, 264 (2009) (per curiam); see Pepper v. United States, 562 U. S. ___, ___ (2011) (slip op., at 23) (“[O]ur post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission’s views”).
It is true that a district judge who “decides that an outside-Guidelines sentence is warranted” must “ensure that the justification is sufficiently compelling to support the degree of the variance” and that “a major departure should be supported by a more significant justification than a minor one.” Gall, 552 U. S., at 50. This does not demonstrate that the Guidelines constrain the judge’s dis-cretion, but rather comports with the notion that an explanation is essential for “meaningful appellate review.” Ibid. And, when a district court departs from the recommended range, the court of appeals may not presume that such a sentence is unreasonable. Id., at 47; id., at 41 (“[C]ourts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard”). While “[t]he applicable guideline [may] nudg[e] [the sentencing judge] toward the sentencing range,” “his freedom to impose a reasonable sentence outside the range is unfettered.” United States v. Demaree, 459 F. 3d 791, 795 (CA7 2006).
None of petitioner’s arguments to the contrary is persuasive. Petitioner first contends that the Guidelines constrain district courts’ discretion because improperly calculating the applicable guidelines is reversible error. Brief for Petitioner 20–21, and n. 7; 18 U. S. C. §3742(f); Cf. Gall, 552 U. S., at 51. This argument is a non sequitur. The Guidelines can only serve their advisory purpose if district courts consider the “range established” by the Guidelines, §3553(a)(4). For this reason, district courts must “begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” Id., at 49. But the fact that courts must give due consideration to the recommendation expressed in the correct Guidelines does not mean that the Guidelines constrain the district court’s discretion to impose an appropriate sentence; it simply means that district courts must consider the correct vari-ables before exercising their discretion.
Petitioner next argues that the Guidelines limit district court discretion because sentences falling outside the Guidelines are more likely to be reversed for substantive unreasonableness. Brief for Petitioner 25. I doubt, however, 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 un-der the old Guidelines. Similarly, it is hard to imagine that a court of appeals would reverse a sentence for substantive unreasonableness if it was above the range of the Guidelines in effect at the time of the offense but fell within the range of the most up-to-date Guidelines. This case provides an apt example. After considering all of the §3553(a)(2) factors, the District Court concluded that a sentence within the amended Guidelines range was “the most appropriate sentence in this case.” App. 100. The same sentence would undoubtedly be upheld on appeal if the District Court, on remand, once again determined that a sentence within the amended Guidelines was appropriate in light of all the facts. The essential point is that once new Guidelines have been promulgated, reasonableness review does not meaningfully constrain the discretion of district courts to sentence offenders within either of the two ranges.
The majority argues that our opinion in Miller v. Flor-ida, 482 U. S. 423 (1987) , supports its conclusion that retroactive application of advisory Guidelines violates the Ex Post Facto Clause. See ante, at 9–10. But Miller leads to the opposite conclusion. There, Florida superimposed narrowed presumptive sentencing ranges on the statutory sentencing ranges for particular crimes. 482 U. S., at 425–426. If a judge imposed a sentence within that narrower presumptive range, he did not need to give a written explanation of his reasons for selecting that sentence, and the sentence was not subject to appellate review. Ibid. If the judge imposed a sentence outside the presumptive range, however, he was required to provide “ ‘clear and convincing reasons,’ ” id., at 426 (quoting Fla. Rule Crim. Proc. 3.701(d)(11) (1983)), based “on facts proved beyond a reasonable doubt,” that justified the departure, 482 U. S., at 432. In concluding that retroactive application of this scheme violated the Ex Post Facto Clause, we reasoned that the Florida guidelines did not “simply provide flexible ‘guideposts’ for use in the exercise of discretion: instead, they create[d] a high hurdle that must be cleared before discretion c[ould] be exercised.” Id., at 435.
The Court cites Miller for the proposition “that applying amended sentencing guidelines that increase a defendant’s recommended sentence can violate the Ex Post Facto Clause, notwithstanding the fact that sentencing courts possess discretion to deviate from the recommended sentencing range.” Ante, at 10. But that claim is not supported by Miller. The guidelines in Miller violated the Ex Post Facto Clause precisely because they constrained the sentencing judge’s discretion.
The Federal Guidelines, by contrast, do no such thing. Indeed, our post-Booker opinions have made abundantly clear that the Guidelines do not create a “high hurdle”— or any hurdle at all—“that must be cleared before discretion can be exercised.” Miller, 482 U. S., at 435. Rather, the Guidelines are “flexible ‘guideposts’ ” which inform the district courts’ discretion. Ibid. Accordingly, their retroactive application cannot constitute a violation of the Ex Post Facto Clause.B
Notwithstanding the discretion district courts have to impose appropriate sentences anywhere within the statutory range, Guidelines do “influenc[e] the sentences imposed by judges.” Ante, at 12. But, the Guidelines do this by helping district courts impose sentences that are consistent with §3553(a). It is difficult to see how an advi-sory Guideline, designed to lead courts to impose sentences more in line with fixed statutory objectives, could ever constitute an ex post facto violation. But that is exactly what the Court concludes.
District courts are charged with imposing sentences that are “ ‘sufficient, but not greater than necessary’ to comply with the sentencing purposes set forth in” §3553(a). Pepper, 562 U. S., at ___ (slip op., at 13) (quoting §3553(a)). The district court’s task is to impose sentences that reflect the punitive goals of justice, deterrence, protection of the public, and rehabilitation. 18 U. S. C. §3553(a)(2). While easily stated, this goal is difficult to achieve. Enter the Sentencing Guidelines.
The Sentencing Reform Act of 1984 instructs the Sentencing Commission to promulgate Guidelines that reflect the “same basic §3553(a) objectives” that district courts must consider. Rita, 551 U. S., at 348; see also 28 U. S. C. §991(b)(1)(A). In crafting the Guidelines, the Commission began with “an empirical examination of 10,000 presentence reports setting forth what judges had done in the past.” Rita, supra, at 349 (citing United States Sentencing Commission, Guidelines Manual §1A1.1, comment., n. 3 (Nov. 2006) (USSG)). The Commission then “modif[ied] and adjust[ed] past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like.” Rita, supra, at 349. While an individual judge has limited experience upon which to draw, the Commission “has the capacity . . . to base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise.” Kimbrough v. United States, 552 U. S. 85, 109 (2007) (internal quotation marks omitted). And the Commission updates the Guidelines regularly as new information becomes available. It consults with “prosecutors, defenders, law enforcement groups, civil liberties associations, experts in penology, and others,” to ensure that the Guidelines continue to further §3553(a)’s goals. Rita, supra, at 350; see also Booker, 543 U. S., at 263 (noting that the Commission would “modify its Guidelines in light of what it learns, thereby encouraging what it finds to be better sentencing practices”).
In light of this extensive study, amendments to the Guidelines should produce sentencing ranges that better comport with the §3553(a) factors. If the Commission has fulfilled its mission of recommending sentences that are generally consistent with §3553(a)(2), then sentences should fall within the Guidelines range most of the time. This, in part, explains why within-Guidelines sentences are presumed, on appeal, to reflect a “discretionary decision” by the district court that “accords with the Commission’s view.” Rita, supra, at 351.
Again, this case furnishes a ready example. Prior to pe-titioner’s sentencing, Congress directed the Commission “to consider” whether fraud guidelines were “ ‘sufficient to deter and punish’ ” particular offenses, in light of increases to statutory maximum penalties for certain fraud crimes other than bank fraud. USSG App. C, Amdt. 653 (Reason for Amendment) (effective Nov. 1, 2003) (quoting White-Collar Crime Penalty Enhancement Act of 2002, §905(b)(2), 116Stat. 805). This produced amended Guidelines, which were based on the Commission’s further assessment of “economic crime issues over a number of years.” USSG App. C, Amdt. 617 (Reason for Amendment) (effective Nov. 1, 2001). With an amended Guidelines sentencing range, the District Court concluded that a within-Guidelines sentence was “the most appropriate sentence.” App. 100. Neither the statutory sentencing range nor §3553(a) changed between the time of petitioner’s offense and sentencing. Thus, it is quite incorrect to say that reliance on information reflected in the amended Guidelines violated the Ex Post Facto Clause.
