Peugh v. United States, No. 12–62.

• Court: U.S. Supreme Court
• Writing for the Court: Justice SOTOMAYOR delivered the opinion of the Court, except as to Part III–C.
• Citation: 133 S.Ct. 2072,186 L.Ed.2d 84,569 U.S. 530
• Decision Date: 10 June 2013
• Docket Number: No. 12–62.
• Parties: Marvin PEUGH, Petitioner v. UNITED STATES.

569 U.S. 530
133 S.Ct. 2072
186 L.Ed.2d 84

Marvin PEUGH, Petitioner
v.
UNITED STATES.

No. 12–62.

Supreme Court of the United States

Argued Feb. 26, 2013.
Decided June 10, 2013.

Stephen B. Kinnaird, Washington, DC, for Petitioner.

Eric J. Feigin, Washington, DC, for Respondent.

Stephen B. Kinnaird, Counsel of Record, Candice Castenada, Paul Hastings LLP, Washington, DC, Katherine F. Murray, Paul Hastings LLP, Los Angeles, CA, Stephanos Bibas, Philadelphia, PA, Allan A. Ackerman, Chicago, IL, Amy E. Jensen, Paul Hastings LLP, Atlanta, GA, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General, Lanny A. Breuer, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Eric J. Feigin, Assistant to the Solicitor General, Nina Goodman, Attorney, Department of Justice, Washington, DC, for United States.

Justice SOTOMAYOR delivered the opinion of the Court, except as to Part III–C.^**

The Constitution forbids the passage of ex post facto laws, a category that

133 S.Ct. 2078

includes "[e]very law that changes the punishment

569 U.S. 533

, and inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (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 Hollewell, 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 artificially inflated the balances of accounts under their control 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

569 U.S. 534

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.

133 S.Ct. 2079

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 Category 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 violated 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

569 U.S. 535

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.¹ 568 U.S. ––––, 133 S.Ct. 594, 184 L.Ed.2d 389 (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, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The Sentencing Reform Act of 1984, 98 Stat. 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, 109 S.Ct. 647. 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).

569 U.S. 536

In United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, 125 S.Ct. 738. Under the resulting scheme, a district court is still required to consult the Guidelines. See

133 S.Ct. 2080

id., at 259–260, 264, 125 S.Ct. 738; 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, 125 S.Ct. 738. 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, 125 S.Ct. 738.

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, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (citation omitted). The district court must then consider the arguments of the parties and the factors set forth in § 3553(a). Id., at 49–50, 128 S.Ct. 586. The district court "may not presume that the Guidelines range is reasonable," id., at 50, 128 S.Ct. 586; and it "may in appropriate cases impose a non-Guidelines sentence based on disagreement with the [Sentencing]...