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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.