This is underscored by the fact that even the Court’s holding—which requires district courts to calculate the Guidelines range in effect at the time of the offense—will not eliminate the “risk” of a higher sentence. The district judge remains free to consider the range produced by the amended Guidelines. See Demaree, 459 F. 3d, at 795 (“A judge is certainly entitled to take advice from the Sentencing Commission”). Thus, the mere fact that new Guidelines have been promulgated creates some risk of an increased sentence, even if district courts are required to calculate the Guidelines in effect at the time of the offense. Petitioner has presented no evidence indicating what portion of the risk of an increased sentence flows from the retroactive application of the amended Guidelines and what portion flows from their very existence. In the absence of such evidence, even if I agreed that advisory Guidelines could be ex post facto laws, which I do not, I would not find the “risk” of an increased sentence created by the retroactive application of the Guidelines to be “suf-ficient” for ex post facto purposes.II
Today’s opinion also demonstrates the unworkability of our ex post facto jurisprudence. Under our current precedent, whenever a change in the law creates a “risk” of an increased sentence, we must determine whether the risk is “sufficient,” see Morales, 514 U. S., at 509, or sufficiently “ ‘significant,’ ” see ante, at 19, to violate the Ex Post Facto Clause. Our analysis under that test has devolved into little more than an exercise in judicial intuition. I would return to the original meaning of the Clause as stated in Justice Chase’s classic Calder formulation, under which laws of this sort are ex post facto only when they retro-actively increase the punishment “annexed to the crime.” 3 Dall., at 390.A
This Court addressed the Ex Post Facto Clause a mere decade after the Constitution was ratified. In Calder, Justice Chase described four types of ex post facto laws. 3 Dall., at 390. As relevant, Justice Chase’s third category indicated that “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed” violates the Ex Post Facto Clause. Ibid. Justice Chase’s emphasis on increases in the punishment “annexed to the crime” was grounded in the English common law and accurately reflected the original understanding of the Ex Post Facto Clause. See Part II–B, infra. Unfortunately, the Court rapidly deviated from this formulation. In Kring v. Missouri, 107 U. S. 221 (1883) , the Court declared that “any law passed after the commission of an offence which . . . ‘in relation to that offence, or its consequences, alters the situation of a party to his disadvantage,’ is an ex post facto law.” Id., at 235 (quoting Justice Washington’s jury charge in United States v. Hall, 26 F. Cas. 84, 86 (No. 15,285) (CC Pa. 1809) (emphasis added). It took nearly a century for the Court to decide that Kring’s “departure from Calder’s explanation of the original understanding of the Ex Post Facto Clause was . . . unjustified.” Collins v. Youngblood, 497 U. S. 37, 49 (1990) (overruling Kring).
Following Collins’ disavowal of Kring, the Court held that a law is ex post facto if it “produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Morales, supra, at 509. While Morales avoided the over-breadth of Kring’s “disadvantage the de-fendant” test, it failed to reconnect our ex post facto ju-risprudence to the original understanding of the term.* The “sufficient risk” test also depends upon empirical analysis that cannot yield determinative answers and which courts are ill equipped to handle. See, e.g., Garner, 529 U. S., at 255 (“When the rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule”). More fundamentally, the “sufficient risk” test, like the “disadvantage the defendant” test, wrongly focuses on the particular sentence that the defendant might receive, rather than on the punishment “annexed to the crime.”
The practical difficulties with the test are apparent even from our application in Morales, where we considered an amendment to California’s parole procedures that allowed, under certain circumstances, the Board of Prison Terms to decrease the frequency of parole suitability hearings. Under the sufficient risk test, we were compelled to speculate about the possible effects of the new law on various individuals’ prison terms. Ultimately, we held that the amendment did not violate the Ex Post Facto Clause because the “narrow class of prisoners covered by the amendment [could not] reasonably expect that their prospects for early release on parole would be enhanced by the opportunity of annual hearings.” Morales, supra, at 512. But nothing in the text or history of the Ex Post Facto Clause suggests that it should hinge on the expectations that prisoners and defendants have about how many days they will spend in prison.B
“Although the Latin phrase ‘ex post facto’ literally encompasses any law passed ‘after the fact,’ ” Collins, 497 U. S., at 41, the Court has long recognized that the phrase “was a term of art with an established meaning” at the time of the founding. Ibid. Blackstone offers the first key to understanding this “established meaning.” He explic-itly opposed laws that rendered innocent conduct criminal after the fact. See 1 W. Blackstone, Commentaries *44 (hereinafter Blackstone). Such laws deprive citizens of notice and fair warning and are, therefore, an affront to man’s “reason and freewill.” Id., at *39; see id., at *46. Blackstone, thus, considered them illegitimate. Id., at *44; see also The Federalist No. 44, p. 301 (J. Cooke ed. 1961) (J. Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation”). For this reason, ex post facto laws have rightly been described as “formidable instruments of tyranny,” id., No. 84, at 577 (A. Hamilton), and their prohibition a “bulwark in favour of the personal security of the subject,” Calder, supra, at 390 (opinion of Chase, J.).
Although Blackstone confined his discussion of ex post facto laws to those laws retroactively declaring innocent acts to be criminal, other authorities confirm that laws retroactively increasing the punishment were also understood to be ex post facto at the time of the founding. See, e.g., 2 R. Wooddeson, A Systematical View of the Laws of England, as treated in a Course of Vinerian Lectures 638 (1792) (discussing “acts of parliament, which principally affect the punishment, making therein some innovation, or creating some forfeiture or disability, not incurred in the ordinary course of law”); 3 J. Story, Commentaries on the Constitution of the United States §679, p. 486 (Abr. 1833) (The “prohibition” against ex post facto laws “reaches every law . . . whereby the act, if a crime, is aggravated in enormity, or punishment”). Justice Chase’s formulation reflects this understanding. Calder, 3 Dall., at 390 (“Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed” is ex post facto). Under this view, courts must compare the punishment affixed to the crime at the time of the offense with the punishment affixed at the time of sentencing. If the latter is harsher than the former, the court must apply the punishment in effect at the time of the offense.
At common law, it was quite easy to identify when a law retroactively increased the punishment, because the criminal law generally “prescribed a particular sentence for each offense.” Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 1700–1900, p. 36 (A. Schioppa ed. 1987). In a world of determinate sentencing, a retro-active increase in the punishment affixed to a crime rend-ers an act “punishable in a manner in which it was not punishable when it was committed,” Fletcher v. Peck, 6 Cranch 87, 138 (1810), which is sufficient for an ex post facto violation. The key point is that “the ex post facto [C]lause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed.” Lindsey v. Washington, 301 U. S. 397, 401 (1937) .
Focusing on the punishment affixed by law, rather than on the specific sentence imposed, furthers the goals of notice and fair warning recognized by Blackstone as the rationales for the prohibition against ex post facto laws. See Ross’ Case, 19 Mass. 165, 170 (1824) (“A party ought to know, at the time of committing the offence, the whole extent of the punishment; for it may sometimes be a matter of calculation, whether he will commit the offence, considering the severity of the punishment”). Because increasing the punishment affixed to the crime deprives people of the opportunity to plan their conduct in light of the law, “[t]he enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty; and therefore they may be classed together.” Calder, supra, at 397 (opinion of Paterson, J.).
Retroactive laws that merely create a risk that a defendant will receive a higher sentence, however, do not implicate traditional ex post facto concerns. An individual contemplating the commission of a given offense knows he may be sentenced anywhere within the legally prescribed range. He may hope to receive a lenient sentence, and he may even have good reasons for expecting leniency. But he does not have any guarantees. See Garner, 529 U. S., at 258 (Scalia, J., concurring in part in judgment) (“Discretion to be compassionate or harsh is inherent in the sentencing scheme, and being denied compassion is one of the risks that the offender knowingly assumes”). The law provides the defendant with only one assurance: He will be sentenced within the range affixed to his offense by statute. Legal changes that alter the likelihood of a particular sentence within the legally prescribed range do not deprive people of notice and fair warning, or implicate the concerns about tyranny that animated the adoption of the Ex Post Facto Clause.C
The statutory range in effect at the time of petitioner’s offense remained in effect at his sentencing. The Guidelines sentencing range is not the punishment affixed to the offense. See in Part I–A, supra. Accordingly, sentencing petitioner under the amended Guidelines did not violate the Ex Post Facto Clause. Because the Court concludes otherwise, I respectfully dissent.
1 * As the author of Morales, failure to apply the original meaning was an error to which I succumbed.
ORAL ARGUMENT OF STEPHEN B. KINNAIRD ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 12-62, Peugh v. United States.
Stephen B. Kinnaird: Mr. Chief Justice, and may it please the Court:
In sentencing Petitioner Marvin Peugh, the district court applied the 2009 guidelines sentencing range of 70 to 87 months, rather than the 1998 range of 37 to 46 months applicable at the time of his offense.
Retroactive application of harsher guidelines passed after the offense violates the Ex Post Facto Clause if it -- if it creates a significant risk of increased punishment.
Now, the Government here objects that a guidelines amendment does not change the law, but that is incorrect.
The guidelines are legislative rules that define a term of a mandatory statute, mainly subsection (a)(4) of section 18 USC.
Justice Antonin Scalia: Excuse me.
A mandatory schedule?
Stephen B. Kinnaird: Excuse me?
Justice Antonin Scalia: A mandatory schedule, you say?
Stephen B. Kinnaird: No, it's a term of a -- of a mandatory statute, subsection--
Justice Antonin Scalia: Oh, okay.
Stephen B. Kinnaird: --(a)(4) of -- of 18 USC 3553.
That provision requires the district court to consider the guidelines sentencing range, and I'll quote,
"established for the applicable category of offense committed by the applicable category of offender. "
So in 1998, the guide -- that statute, the law mandated that the district court shall consider, as applied to Peugh's offense and offender category a sentencing range of 37 to 46 months.
