Peugh v. United States,
569 U.S. ___ (2013)

Annotate this Case
  • Syllabus  | 
  • Opinion (Sonia Sotomayor)  | 
  • Dissent (Clarence Thomas)  | 
  • Dissent (Samuel A. Alito, Jr.)



No. 12–62



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.


     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.


     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 dis- trict 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.


     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.


     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.


     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., Gar- ner, 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.


     “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 crimi- nal 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.


     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.
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