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Opinion analysis: Four differing views leave ex post facto doctrine muddled but the result for the Guidelines is clear

In Peugh v. United States, Monday’s significant opinion applying Article I’s Ex Post Facto Clauses, all members of the Court appeared to agree that the constitutional doctrine in this area is a bit muddled.  Still, the Justices also appeared to endorse the view, with varying degrees of enthusiasm, that “the touchstone of this Court’s inquiry is whether a given change in the law presents a ‘significant risk’ of increasing the measure of punishment.”   Two dissenters (Justice Alito, joined by Justice Scalia) left open whether the Court should “reconsider that test’s merits,” while disagreeing with its application here.  Meanwhile, the author of the “significant risk” test, Justice Thomas in California Department of Corrections v. Morales (1995), expressed his separate dissenting view that the test was an “error” that failed to apply “original meaning,” and that the constitutional doctrine should be reconsidered because it has become “unworkable.”  Finally, when it came to applying the test, only five Justices could agree that an ex post facto violation was proven here (Chief Justice Roberts joined Justice Thomas’s dissent on this point).  The result is that while it is now clear that a federal sentencing judge must apply the Sentencing Guidelines that were in effect when the offense was committed (unless new Guidelines do not significantly risk increasing the sentence), the textual mystery of what “ex post facto” generally means remains.

Justice Sotomayor delivering majority opinion (Art Lien)

Justice Sotomayor delivering majority opinion (Art Lien)

As an important aside, the Court’s opinions seem to drop small suggestions that the decision still pending in Alleyne v. United States may go the defendant’s way.  In distinguishing Sixth Amendment concerns from ex post facto doctrine, the Peugh majority explained that “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” (emphasis added).  That sounds like a significant reformulation of Apprendi’s “increase the statutory maximum” formula – one that would accommodate application of Apprendi to mandatory minimum sentences, which is the question presented in Alleyne.  Meanwhile, Justice Thomas asserted oppositely in his dissent that “the law provides the defendant with only one assurance: He will be sentenced within the range affixed to his offense by statute.”  Tealeaf reading is notoriously inaccurate – but I’ll suggest that a five-to-four defense-friendly decision in Alleyne is coming soon, perhaps as early as this Thursday.

Factual background of Peugh

As explained in my preview post, Peugh’s facts are simple and clear.  Peugh and a partner ran a farming business and were convicted of federal banking frauds they committed in 1999-2000.  By the time Peugh was sentenced in 2009, the Guidelines applicable to his offenses had changed, in two significant ways.  First, and most immediately, the offense severity of his crimes had been raised, so that his presumptive Guideline range was increased – from 30-37 months to 70-87 months.  But second, and more doctrinally confusing, the Guidelines had gone from “mandatory” to being declared “advisory” under the “Booker remedy” of 2005.  The Seventh Circuit had previously made it clear that the Booker switch to advisory guidelines eliminated any ex post facto objection.  So the district court denied Peugh’s motion to apply the 1999 Sentencing Guidelines (30-37 months) and sentenced Peugh to the bottom of the 2009 range (70 months), saying only that this was the “most appropriate sentence in this case.”  Other circuits had ruled that applying increased albeit advisory Guidelines would violate the Ex Post Facto Clauses, so the Court granted certiorari.

 The Majority Opinion

In an opinion by Justice Sotomayor that was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan, the majority found an ex post facto violation here.  Candidly noting that “each of the parties can point to prior decisions of this Court that lend support to its view,” the Court noted that the Ex Post Facto Clauses do not apply solely to legislative increases, and that “some measure of discretion” does not defeat an ex post facto claim.  The majority re-endorsed the Morales “significant risk” test – now on the books for over eighteen years – as “the touchstone,” and it explained that “the test cannot be reduced to a single formula.”

Applying the test, the majority found “the most relevant of our prior decisions” to be Miller v. Florida (1987). Although the Miller Court had applied a different and now-abandoned test, its result (still endorsed as good law) was that a change to Florida’s criminal sentencing guidelines regime violated the Ex Post Facto Clause.  Concluding that any distinctions between Miller and Peugh’s case are differences only “in degree, not in kind,” the Court ruled that “a retrospective increase in the Guidelines range creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”

Significantly, the opinion by Justice Sotomayor – the only Justice who has actually sentenced defendants under the Sentencing Guidelines – surveyed the post-Booker law and concluded that, while now advisory, “common sense indicates that … this system will steer district courts to more within-Guidelines sentences.”  Although judges have more discretion after Booker, “the [Guidelines] range is intended to, and usually does, exert controlling influence ….”  In support, the Court referred to post-Booker sentencing data which shows that less than twenty percent of federal sentences result in outside-Guidelines sentences (other than on government motion), and that sentences for the same crime tend to go up when the Guidelines range is increased.

The Dissents

Notably, Justice Thomas’s dissent (joined in this Part by the Chief Justice and Justices Scalia and Alito) does not dramatically contest the majority’s view of federal sentencing reality.  He too recognizes that “Guidelines do influence the sentences imposed by judges,” and that they can act to “nudge the sentencing judge toward the sentencing range.”  His conclusion, however, is that the now-advisory Guidelines do not “meaningfully constrain” judges’ discretion, so that there is not “‘sufficient risk’ [quoting the majority] for ex post facto purposes.”