Justice Samuel Alito: Well, let's say you prevail and the case is remanded for resentencing.
Is there anything that would prevent the district court from saying, you know, before the promulgation of the new guidelines, I thought the range in the old guidelines was about right for this offense.
But now that I've seen the new guidelines, I think that those really fit best under the factors that I have to consider under the statute in determining the correct sentence, so I'm going to reimpose exactly the same sentence.
Not because it's required by the guidelines, in fact, I'm going to go outside the guidelines.
I just think, with the enlightenment that the new guidelines have provided me, that that's the best sentence.
Would that be -- would there be an ex post facto problem there?
Stephen B. Kinnaird: No, it would not, Your Honor.
You would under the statute have to follow all the steps in the Rita/Gall framework, but the district court is always able to consider any developments that it wants.
What we're talking about is the change of law.
And that was the point I was just getting to.
Justice Antonin Scalia: It's not a change of the law if -- if the law does not require the guidelines to be imposed.
Your -- your case rests upon the proposition you stated at the outset, which is that the Ex Post Facto Law applies -- prohibition applies -- if there is a substantial possibility of -- of a higher sentence -- was that the language you used?
Stephen B. Kinnaird: Substantial -- significant risk.
Justice Antonin Scalia: Significant risk.
Suppose -- suppose the district judge for the Federal district in which somebody's crime was committed was a -- a bleeding heart judge.
He always gave the lowest sentence possible, and everybody knew that.
And he is replaced.
He retires after the arrest, after the crime, and he is replaced by Maximum John, who everybody knows gives the highest sentence every time.
Ex post -- ex post facto violation?
Stephen B. Kinnaird: No, because the Ex Post Facto Clause only applies to laws where here are delegated lawmaking.
And here's where the change in the law was, Your Honor.
As I mentioned, in 1998, the law required the district court to consider a sentencing range of 37 to 46 months.
With the guidelines amendment, the law changed.
The law now required the district court for that category of offender and offense to consider as the--
Justice Sonia Sotomayor: Is that what your definition of legal consequence is?
Stephen B. Kinnaird: --Well, legal consequence refers to punishment.
That's something -- that's something different.
So the fact--
Justice Sonia Sotomayor: So you're taking -- you're disagreeing with the proposition of our older cases that to -- for there to be an ex post facto violation, you have to have a legal consequence.
Stephen B. Kinnaird: --No, not at all, Your Honor.
The legal consequence is the -- is the ultimate sentence imposed.
And in Morales and Lynce, the Court said--
Justice Sonia Sotomayor: Well, there's a -- there's the disconnect for me.
Yes, I do accept that the district courts have to consider the guidelines, but how do you tie that to the requirement that the punishment has to be tied to the guidelines?
Stephen B. Kinnaird: --Well, the Court said in Morales and in Lynce that -- and then when it was reconciled in two different formulations of the standard -- and in Lynce, the Court said it's the same test whether you increase the penalty or whether you determine that there's a sufficient risk of increasing the penalty.
Justice Ruth Bader Ginsburg: Your real formula is significantly increased the risk of perform -- of prolonging the defendant's incarceration.
That's the standard you would like us--
Stephen B. Kinnaird: --That's the standard of Garner and Morales, yes, Your Honor.
Justice Ruth Bader Ginsburg: --And is -- is the heart of your argument that there really isn't much difference at all in what district judges are doing now that the guidelines are discretionary than what they did when they were mandatory, that is, most of them will start with and stop with the guidelines.
I think that's--
Stephen B. Kinnaird: Yes.
That -- that is certainly one element of it.
But the -- the fact -- it's not exactly the same, but the fact is that even under the advisory guidelines, the change in law creates a significant risk.
And when you're evaluating significant risk, I think you have to start from the premise that the ex post facto violation prohibits an increase in punishment of any quantum, even of 1 day.
Justice Anthony Kennedy: Your -- your -- your brief spent some time on statistics, how often this happens; but I take it you're not saying that our inquiry is a statistical one.
You're simply saying that the statistics bear out that as an objective legal matter, the framework that you are explaining to us is and must be followed?
Stephen B. Kinnaird: Yes, Your Honor.
The -- and that's -- the inquiry in Garner -- in Garner, the Court said you can demonstrate significant risk either by showing that the risk is inherent in the rule, or as applied to your sentence, and marshalling the evidence of the practical operation of the rule.
So statistical evidence is -- is evidence of the fact of significant risk by the operation of that framework.
Justice Antonin Scalia: What about the statutes allowing relatives and friends of the victim to testify?
Let's assume a crime committed before -- a horrible crime committed before that statute is enacted, does it violate the ex post facto law to give effect to that statute?
Stephen B. Kinnaird: No, Your Honor.
I think there's a series of cases saying those kind of changes in trial procedure would not be within the Ex Post Facto Clause.
Justice Antonin Scalia: Why?
Don't -- don't you think it creates a significant risk--
Stephen B. Kinnaird: Well, you have to--
Justice Antonin Scalia: --if the defendant will get a higher sentence?
Don't you think that's the whole object of the law, in fact?
Stephen B. Kinnaird: --Well, but -- you have to show -- I think you have -- this is a core sentencing law.
It changes the law of punishment, which is different from procedure.
And in Miller, the Court said that when there's a change in the -- in the actual sentencing standard, the number of years, that's substantive, not procedural.
Chief Justice John G. Roberts: What if you have a law that sentencing judges must consider these factors, and one of the factors is whether the defendant has strong family ties that will be, you know, jeopardized or whatever, if he's incarcerated.
You don't want to take him away from his family, because that will penalize other people.
And then Congress thinks that's not a good idea and they take that away.
Is that an ex post facto violation?
It increases the factors of -- or the risk that the defendant will get a higher sentence before he could take advantage of the fact that he had, you know, a particular family situation.
Later, he could not.
That's a change in what the sentencing court must consider and is to his prejudice.
Stephen B. Kinnaird: I think if it is simply a change in the mix of factors, even the mandatory factors, it wouldn't necessarily create a significant risk.
But the guidelines--
Chief Justice John G. Roberts: Well, under -- under our modification of the guidelines approach, isn't that just a list of factors that the Court should consider, or must consider?
Stephen B. Kinnaird: --Well, Your Honor, I think the guidelines are distinctive, because they are the actual benchmark, and they must -- and the starting point for any sentencing.
It is critical that what range you start your sentencing analysis, it's going to affect the analysis whether you're starting at a range of 20 to 30 months or 120--
Justice Antonin Scalia: Is that -- is that what -- who says that they're the benchmark that you start with?
Where is that writ?
Stephen B. Kinnaird: --That's in Gall.
So that's in -- a construction of what's implied in the sentencing format.
Justice Antonin Scalia: A court -- a court must begin with that.
Stephen B. Kinnaird: Yes.
Yeah, that's the -- and the court not only must begin with it, must be cognizant of it throughout the process.
Chief Justice John G. Roberts: So what if the -- what if the law said the court must begin with a comparison of what the average sentence is across the country, okay?
And the data collection over time becomes more sophisticated and they can give you a more accurate number for what the average sentence is.
And it turns out it's higher than what their informal survey was before.
Is that an ex post facto violation?
Stephen B. Kinnaird: --I don't think necessarily so, but this is a -- a requirement to actually consider a range.
Chief Justice John G. Roberts: No, no.
It'd be the same -- it'd be the same thing.
One of the things that the Sentencing Commission considers is, of course, what the average sentences were around the country.
And let's say that the law says that's something you have to consider, and the technology or the range of -- of judges that they can survey becomes more sophisticated, the number goes up.
Stephen B. Kinnaird: I think it may be if you had the exact same Rita and Gall framework--
Chief Justice John G. Roberts: Yes.
Stephen B. Kinnaird: --and that -- that framework is that that range actually is the benchmark and the -- and the starting point.
The district court must justify any deviation from that range -- and this is language from Gall -- with
"sufficiently compelling justifications to support the degree of the variance. "
Chief Justice John G. Roberts: And so the answer--
Stephen B. Kinnaird: And it is then reviewed on appeal--
Chief Justice John G. Roberts: --And so the answer to my question is?
Stephen B. Kinnaird: --It would be -- I think it would be likely if it were -- if it were within the same framework, if it's the mandatory benchmark with appellate review for substantive reasonableness, and a presumption--
Chief Justice John G. Roberts: I'm sorry.
Stephen B. Kinnaird: --and a presumption of -- of reasonableness on appeal would attach to that standard.
Chief Justice John G. Roberts: So just getting more accurate information violates the Ex Post Facto Clause in the framework that you've set forth?
Stephen B. Kinnaird: I think if it's -- if you could -- if it's an actual -- well, I don't know -- the distinction I was trying to draw is that if you actually -- if the statute has effectively delegated the specification of a specific range, as opposed to just a data factor that might change over time.
And that's the key change in law here.
As I mentioned, 1998, had to consider 36 to 47 months.
With the guidelines amendment, the law changed.
He now must consider for that offense and offender category a range of 70 to 87 months, and -- and -- as the mandatory benchmark.
That's a change in the law.
And then you go to the test of significant risk.
