NOTICE: This opinion is subject to
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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–62
_________________
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.[
1]*
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
Holle- well, 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 ar- tificially inflated the
balances of accounts under their con- trol 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 Cate-
gory 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 vio-
lated 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, 362, 366–367 (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 par- ties 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 dis- agreement with the [Sentencing] Commission’s
views,”
Pep-
per v.
United States, 562
U. S. ___, ___ (2011) (slip op., at 23) (citing
Kimbrough v.
United States,
552 U.S.
85, 109–110 (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 in- dicated 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 pre-
sented 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, 521–525 (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). More- over, 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).[
4]
B
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 sentenc- ing 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 sen- tences 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 con- sider 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 en- sures 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 reason-
ableness review,
Gall, 552 U. S., at 51. As in
Miller, then, the post-
Booker sentencing regime puts
in place proce- dural “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 above-
or 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, 28–29 (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, 713–714 (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.[
7]
IV
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 sta- tus 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
necessar- ily 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 Sentenc- ing 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 suffi- ciently
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.