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Argument preview: Are federal Sentencing Guideline amendments “law” or merely “advice” when applying the Ex Post Facto Clause?

The Constitution does not define “ex post facto.”  But Article I, Section 9 directs that “[n]o … ex post facto law shall be passed” by Congress.  As constitutional landmark cases go, Peugh v. United States, set for argument tomorrow has flown well under the radar.  But at issue is no less than the appropriate constitutional test for identifying an “ex post facto” law.  When the U.S. Sentencing Commission changes its (now advisory) Guidelines to treat certain sentencing factors more harshly, does it violate the Ex Post Facto Clause to apply such changed Guidelines to criminal conduct that was completed before the change?

Factual background

The wheels of justice sometimes turn slowly.  Not until 2009 was Marvin Peugh convicted on five counts of federal bank fraud, for conduct occurring in 1999-2000 that caused losses just over $2.5 million.  The federal Sentencing Guidelines in effect at the time of his offenses would have yielded a suggested range of 30-37 (or 37-46, says the government) months’ imprisonment.  But between 2001 and Peugh’s 2010 sentencing, the Sentencing Commission adopted a number of amendments designed to make the base offense levels for financial fraud, and the upward adjustments for “loss,” more severe.  Thus, by the time of his sentencing, Peugh’s guideline range was set at 70-87 months, nearly double the 2000 range.  Peugh advocated for application of the earlier Guidelines, arguing that applying the later-amended Guidelines would violate the Ex Post Facto Clause.

The district court, however, applied the 2009 Guidelines, following binding Seventh Circuit precedent which had held that post hoc application of more severe Guidelines amendments does not implicate ex post facto concerns because the federal Sentencing Guidelines are merely “advisory” after United States v. Booker (2005).  Thus, the punishment set by law is not increased, even if the Commission’s “advice” on severity is.  (The Sentencing Reform Act of 1984 also directs district courts to apply the Guidelines “in effect on the date the defendant is sentenced,” although the Commission has long followed an “unless it violates ex post facto” policy.  Thus, according to Peugh, every circuit other than the Seventh has expressed a view that application of more severe Guidelines can implicate ex post facto concerns.)

At sentencing, the district judge candidly expressed his sentencing approach.  He acknowledged that, after Booker and Kimbrough v. United States (2007), he was free to follow his “own penal philosophy.”   But he also observed that the Seventh Circuit has advised district judges to “think long and hard before substituting [their] personal penal philosophy for that of the Commission.”  Noting the Commission’s general policy of increasing punishment for fraud as loss amounts increase (as expressed in the increased Guidelines adjustments embodied in the 2009 Guidelines), the judge stated that he was “not convinced that this general policy should be disregarded in this particular case.”  Stating that he would “give … the resulting [2009] advisory guidelines range the appropriate amount of deference in this case,” the district judge then imposed a sentence of seventy months – the bottom of the 2009 guidelines range, but almost twice as long as the bottom of the 2000 range.

The Seventh Circuit affirmed, citing its earlier Demaree decision.  (In an interesting albeit tangential twist, when the government opposed certiorari in Demaree, it nevertheless agreed that ex post facto principles applied to Guidelines changes.  But in a footnote here, the government states that because the Court has subsequently made clear (in Gall and Kimbrough (2007)), that the Guidelines are “purely advisory,” the government has “since August 2008” taken the position that the Clause does not apply to Guidelines changes.)


The parties’ briefs in this case starkly diverge on the proper foundational approach to the constitutional definition of prohibited “ex post facto” laws.  For Peugh, it is simple: in two recent cases, Garner v. Jones (2000) and California Department of Corrections v. Morales (1995), the Court has stated that a legal change that creates a “significant risk of increased punishment” invokes ex post facto protections.  But the government appears to want to go back to first principles.  Noting that the Court has declined “to precisely delimit the scope of this Latin phrase,” the Solicitor General’s brief begins with Justice Chase’s 1798 delineation in Calder v. Bull of four categories of ex post facto cases, including “a law that changes the punishment.”  Because of its proximity to the mystical time of the Framing, Calder has long been taken as an expression of original intent (whether “plain meaning” or not).   The government then quotes a different phrase from the same cases on which Peugh relies — Garner and Morales – to suggest that a law can violate the Ex Post Facto Clause “only if it ‘increases the penalty by which a crime is punishable’” (my emphasis).  This “increase the penalty” test is obviously narrower than the “significant risk” test advocated by Peugh.  I would expect significant questioning at argument from Justices on both “sides” of this basic definitional issue.

There will also, of course, be significant questioning as to the application of whatever “test” the Court adopts.  After Booker (2005), the federal Sentencing Guidelines clearly do not set punishment; they were declared discretionary there as the Court’s remedy for the unconstitutionality of mandatory Guidelines under Apprendi v. New Jersey (2000) and Blakely v. Washington (2004).  (I assume some basic familiarity with the caselaw in this area, for anyone who has read this far.)  Nevertheless, the Court made clear in Booker that federal judges must still accurately determine, and then “consider,” the Guidelines when sentencing.  And the Court has subsequently noted that the Guidelines provide the “framework” and “the beginning,” or the baseline, for sentencing.  Thus, the reality is that federal sentencing judges begin with the range recommended by the Guidelines, and they explain any “variance” from that range by reference to the range itself.  As a result, while “advisory” in the sense of not requiring any particular sentence, the Guidelines undoubtedly continue to “exert significant influence” over federal sentencing (quoting the Sentencing Commission’s 2012 report on the “continuing impact of Booker”).

Still, the government argues, the “Court has never, to the government’s knowledge, applied the Clause to invalidate a provision that is merely advisory in nature.”  Of course, whether or not the Guidelines are “merely” advisory will likely be probed at oral argument.  And as Peugh points out, the Garner Court did say that “[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause.”  But the government counters that “new insights” should always be considered by enlightened sentencers – and new Guidelines amendments are just that, “insights” and not requirements.  The ultimate question for the Court on Tuesday will be whether this case will be the first to give life to the Garner dictum about discretion.

Meanwhile, semantics aside, some Justices undoubtedly will wonder whether the Court has wandered too far from the constitutional meaning of “ex post facto law” if it extends here.  As the Seventh Circuit noted in Demaree, a “significant risk” test if taken to its logical extreme could implicate many discretionary law and rule changes.  On the other hand, it does seem “inconceivable,” as Peugh argues, that a district judge would have upward-departed in this case to a 70-month sentence, had the Guideline range been 37-46 months as in 2000.  Thus the impact, and not just “risk,” of the post-conduct amendments on Peugh’s actual sentence seems clear – the district judge expressly mentioned “deference” to the more severe range in imposing sentence.  As the Court is (sometimes) wont to say, there is no need to take a principle to an extreme, if its application to the case at hand is clear.

All cases are fact-specific, and the Court has applied ex post facto principles to a number of parole and sentencing guidelines in the past without producing earthshattering doctrine.  Thus the Justices need not use this case to mine the very foundations of the Ex Post Facto Clause.  But they could.

Recommended Citation: Rory Little, Argument preview: Are federal Sentencing Guideline amendments “law” or merely “advice” when applying the Ex Post Facto Clause?, SCOTUSblog (Feb. 25, 2013, 12:22 PM),