Justice Samuel Alito: What if the -- what if the statistics showed that nationwide only, let's say, 25 percent of defendants were being sentenced within the guideline range; would that change your argument?
Stephen B. Kinnaird: I think it makes the -- well, we have an argument that's specific to our sentencing.
But if the -- if in a particular case, a defendant were making an empirical analysis, that may diminish the chance of significant risk, but with a caveat, because it's not just sentences within the guidelines range, it's the fact that the district court, even if it sentences out of the guidelines range, the ultimate amount that it sentences to is going to be partially determined by that mandatory benchmark.
And that -- that's an important point.
And as I said, the significant risk is a risk of any increase in the quantum of punishment.
So it's really, is there a significant risk that had he been -- had the old guidelines been in place as the benchmark, that he would have gotten a -- a sentence of less than 60 -- 70 months.
Justice Samuel Alito: Well, I think there's a fair chance that as time goes by--
Stephen B. Kinnaird: --I think it's clear--
Justice Samuel Alito: --we're going to see fewer and fewer sentences within the guidelines.
As judges who began their careers during the guidelines, the mandatory guidelines era, leave the bench, new judges come in who never had to deal with the mandatory guidelines, I think we're going to see fewer and fewer guidelines sentences.
And -- and the percentages in some districts are -- are really quite striking.
I'm told that in the Southern District -- or the Eastern District of New York now, only 30 percent of the defendants receive within-guidelines sentences.
Justice Sonia Sotomayor: You're assuming that's changed over time.
Justice Samuel Alito: --Well, when I was on the court of appeals we thought it was our responsibility to ensure that the district courts were complying with the Sentencing Reform Act.
That might not have been true across the river, but--
Justice Sonia Sotomayor: It wasn't.
Justice Samuel Alito: --Let's say this case comes back in 20 years and the statistics show that only a -- a distinct minority of defendants are being sentenced within the guidelines; would the case come out differently?
Stephen B. Kinnaird: --Perhaps, but again this is an as-applied challenge, so we look to current data.
There has been a very slight gradual decline, but there's still 80 percent of the sentences are either within the guidelines or they're below the guidelines range pursuant to a guidelines sanction departure motion from the government.
So it's an -- even the Sentencing Commission attributes that relationship to the fact that it's the initial starting point in the 2012 Booker report.
So I think it has a profound effect.
Now, if the Court wanted to rule more narrowly in this case on significant risk, it could.
And it could adopt a rule that when the new and the old guidelines ranges do not overlap at all, so that any sentence that would be in the new guidelines range would have required an upward variance, and here a 50 percent upward variance, those are as rare as hen's teeth in the -- in the district courts -- that at least shows at a minimum a significant risk, absent any indication that the judge, as the question was posed, wasn't going to apply them at all.
Here, the judge specifically and expressly deferred to the 2009 guidelines.
So it's clear that the significant risk was increased by this change in the law.
Justice Antonin Scalia: Your -- your case depends, it seems to me, upon the proposition that significant risk is only applicable at the sentencing stage.
And I'm not sure that that's true.
I mean, what -- why -- why would that be so?
What if -- what if you have a new law that permits evidence to come in, in a criminal trial that previously was not allowed to come in, let's say the testimony of a wife or whatever.
I think the law is pretty well established that that change in procedure does not violate the ex post facto law.
And your response to that is: Well, that's not sentencing; it's trial.
I mean, if -- certainly making a conviction more likely is -- is even worse than making a higher sentence more likely.
Stephen B. Kinnaird: I think my response would be, Your Honor, that's not -- that particular change would not be in the third category of Calder, the increase in punishment.
That would be in the fourth category, in the changes of the evidence where you don't even look to significant risk.
But I think the -- the change in punishment, at a minimum, it's the sentencing law of this kind--
Justice Anthony Kennedy: And would it be ex post facto in -- in the hypothetical Justice Scalia gave?
Stephen B. Kinnaird: --No, I don't think so, because I think -- well, it may, depending on the circumstances, be within the fourth category, but not under the third.
I think in the third--
Justice Sonia Sotomayor: Can you tell me the narrow rule that you would propose--
Stephen B. Kinnaird: --Yes.
Justice Sonia Sotomayor: --getting back to Justice Scalia--
Stephen B. Kinnaird: The narrow rule--
Justice Sonia Sotomayor: --which is procedures change risks.
Having a victim testify at sentences -- at a sentence is likely, if you examined it statistically, to increase -- increase the sentence.
So assume that's the set of hypotheticals.
You change it, now victims can.
Why is that not or is it an ex post facto change?
Stephen B. Kinnaird: --I don't think so, because the Court has generally excluded procedural changes even if you could show--
Justice Sonia Sotomayor: So why is this not procedural?
Stephen B. Kinnaird: --Because the--
Justice Sonia Sotomayor: Give me the rule where I can draw a line between those changes that are permissible and those that are not, not the general statement you're making, because both increase the risk of a higher sentence.
Stephen B. Kinnaird: --Right.
Justice Sonia Sotomayor: So it can't be that.
Stephen B. Kinnaird: No.
What Miller -- what Miller said -- in Miller v. Florida the argument was made that a change in the sentencing range, the presumptive range, was a change in procedure, and the Court said, no, that's substantive.
This is the substantive benchmark that is applied.
It's a substance standard.
Justice Ruth Bader Ginsburg: --But that was in the -- that Florida case was the mandatory, almost mandatory guideline, and I think our starting point is -- your starting point, too -- is that when the guidelines were mandatory it was ex post facto because our decision in the Florida case said it was.
Is this sufficiently different now that the guidelines are advisory rather than mandatory?
Stephen B. Kinnaird: No, Your Honor.
I think it would still be a substantive standard regardless of whether it's binding or -- or whether it's advisory.
It's still a substantive standard.
So if it's a change in the substantive sentencing law, you go to significant risk analysis.
And there you either look to the inherent risk, and I think there is an inherent risk in this framework that there's going to be some increase of some quantum of punishment beyond what they would have done if they'd applied the older guidelines as the mandatory benchmark.
Justice Antonin Scalia: But saying that the sentencer has to consider testimony from the victim or from relatives of the deceased, that -- that change in sentencing law is okay?
Stephen B. Kinnaird: Under the fact that it's considered a procedural law, not substantive.
Justice Antonin Scalia: It pertains to sentencing.
It -- it says what the sentencing authority, the judge or the jury, must consider.
Stephen B. Kinnaird: Well--
Justice Antonin Scalia: This is evidence brought before the sentencer.
Stephen B. Kinnaird: --Well, yes.
Justice Antonin Scalia: I don't see any difference between that and saying that the -- the guidelines have to be considered by the sentencer.
Stephen B. Kinnaird: Well, I may have misheard your -- your hypothetical.
In that case, it may very well be a sentencing -- a sentencing law, it may pass that threshold, and then you go to significant risk.
I would say significant risk is more difficult to determine than in this particular case, where you have the actual starting point, an actual number, which has--
Justice Sonia Sotomayor: You're answering me differently now?
Stephen B. Kinnaird: --I'm sorry?
Justice Sonia Sotomayor: You're answering me differently?
I posed exactly the question that Justice Scalia--
Stephen B. Kinnaird: I -- I may have misheard, Your Honor.
Justice Sonia Sotomayor: --I said the sentencing -- the assumptions I made were the sentencing law changes, victims must testify, judges must consider what they say, and after 5 years it's proven that when victims speak the sentences are higher.
Is that a substantive or a procedural law?
Stephen B. Kinnaird: Well, I think Miller did draw a distinction.
There are procedures that are involved in sentencing, and I'm not sure if the Court's procedure-substance cases have drawn that distinction.
Justice Sonia Sotomayor: I'm asking you to draw it.
So tell me what's the rule?
Do you want something as broad that says even that kind of change can be an ex post facto?
And if you don't, articulate how I draw the line?
Stephen B. Kinnaird: --I think -- I think the Court could draw the line simply on substantive standards that are applied.
But if the Court were to go the other direction, significant risk--
Justice Sonia Sotomayor: What does that mean to you, the number of years in jail?
Stephen B. Kinnaird: --Yes.
Justice Sonia Sotomayor: Is that as limited as you want it to be?
Stephen B. Kinnaird: Well, it could be.
I mean, or at least -- you know, if it's a mandatory sentencing factor, something like that, as opposed to--
Justice Sonia Sotomayor: Well, we know that's Miller.
Stephen B. Kinnaird: --Right.
Justice Sonia Sotomayor: This is not Miller.
Stephen B. Kinnaird: Well, but even the -- there are sentencing factors that are mandatory other than the guidelines range.
Justice Stephen G. Breyer: I would have thought you would have gone back to Calder v. Bull.
And Calder v. Bull, which this Court refers to all the time in these kinds of cases, has four categories and the only one that fits this case is a law that changes the punishment--
Stephen B. Kinnaird: Right.
Justice Stephen G. Breyer: --and inflicts a greater punishment than the law annexed to the crime when committed.
So whatever these other hypotheticals are, they do not involve -- they are not laws that change the punishment.
But yours is a law that changes the punishment.