This view – that the current test is not satisfied by advisory Guidelines — is joined by all four dissenters.  Justice Alito penned a three-sentence separate dissent, joined by Justice Scalia but not the Chief, to make this redundantly clear.  (The same point could be made simply by not joining certain parts of Justice Thomas’s dissent, as the Chief Justice did.)  But Justice Thomas goes on, in a lengthy discourse not joined by any others, to make plain that he would reformulate the entire ex post facto doctrine as applied to criminal punishments.  This is not unusual for Justice Thomas, who often suggests that the Court reconsider, and even abandon, long-settled doctrine, when he finds constitutional text and history to be contrary.

The doctrinal difficulty is that “ex post facto” in the Constitution has long been viewed as a “term of art,” and in a very early 1798 opinion (Calder v. Bull, 1798) Justice Chase set out for the Court, extra-textually, “four types of ex post facto laws” that could violate the provision.  The third one was “every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.”  Justice Thomas now sees this as plain language: it can apply only to “laws” that “inflict a greater punishment than the law annexed to the crime when committed.”  Because the possible statutory maximum punishment applicable to Peugh never changed, new “advisory Guidelines” within the statutory range simply cannot “be ex post facto laws,” no matter what the “risk” may be regarding length of imprisonment within the range.  (The semantic focus of this assertion on the maximum statutory range reveals why analogies to Apprendi’s “statutory maximum” rule are raised; see my discussion of the pending Alleyne case above.)

The Subtly Four-Justice Opinion

On Justice Thomas’s “Guidelines can never violate ex post facto” point, the majority flatly disagrees, and as noted the other three dissenters also do not join it.  (But neither do they disavow it – Justice Alito simply writes that he does “not have occasion” in this case “to reconsider [current doctrine’s] merits or its relation to the original understanding.”).   But in a short final section of her opinion that might be easy to miss as only a plurality – Part III(C), which is not joined by Justice Kennedy, thus making it four-to-four dictum – Justice Sotomayor states an aggressively different view.

In Part III(C), Justice Sotomayor (joined by Justices Ginsburg, Breyer, and Kagan) discusses the “basic principles of fairness” that she believes “animate the Ex Post Facto Clause.”  The Clause is “not limited to legislative acts” and “does not merely protect reliance interests.”  Instead it also “reflects principles of ‘fundamental justice,’” which include “having the government abide by the rules of law it establishes.”  The precise meaning of this formulation is not clear, and in footnote 6 Justice Sotomayor concedes (in what might have been a last-minute, unsuccessful effort to retain Justice Kennedy’s vote for this Part) that it is “not a doctrine unto itself.”  But with what amounts to four differing views in this case (Justice Kennedy’s silent withdrawal from Part III(C) being the fourth), there is no doubt that ex post facto doctrine remains murky.  Thus perhaps the odds in favor of future cert. petitions on the topic may be improved.  Law school Supreme Court clinics, take note!

On Remand

Finally, as is always true in federal cases, Peugh’s case is remanded “for further proceedings consistent with this opinion.”  Presumably this means a resentencing for Mr. Peugh (absent some negotiated disposition).  On this point, the majority opinion significantly notes that upon resentencing, the district court is “free to give careful consideration to the current version of the Guidelines,” because the current, later-promulgated, increased range “represent[s] the most recent views of the agency charged by Congress with developing sentencing policy.”  The majority notes, however, that considering a new, higher Guideline range as one possible reason “for deviating from the older Guidelines” is “simply not equivalent” to starting with that range to find within-range guidance.  Thus on remand, the same 70-month sentence could possibly be imposed and affirmed; or the district court could decide that the 30-37 month range originally applicable is “most appropriate.”   It seems that the district court in this case will now truly have wide-open discretion for formulating his sentence.

But most significantly, Peugh has been in custody since his 2010 sentencing, and thus appears to have already served beyond the bottom of the original 30-37 month range.  Thus, for Peugh, a speedy issuance of the mandate and remand to the sentencing court for final decision seems warranted, because his immediate release for time served is one not implausible result.

In Plain English:  When Mr. Peugh, a farmer, committed federal fraud crimes, the rules that governed his sentencing (called “Guidelines”) recommended a sentence of 30-37 months in prison.   But before Peugh was actually sentenced, the government agency responsible for setting the Guidelines increased that recommendation to 70-87 months.  The judge then sentenced Peugh to 70 months in prison.  Because the U.S. Constitution prohibits laws that increase the punishment for a crime after it is committed (known as “ex post facto” laws), the Court reversed Peugh’s sentence.  It ruled that federal courts must use the Sentencing Guidelines that were in effect when a crime was committed, instead of tougher Guidelines that went into effect later.  The Justices are divided five to four, so the specific rules that should govern these kinds of “ex post facto” claims remain unclear.  But the result in this case is clear: Mr. Peugh is entitled to be resentenced under the rules that were in effect when his crime was committed.

Recommended Citation: Rory Little, Opinion analysis: Four differing views leave ex post facto doctrine muddled but the result for the Guidelines is clear, SCOTUSblog (Jun. 12, 2013, 10:49 AM),