Stephen B. Kinnaird: It is a law that changes--
Justice Antonin Scalia: Does it “ affix a higher punishment ”, in the words of Calder v. Bull?
Stephen B. Kinnaird: --I think it--
Justice Antonin Scalia: I don't think that's a question at all.
The answer to that is quite easy.
It does not affix a higher punishment, does it?
Stephen B. Kinnaird: --But -- but the Court in Garner, in Lynce, have equated that with increased risk of significant punishment.
And that -- the importance of Garner is that it recognizes that that the Ex Post Facto Clause--
Justice Antonin Scalia: Okay.
Then rely on Garner, but not on Calder v. Bull.
Stephen B. Kinnaird: --Yes.
I think -- but Garner is applying that--
Justice Stephen G. Breyer: I wouldn't concede that.
Justice Antonin Scalia: That doesn't help--
Stephen B. Kinnaird: --Okay.
So what Garner -- what Garner does say is that you look to the significant risk.
And it's important for ex post facto -- ex post facto jurisprudence, because the exercise of discretion can't displace ex post facto protections.
You have to look at the effect on the actual punishment.
Justice Anthony Kennedy: Could you remind me -- it's in the briefs -- if a sentence is appealed, what is the review authority of the appellate court?
It must begin with the guidelines as the framework?
Stephen B. Kinnaird: The review authority is to review for both procedural and substantive reasonableness.
So procedural I think has been interpreted to look at whether there was a correct calculation, whether they -- they did not treat it as mandatory, that they considered it as the benchmark and the--
Justice Elena Kagan: But isn't the important point, Mr. Kinnaird, that there's a presumption of correctness that attaches to guidelines sentences on appeal--
Stephen B. Kinnaird: --Yes.
Justice Elena Kagan: --that does not attach to non-guidelines sentences?
Stephen B. Kinnaird: Yes.
I was getting to that, Your Honor.
Justice Elena Kagan: I mean, this is, one would think, great legal consequence.
Stephen B. Kinnaird: It is.
And the second step is substantive reasonableness review and the Court has held that an appellate presumption of reasonableness may attach.
So that attaches only to this guideline range.
And that makes the risk of reversal higher if you -- if you go outside the guidelines.
Justice Samuel Alito: Do you know what the statistics are as to the number of below-guidelines sentences each year that are reversed by the courts of appeals on the ground that they are not reasonable?
Stephen B. Kinnaird: Well, I think that they are fairly low -- I don't know the precise statistics -- I believe they're low for defendant appeals.
But partly you're worried about here is -- is the government going to appeal.
They don't appeal very often, but they have a high rate of--
Justice Samuel Alito: Yes.
I mean, I think it's in the single digits.
Stephen B. Kinnaird: --I believe the -- yes, it may be -- I don't know.
It's not a great number, but they prevail when they do.
And it -- and it does have some effect, which I think the Court--
Chief Justice John G. Roberts: Counsel, who prevails?
The government or the--
Stephen B. Kinnaird: --The government tends to prevail when it brings.
But, you know, that's a potential deterrent effect.
But even the fact of substantive reasonableness review, you have to have reasons, you have to be able to justify your deviations.
Justice Sonia Sotomayor: Have you had -- are you aware of any circuit court case in recent time where a circuit has reversed the lower range than the guideline, basically because the deviation from the guideline was unreasonable?
Stephen B. Kinnaird: I'm not sure.
I haven't reviewed all those cases, Your Honor.
I'm not sure.
So the -- returning to the question of this particular sentencing, I think if the Court were to rule on a narrower ground based on non-overlapping ranges, which is not going to be particularly common, here there's unquestionably a significant risk.
You have a defendant who prior to this course of conduct had lived an exemplary life.
His threshold -- his -- the loss in his case barely crawled into the 2.5 million to 5 million.
It was about 40,000 over 2.5 million.
And the district court sentenced at the bottom of the guidelines range, agreeing with the policy of increasing sentences with the amount of loss.
That same policy was present, but not the same level of increase, in the 1998 guidelines.
So I think there's clearly, as applied to his sentence, the significant risk he would not have gotten 70 months, which would have been an upward variance of 50 -- of 50 percent from the old guidelines range.
But I think if the Court does wish to consider the broader ruling, I think it's also true that it is inherent in this system, in the Rita and Gall framework, which provide for a mandatory benchmark, which provide for the substantive reasonableness review, that you're going to have some significant risk of some increased quantum of punishment as a result of this change in law.
I'd like to reserve the rest of my time for rebuttal.
Chief Justice John G. Roberts: --Thank you, counsel.
ORAL ARGUMENT OF ERIC J. FEIGIN ON BEHALF OF THE RESPONDENT
Eric J. Feigin: Thank you, Mr. Chief Justice, and may it please the Court:
This Court made clear in Miller v. Florida that an Ex Post Facto Law has to change, quote,
"the legal consequences of a prior act. "
A guidelines amendment doesn't do that.
A district court has the same authority and the same--
Justice Sonia Sotomayor: Why are you fighting this proposition?
Because the starting point doesn't matter.
Why didn't you stick to your old position that judges should start from the old one and simply consider the new one?
Why this whole Supreme Court case?
Eric J. Feigin: --Well, Your Honor, we -- we opposed certiorari largely on that ground.
We don't think the guidelines impose a constraint on a district court's exercise of sentencing discretion.
That is, if a judge decides that a guidelines range that the commission has suggested at some other time suggests a more appropriate sentence or if the judge believes that some sentence that's unrelated to any guidelines range is the most appropriate sentence, the judge has discretion to impose that sentence.
Justice Sonia Sotomayor: Practically speaking, do you believe it makes no difference?
Eric J. Feigin: Your Honor, I freely believe that the guidelines are very influential to many district judges and district judges often agree with the guidelines.
They often impose sentences within the guidelines range or close to the guidelines range.
Justice Ruth Bader Ginsburg: This is a change -- your position is -- is a change, at least in the position that the Government took in -- in the Seventh Circuit case that started all this.
The Government confessed error.
The Government said the district judge should have used the guidelines that were in effect at the time the offense was committed, and the Government came to the Seventh Circuit and confessed error.
So there was not even an argument until the Seventh Circuit and Judge Posner wrote the opinion that included all the hypotheticals that -- that were aired earlier about the victim impact statement and all of those are in that opinion.
So it was only after -- after the Seventh Circuit opinion that the Government changed its position.
Eric J. Feigin: Your Honor, the Government changed its position in response to this Court's decisions in Gall, Kimbrough and Irizarry, because before those decisions came out, there was an argument that the guidelines still imposed some substantive legal constraint on a district court's sentencing discretion.
After Gall, Kimbrough and Irizarry, after Nelson and Spears, that argument no longer exists.
Rita makes clear that district courts cannot presume a guidelines range to be reasonable.
Irizarry makes clear that a defendant is constitutionally on notice that he can get sentenced anywhere within the statutory range, and Gall makes clear that courts of appeals should apply the same deferential standard of review to every sentence regardless whether it falls within the guidelines range, just outside the guidelines range, or far outside the guidelines range.
Justice Ruth Bader Ginsburg: The guidelines range gets a presumption of reasonableness at the appellate level.
Eric J. Feigin: That's right, Your Honor, and I think Rita actually supports our position, not Petitioner's.
The Court made clear in Rita that the presumption of reasonableness on appeal that this -- that courts of appeals can choose to apply, but need not, has no legal effect.
Rather, it reflects the commonsense proposition that when the commission recommends a particular sentencing range as to a particular class of defendants and the district court, in its discretion, actually imposes the sentence within that range, that the sentence is likely to be reasonable.
The entire premise behind the presumption of reasonableness that was adopted in Rita is that district courts are in fact exercising their discretion when they impose sentences, and that's the same premise on which we'd ask you to decide this case.
Justice Sonia Sotomayor: What is the reason that miscalculating a guideline is considered a procedural error?
Eric J. Feigin: Well, Your Honor, it's very clear from 3553(a)(4) that Congress wants district courts to start with the right mix of information, which includes the most up-to-date recommendation of the Sentencing Commission.
Justice Sonia Sotomayor: That begs the question.
Obviously, if we hold it's a procedural error to miscalculate the guidelines, using the guidelines has some significant importance in the process.
Eric J. Feigin: It has importance, Your Honor, and as I've said before, they can be very influential to judges, but the reason why it's an error to miscalculate the guidelines is not because the guidelines impose any substantive constraint on the district court's discretion.
After reversal for miscalculating the guidelines, the judge is free to impose the same sentence anyway, and there's no constraint on the judge's discretion that arises from the guidelines frame.
Justice Elena Kagan: But what that suggests is that the guidelines serve as an anchor and are supposed to serve as an anchor, and that the reason why the miscalculation is error is because you've picked the wrong anchor and that's going to affect or -- or has a significant likelihood of affecting your ultimate decision.
And isn't that really what we've suggested is the way the guidelines ought to work, and the way you think the guidelines ought to work, that it serves as an anchor for sentencing decisions.
Yes, you can vary, you can deviate, but it's your anchor.
Stephen B. Kinnaird: Your Honor, there are two things you could mean when you use the word “ anchor ”.
One, you could mean that there's some sort of legal anchor, and we think that the Court's decisions that I've just described, in particular, the Court's repeated insistence that district courts cannot presume a guidelines range to be reasonable, means the district courts cannot treat them as a legal anchor.
Second, you might be suggesting that they serve as some sort of psychological anchor.
That's not a concern of the Ex Post Facto Clause.
The Ex Post Facto Clause doesn't guarantee defendants a right to a judge who has a particular sentencing philosophy.
Justice Elena Kagan: I think I'm saying more than it's all in your head.
I think I'm saying you start in a particular place, you have to get the particular place right.
The appellate court looks at the particular place that you've started and if you -- if you've ended up there, has to grant a presumption of reasonableness.
But the rules are all geared towards saying, yes, you can deviate, but you have to understand that there's -- that -- deviation requires some kind of thought process and some kind of reason.
Otherwise, this is where you should be.
Eric J. Feigin: Well, Your Honor, the Court made clear in Pepper two terms ago that the district court's overarching legal duty is to impose a sentence sufficient but not greater than necessary to meet the statutory purposes of sentencing in section 3553(a)(2).
The guidelines are one of several factors that inform the district court's exercise of discretion.
If a district court treats the guidelines as some sort of legal constraint this Court's decisions say it can't be treated as, that would be statutory error.
Justice Stephen G. Breyer: No, it isn't, but that I think is an undecided question at best.
If you won the case on that ground, I would say that what the guidelines and the Sentencing Commission are best at, gathering information from across the country and saying a typical person who commits this crime in a typical way should be sentenced to the typical range that applies, let's say 18 to 24 months.
That would be down the drain.
And I think that Rita, in fact, and the other cases have at the very most left open and maybe decided against you the question of when a court of appeals gets the sentence from a judge who does not apply the guideline because he doesn't like the policy judgment.
That's a different matter from when he applies it and when he thinks he shouldn't apply it because the person in front of him doesn't meet the policy conditions.
Those are different.
The commission has the expertise in the first, the judge in the second.
And so there is at least a question as to whether the court of appeals should give more leeway to the guidelines in the first and more leeway to the judge in the second.
Now, I think Rita is consistent with that, and I think every opinion we have written is consistent with that.
And I'd hate to see that suddenly decided and changed in a way I think is inappropriate in this case.
So have you all thought that through?
And is the position of the Government now that we think the guidelines, even if it's a policy matter that they have gathered evidence on, are entitled to nothing if they run across a district judge who happens to think, though he was an outlier, that the outliers were right as a matter of policy, which of course will always be true.
Every judge who is an outlier thinks the outliers are right.
Otherwise why would he do it?
Now, I didn't know that issue was in this case and that changes the case dramatically for me.
And I thought we could decide this just on the ground that this is a law that changes punishment.
It's a law.
It's a regulation.
And Justice Scalia I thought was completely right.
The question is whether it inflicts greater punishment.
And there is a test on that and the controlling inquiry is whether retroactive application of a change in a law that affects punishment created a sufficient risk of increasing the measure of punishment attached.
And that's -- that's what I thought the framework of law was in this case.
Now, this is sort of tough for you on oral argument because I'm just, perhaps, bringing it all up to get it all out there and see what you think.
Eric J. Feigin: Let me start at the end there, Justice Breyer.
Justice Antonin Scalia: I disagree with all that, by the way.
Eric J. Feigin: Well, Your Honor, Justice Breyer, beginning with what you said at the end there, I think it would be inappropriate to untether the significant risk test from the requirement that there be an ex post facto law.
That is, there has to be a significant legal risk, a risk that is traceable to some sort of change in the decisionmaker's authority with respect to sentencing, and we don't have that here.
A district court has the same authority and the same obligation to impose an appropriate sentence the day after the guidelines are amended as the judge had the day before the guidelines are amended.
And any judge who forgets that is going to be committing statutory error, and the sentence could be reversed on appeal for violating the Booker remedy.
Justice Anthony Kennedy: But when it comes to the court of appeals, it's different.
The court of appeals begins with a framework of whether or not it's within the guidelines.
That's how it begins to measure the exercise of discretion.
Eric J. Feigin: --Well, Your Honor, as I've explained, the reason why courts -- the only way in which courts of appeals can apply a different standard of review to a sentence, depending on where it falls in the guidelines range, is the presumption of reasonableness the Court recognized in Rita.
And I think Rita makes quite clear that that is a practical presumption.
That is, it simply acknowledges the commonsense proposition that when a district court exercising its discretion reaches a judgment that accords with the commission's expertise, it's likely that sentence is reasonable.
I don't think--
Justice Sonia Sotomayor: I know there is a lot of dispute now about the child pornography sentences.
Let's assume -- and this goes back to Justice Breyer's question -- a judge comes in and says: I know child pornography is criminal, but I don't think what the guidelines are imposing are fair to any defendant.
So, 10 days in jail.
Why would that be substantively unreasonable?
Eric J. Feigin: --Your Honor, it would depend on the individual circumstances of the particular case.
Justice Sonia Sotomayor: No, I'm giving you exactly what the judge says.
You don't think that the appellate court would say that's substantively unreasonable because it's not giving due deference to the commission's assessment of the seriousness of this crime?
Eric J. Feigin: I think the court of appeals might say that it's substantively unreasonable because it's a very, very low sentence even in comparison to the statute.
Justice Antonin Scalia: I assume that the statute is one that permits 10 days, right?
Sort of an unusual statute, but if the hypothetical is in the real world, the statute provides, you know, 10 days to life, okay?
And the judge thinks 10 days is okay.
I think that's the hypothetical.
Eric J. Feigin: And, Your Honor, in that case, it is possible a court of appeals would decide that that is substantively unreasonable.
It's possible a court of appeals might reference the guidelines.
But the reason why the court of appeals would find it substantively unreasonable is because as a whole it is substantively unreasonable and not because it varies too far from the guidelines.
I also want to emphasize--
Justice Ruth Bader Ginsburg: Do you disagree with -- getting back to what this case is about, the D.C. Circuit, in opposition to the Seventh Circuit said:
"It is enough that using the new guideline created a substantial risk that the defendant's sentence was more severe that it would have been if the guidelines in effect at the time of the crime were used. "
And it said,
"There is no doubt that this case fits that description. "
"There was quite a substantial risk that the elevated guidelines would result in a more severe sentence. "
Eric J. Feigin: --Well, Your Honor, there are two complaints that Petitioner could be making about his particular sentencing.
One could be that he thinks the judge treated the guidelines too deferentially as a legal matter.
And if that's what he believes, his remedy is a claim of statutory error under Booker.
He's never made that claim.
The other claim--
Justice Ruth Bader Ginsburg: He's saying that -- the question is which guidelines in this case?
And he's saying it's the guidelines in effect at the time he committed the crime.
We are not dealing with other -- I mean, it's quite a simple choice.
Is it -- does the court start with the guidelines in effect at the time the crime was committed or does it start with the guidelines in effect at the time of sentencing?
Eric J. Feigin: --And whichever set of guidelines the district court started with, it had discretion and in fact the obligation to impose the appropriate sentence under 3553(a).
Justice Ruth Bader Ginsburg: Now, we know that this district judge, he didn't want to get into any philosophical things about what was better or what was worse.
He said, I want to follow the guidelines.
So the question for him was only which guideline.
He got his answer from the Seventh Circuit.
They said the guidelines at the time of sentencing.
A judge in the D.C. District Court will get the other answer, the guidelines in effect at the time the crime was committed.
Eric J. Feigin: Your Honor, Petitioner argued in this case that the former guidelines range suggested a more appropriate sentence than the 2009 guidelines range.
The district court considered that argument and it rejected it.
And defendants are always free to raise that argument.
If I could go back to Justice Sotomayor's child pornography hypothetical--
Justice Ruth Bader Ginsburg: It's not -- it's not a question of whether the judge thought that the one guideline was better than the other.
He specifically said he wasn't interested in that question.
The question was which guideline does he follow.
What does he start with?
And you recognize that you do start with the guidelines.
Justice Anthony Kennedy: Yes, I agree with Justice Ginsburg's follow-up question.
It seems to me you avoid the question.
You said, oh, well, the judge looked at all this and selected the sentence he did.
But he did so because he referred to the later guidelines and I think you have to recognize that.
Justice Antonin Scalia: I think you are saying that it doesn't matter because they are advisory--
Justice Anthony Kennedy: Well, I'd like to finish.
Unless I am wrong under the record.
Eric J. Feigin: --Well, Your Honor, on the record, I think if you look at the full sentencing transcript, which is in the Joint Appendix, you will see that one of the questions the judge had to answer was which set of guidelines were provided -- were the set of guidelines that he had to calculate under 3553(A)(4)(a)(2).
And then there was a separate section in which he considered the argument that the 2009 guidelines were too harsh.
If you look at the sentencing memorandum that Petitioner filed in this case, it argued that the increase in loss amounts in the fraud guidelines was too harsh, that judges often impose sentences that are the guidelines, and the district court should do so here.
The district court considered that argument and rejected that.
Justice Ruth Bader Ginsburg: But the district court was following orders.
He was following the Seventh Circuit.
The Seventh Circuit had said: You start with the higher guidelines.
Eric J. Feigin: Justice Ginsburg, it's -- as the Court considers these as two separate questions, one is which is the set of guidelines I'm required to calculate under Section 3553(a), and second, having calculated those guidelines, what sentence should I impose, with the guidelines as one of the factors that the Court consider.
Justice Elena Kagan: Mr. Feigin, you're sounding awfully like according deference to the guidelines counts as reversible error.
Eric J. Feigin: No, Your Honor, that's not what I'm trying to say.
I'm saying treating the guidelines as some sort of legal constraint on the district court's sentencing discretion is reversible error.
Now, if the district court chooses in its own discretion to give weight to the guidelines, that's within the realm of choice that 3553(a) provides.
There are many circumstances--
Justice Antonin Scalia: --It is reversible error, is it not, simply to blindly apply the guidelines without considering the factors in 3553?
That's reversible, isn't it?
Eric J. Feigin: --That's correct, Your Honor.
And, Justice Kagan--
Justice Elena Kagan: But surely, you do not want judges living in a world where they think that they cannot give deference to the guidelines; isn't that right?
You want them to give appropriate deference to the guidelines; isn't that correct?
Eric J. Feigin: --Your Honor, we want them to find the guidelines persuasive and influential.
We recognize that under this Court's decisions, they cannot treat the guidelines as a legal constraint on their sentencing discretion.
If a judge follows the guidelines, that's because the judge is exercising its discretion to decide that a guidelines range sentence is appropriate in that particular case.
Now, there are many instances in which judges choose not to do that.
So, for example, Justice Sotomayor brought up child pornography.
In fiscal year 2012, a defendant for a non-production child pornography offense, that is, receipt or possession of child pornography, was substantially more likely to get a nongovernment-sponsored below-range sentence than to get a within-range sentence; 48.4 percent nongovernment-sponsored below-range, 32.7 percent within range.
If we want to talk about fraud for a minute, which is what the Petitioner in this case was charged with, if you look at page 67 of the commission's post-Booker report, and I'd encourage the Court to read that report in full, because it makes very clear the variations in sentencing practices among -- depending on the crime, depending on the particular circuit, depending on the particular district, and even depending on the particular judge.
Justice Ruth Bader Ginsburg: Was Judge Randolph wrong when he said, quoting the sentencing commission, that within-guidelines range, even after Booker, is the standard?
Indeed, the actual impact of Booker on sentencing has been minor, and for that minor, he cites the sentencing commission.
Eric J. Feigin: So, Your Honor, I think the post-Booker report refutes that in the respect I just suggested.
It says that there are actually very different sentencing practices, depending on the particular crime, depending on the particular judge.
Justice Ruth Bader Ginsburg: But this statement comes from Final Report on the Impact of the United States v. Booker on Federal Sentencing.
Eric J. Feigin: Your Honor, the commission says many things in its report.
One of the things it says is that in the aggregate, guidelines do -- actual sentences do tend to track the guidelines.
But if you look beyond that one aggregate statistic and you start to look at the variations in sentencing practices in courts across the nation that vary not only by judge but by guideline, you see that the system is actually operating the way you'd expect to--
Justice Stephen G. Breyer: I see -- I see now where you're going.
What I think you're saying is whatever the sentence is -- I am the judge, I read the guidelines.
Now, I may think that I am more likely to get reversed if I substitute a different view than the commission had on a matter of policy.
That's all true.
But still, I don't have to do it.
No matter what it is, I can not use the guidelines.
And if I get reversed on other grounds or the sentence is not reasonable, da, da, da, da, da.
But there's no legal binding nature there.
That's your point, I think.
Eric J. Feigin: --That's exactly my point, Your Honor.
Justice Stephen G. Breyer: All right.
If that's exactly your point--
Eric J. Feigin: I'd like to add two -- two observations to that, first of which is, as an empirical matter, it is extremely unlikely for a sentence to get reversed on substantive reasonableness grounds.
The commission's post-Booker report -- and I'm talking about the one that they just issued a few weeks ago that's cited in the reply brief -- states that substantive unreasonableness reversals are very rare.
Petitioner, on page 30 of his brief, cites a database that contains 38 such reversals post Gall.
Justice Stephen G. Breyer: --But now I can narrow what the question I think is.
Eric J. Feigin: And the second point I'd like to make, Your Honor, with respect to that is that I don't think this Court should assume that district courts are actually going to change what sentences they impose and not impose the sentence they believe is sufficient, but no greater than necessary to meet the purposes of sentencing just because they--
Justice Anthony Kennedy: Well, but that -- that gets back to -- to your argument.
You're -- I sense that you want me to leave the bench saying the guidelines just don't make any difference.
Suppose -- suppose the district judge said, you know, if it were just up to me, I would give this lower sentence, but the guidelines are an important institutional part of our system.
Uniformity in sentencing is -- is desirable.
For us to take into account the experience of other -- of other courts and what the sentencing commission does is very important.
Therefore, my discretion is guided by these guidelines.
Eric J. Feigin: --Your Honor, I absolutely--
Justice Anthony Kennedy: You don't want me -- you don't want me to say that.
Eric J. Feigin: --I absolutely do not want you to leave the bench with the impression that the guidelines are unimportant.
I want you to leave the bench with the impression that the guidelines don't impose any legal constraint on a judge's exercise of discretion.
Different judges -- not only does it vary by guideline, but--
Justice Elena Kagan: Mr. Feigin, take this example.
Let's suppose that there's a crime and the punishment for crime is 5 years to life, all right?
Now, Congress passes a statute and it says, no, we think this crime now is much more important than we used to, now it's 25 years to life, right?
A -- a person commits the offense prior to that change.
Absolutely obvious case, right, that you have to apply the -- the 5 years to life, right?
Eric J. Feigin: --Yes.
Justice Elena Kagan: Okay.
Now, the Sentencing Commission does what the Sentencing Commission always does when there is a legislative change like this.
It says, well, we have this guidelines that assumes 5 years to life.
We have to change our guidelines because now it's 25 years to life.
And it passes a guideline amendment which completely conforms to the legislative amendment.
But you're saying, no, the 25-year-to-life guideline is the appropriate one to implement, even though the 5-year statute is the appropriate one to implement -- is the appropriate one to give effect to.
Can that possibly be right?
Eric J. Feigin: Your Honor, I think I'm saying something slightly different.
I think under 3553(a), the Court would calculate the current guidelines.
Now, the defendant would have a very good argument in that case that the current guidelines range would simply not be appropriate for him, and I think a district court would do well to listen to that argument in that particular case if it thought that the sentences that the new guidelines range was suggesting were out of whack with the statute at the time the offense was committed.
Justice Antonin Scalia: Mr. Feigin, I'm under the impression -- more than the impression I know -- that the Sentencing Commission can make a revision of the guidelines retroactive.
Can it only do that for revisions that lower the -- the suggested penalty or can it do that for revisions that increase it as well?
Eric J. Feigin: I believe it's only for revisions that lower--
Justice Antonin Scalia: Only for lower, okay.
Because if it could increase it, then it would be violating, according to your friend, the Ex Post Facto Clause.
Eric J. Feigin: --And, Your Honor, getting back to how the advisory guidelines are working in practice for a minute, which again is I don't think what this -- what the focus should be.
The focus should be on whether there's actually been a change in the law that either increases or decreases a sentencer's discretion.
If you imagine two States, for example, each of which had exactly the same advisory guidelines system that the Federal Government has, and in one of them judges are, you know, tend to find the guidelines very persuasive, they sentence within the guidelines 70 percent of the time.
In the other one, judges exercising their discretion don't find the guidelines very persuasive and they sentence within the guidelines 10 percent of the time.
I don't think it makes sense that under the exact same legal regime an amendment to the guidelines in one State would be an Ex Post Facto Law and an amendment to the guidelines in the other State wouldn't be an Ex Post Facto Law.
Justice Anthony Kennedy: But your statement to me was -- and to us earlier -- was that there is no legal constraint on the exercise of discretion.
I agree, the judge -- everybody knows the judge can go lower.
But that overlooks the fact that discretion is defined by legal standards.
That's how we begin to think about discretion.
That's how appellate courts weigh discretion.
And, again, you want to give the guidelines no effect in determining how that discretion is shaped, guided and exercised.
Eric J. Feigin: Your Honor, they are a factor.
They're a factor under 3553(a).
They're a factor that the district court has to consider.
But they don't themselves in any way, shape, or form constrain the district court's exercise of discretion.
A district court can decide that -- not to impose a guidelines sentence.
Justice Anthony Kennedy: Would you accept the fact that they define the discretion even though they don't constrain it?
Eric J. Feigin: Your Honor, I wouldn't say they define the discretion either.
I think they are a recommendation and information that informs the exercise of discretion--
Chief Justice John G. Roberts: What if -- I'm sorry.
Are you finished?
Eric J. Feigin: --I'm happy to be, Your Honor.
Chief Justice John G. Roberts: A good advocate.
Let's say you had a statute -- not a guideline, a statute -- that said a sentence for a particular offense will be 5 years, but the judge can lower it to 4 years if he thinks it would be a manifest injustice to sentence to 5 years.
That provision is later repealed.
Now it just says that the sentence should be 5 years.
Does that violate the Ex Post Facto Clause?
Eric J. Feigin: I think it might well violate the Ex Post Facto Clause, Your Honor, because in that case you have something we don't have here, which is that the decisionmaker has less discretion than--
Chief Justice John G. Roberts: No matter how narrow -- no matter how narrow the original grant of discretion is?
In other words, only in the case of manifest injustice, or however dramatic you want to limit the available discretion.
Eric J. Feigin: --The reason -- the reason I said “ might well ” is I think at that point the Court would have to look at the significance of the increase or decrease in the sentencer's authority, and decide whether that was a significant enough increase or decrease to trigger the--
Chief Justice John G. Roberts: How would -- how would a Court--
Eric J. Feigin: --the Ex Post Facto Clause.
Chief Justice John G. Roberts: --Right.
How would a Court go about answering that question?
Eric J. Feigin: I think that's where the significant risk test comes in.
And under the significant risk test, you can either see whether it facially has that effect -- we know that's not true of the Federal Sentencing Guidelines because the Court's made clear they don't impose any legal constraints, or you could see whether it has that effect as applied under Garner.
We know that--
Chief Justice John G. Roberts: So it's a statistical evaluation of the kind we were talking about.
You look and you say, well, it's only once in a blue moon that the judge invokes the manifest injustice provision, so it's not increasing the risk.
On the other hand, well, every four out of five judges do and therefore it is an increase.
Is that how you--
Eric J. Feigin: --I think it's fundamental -- the decision in Garner doesn't precisely describe exactly how the significant risk inquiry works.
I think it is fundamentally a legal inquiry, because the bottom-line question the Court's always trying to answer is whether there has been an ex post facto law.
And I think, to the extent it's okay to look at empirical data -- and I don't think the Court in Garner expressly says that that's the kind of data it was contemplating -- it would be to inform how the legal framework actually operates in practice.
And if the Court found it necessary to look at that here, in -- the post-Booker report makes clear that sentencing practices vary over the districts, over the circuits, and with respect to particular guidelines.
So Justice Alito brought up the example of the Eastern District of New York.
We don't have to look any further than the Northern District of Illinois, where Petitioner was sentenced here, where the latest 2012 statistics that came out on Friday show that a defendant actually has a slightly higher probability, very slightly higher probability, of getting a non-government-sponsored below-range sentence than of getting a sentence within the guidelines range.
I think all these variances show two things.
One, they show that the system is working exactly as you'd expect an advisory system to work.
And two, I think they show that some sort of narrow focus on empirical data, which is what you are left with once you divorce the ex post facto inquiry from a change in law, is inherently unworkable.
You have to--
Justice Elena Kagan: I think more goes into it than empirics.
But there's this unbelievable chart really in one of the green briefs about -- you know, where there's one line which is what happens to the guidelines and there's this other line which is what happens to the sentence, and they follow each other identically, exactly.
You can't get a chart that looks better from this than -- from Mr. Kinnaird's point of view.
Eric J. Feigin: --So let me say two things in response to that, Your Honor.
If you look in the post-Booker report, they have charts like that that are broken down by offense--
Chief Justice John G. Roberts: --You can finish your sentence.
Eric J. Feigin: --If you look at fraud and you look at child pornography, they deviate when they go in -- when the guidelines' suggestion goes up, the sentences don't go up in accordance with that at the same level of the chart you are looking at.
Thank you, Mr. Chief Justice.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Kinnaird, you have 3 minutes left.
REBUTTAL ARGUMENT OF STEPHEN B. KINNAIRD ON BEHALF OF THE PETITIONER
Stephen B. Kinnaird: Thank you, Mr. Chief Justice.
Five quick points.
First, the Government says this must be an overt legal restraint to be within the Ex Post Facto Clause.
This Court has repeatedly, in Weaver and other cases, said it's the effect of the change of law, not its form, that matters for ex post facto purposes, the effect on punishment.
And what this revision and amendment of the mandatory benchmark did was to alter the legal framework in a way that channelled and redefined the exercise of discretion in the direction of greater punishment.
Secondly, what range is the -- is the mandatory benchmark under the statute matters greatly, as Justice Kennedy alluded to, to appellate review for substantive reasonableness.
You have -- it's the key factor in determining whether a sentence is reasonable, and it's the standard to which a presumption of reasonableness may attach.
Third, as far as the record, there's -- there's no analysis in the record of the 1998 guidelines other than to -- to set them aside.
And -- and what you have to have under the Constitution is, he has to actually apply those as the statute required at the time of the offense, as the mandatory benchmark.
Instead, he's quite clear, he's applying the '98 guidelines.
He's deferring to the -- to the policy judgments there, and to the loss calculations.
So it had a clear substantive effect on his risk of greater punishment.
The post-Booker report does have those line -- those charts that show that for all offenses and for fraud offenses, when the guidelines' minimum goes up, the average sentences go up, and that's a very compelling point of evidence.
And finally, I would point out here that one of the amendments here was actually a response of the commission to a congressional directive in the wake of the Enron scandal and the Sarbanes-Oxley Act, where there was great public and legislative outrage over light fraud sentences, to reconsider the fraud guidelines.
And that puts this in the core of the Ex Post Facto Clause, that it violates fundamental notions of retroactivity for a legislature to be able to alter the law of punishment after the offense.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Chief Justice John G. Roberts: Justice Sotomayor has our opinion this morning in case 12-62, Peugh versus United States.
Justice Sonia Sotomayor: In an effort of to reduce unwarranted disparities in federal sentencing, Congress passed the Sentencing Reform Act.
The Act created the United States Sentencing Commission which is tasked with promulgating sentencing guidelines.
Those guidelines prescribe a sentencing range for a criminal defendant based on his personal characteristics such as his criminal history and the characteristics of his offense.
As enacted, the guidelines were meant to be mandatory, meaning that they were legally binding on the sentencing court.
In United States versus Booker, this Court found that the mandatory guidelines were unconstitutional.
To cure the constitutional problem, the Court struck down the provisions of the act that made the guidelines mandatory and left an advisory system in its place.
After Booker, the guidelines still operate to channel sentencing discretion and avoid excessive disparities, but District Courts may now sentence outside the guidelines subject to deferential appellate review.
The Sentencing Commission periodically reviews and amends the Guidelines.
District Courts are directed to apply the most up-to-date version of the guidelines in effect at the time of sentencing with one caveat.
They are not to do so if applying the new guidelines would violate the Constitution's ex post facto clause by retroactively increasing the punishment for the defendant's crime.
We have interpreted this clause to bar laws that create a significant risk of increasing a defendant's punishment.
The question presented here is whether now that the guidelines are advisory; it violates the ex post facto clause to apply a new, more punitive guideline retroactively.
Petitioner Marvin Peugh was convicted of multiple counts of bank fraud.
Under the version of the guidelines in effect at the time of his crime, Peugh would have been subject to an advisory guideline range of 30 to 37 months of imprisonment.
But in between the time of the crime and Peugh's sentencing, the Sentencing Commission amended the guidelines in several ways, increasing Peugh's guideline range to 70 to 87 months of imprisonment.
The District Court rejected Peugh's argument that applying the new guideline range violated the ex post facto clause.
The court decided that a within-guideline sentence was appropriate and sentenced Peugh to 70 months of imprisonment.
The Court of Appeals for the Seventh Circuit affirmed, applying circuit precedent holding that retroactive increases in the advisory sentencing guidelines do not implicate an ex post facto concern.
We granted certiorari and now reversed.
While the guidelines are no longer mandatory, they still occupy a central role in sentencing.
Indeed, they are designed to anchor sentencing discretion in order to promote uniformity.
Under our post-Booker precedents, District Courts are required to begin sentencing by calculating correctly the guidelines range.
Failure to do so is reversible procedural error.
District Courts may depart from the range, but they must consider the extent of any deviation and provide us sufficient justification to support the variance.
Court of Appeals, in turn, may presume a within-guidelines range as reasonable and may further consider the extent of any deviation from the guidelines in reviewing a sentence for reasonableness.
The cumulative effect of these legal rules is to make the guidelines the loadstar of sentencing in the federal system, even in a post-Booker world.
Both common sense and empirical evidence indicate that these rules will steer District Courts to give more within-guideline sentences.
As a result, increasing the applicable sentencing range carries a significant risk of an increased punishment.
For these reasons which we elaborate in greater detail in the opinion filed today, we hold that retroactively applying an increase in the applicable guideline range violates the ex post facto clause.
The judgment of the Seventh Circuit is reversed.
Justice Thomas has filed a dissenting opinion which the Chief Justice, Justice Scalia and Justice Alito joined in part.
Justice Alito has also filed a dissenting opinion which Justice Scalia joins.