Peugh v. United States, No. 12–62.

• Court: United States Supreme Court
• Writing for the Court: Justice THOMAS
• Citation: 133 S.Ct. 2072,81 USLW 4372,186 L.Ed.2d 84
• Parties: Marvin PEUGH, Petitioner v. UNITED STATES.
• Docket Number: No. 12–62.
• Decision Date: 10 June 2013

133 S.Ct. 2072
186 L.Ed.2d 84
81 USLW 4372

Marvin PEUGH, Petitioner
v.
UNITED STATES.

No. 12–62.

Supreme Court of the United States

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

Limited on Constitutional Grounds
18 U.S.C.A. § 3553(a)(4)(A)(ii)

[133 S.Ct. 2075]

Syllabus^*

Petitioner Peugh was convicted of five counts of bank fraud for conduct that occurred in 1999 and 2000. At sentencing, he 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. Under the 1998 Guidelines, Peugh's sentencing range was 30 to 37 months, but the 2009 Guidelines assigned more severe consequences to his acts, yielding a range of 70 to 87 months. The District Court rejected Peugh's ex post facto claim and sentenced him to 70 months' imprisonment. The Seventh Circuit affirmed.

Held : The judgment is reversed, and the case is remanded.

675 F.3d 736, reversed and remanded.

Justice SOTOMAYOR delivered the opinion of the Court, except as to Part III–C, concluding that the Ex Post Facto Clause is violated when a defendant is sentenced under Guidelines promulgated

[133 S.Ct. 2076]

after he committed his criminal acts and the new version provides a higher sentencing range than the version in place at the time of the offense. Pp. 2079 – 2085, 2085 – 2088.

(a) Though no longer mandatory, see United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, the Guidelines still play an important role in sentencing procedures. A district court must begin “by correctly calculating the applicable Guidelines range,” Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445, and then consider the parties' arguments and factors specified in 18 U.S.C. § 3553(a). 552 U.S., at 49–50, 128 S.Ct. 586. The court “may not presume that the Guidelines range is reasonable,” id., at 50, 128 S.Ct. 586, and must explain the basis for its sentence on the record, ibid. On appeal, a sentence is reviewed for reasonableness under an abuse-of-discretion standard. Id., at 51, 128 S.Ct. 586. A district court is to apply the Guidelines “in effect on the date the defendant is sentenced,” § 3553(a)(4)(A)(ii), but, per the Guidelines, is to use the Guidelines in effect on the date the offense was committed should the Guidelines in effect on the sentencing date be found to violate the Ex Post Facto Clause. Pp. 2079 – 2081.

(b) The Constitution forbids the passage of ex post facto laws, a category including, as relevant here, “[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, 1 L.Ed. 648. The “scope of this Latin phrase” is given “substance by an accretion of case law.” Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 53 L.Ed.2d 344. The touchstone of the inquiry is whether a given change in law presents a “ ‘sufficient risk of increasing the measure of punishment attached to the covered crimes.’ ” Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236. Pp. 2081 – 2082.

(c) The most relevant prior decision is Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351. There, the Court found an ex post facto violation when the petitioner was sentenced under Florida's new sentencing guidelines, which yielded a higher sentencing range than the guidelines in place at the time of his crime. The pre-existing guidelines would have required the sentencing judge to provide clear and convincing reasons in writing for any departure, and the sentence would have been reviewable on appeal. But under the new guidelines, a sentence within the guidelines range required no explanation and was unreviewable. Variation in the sentence, though possible, was burdensome; so in the ordinary case, a defendant would receive a within-guidelines sentence. Thus, increasing the applicable guidelines range created a significant risk of a higher sentence.

The same principles apply to the post-Booker federal sentencing scheme, which aims to achieve uniformity by ensuring that sentencing decisions are anchored by the Guidelines. Normally, a “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. ––––, ––––, 131 S.Ct. 2685, 2692, 180 L.Ed.2d 519. That the court may impose a sentence outside that range does not deprive the Guidelines of force as the framework for sentencing. Uniformity is also promoted by appellate review for reasonableness with the Guidelines as a benchmark. Appellate courts may presume a within-Guidelines sentence is reasonable, see Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203, and may “consider the extent of the deviation” from the Guidelines as part of their reasonableness review,

[133 S.Ct. 2077]

Gall, 552 U.S., at 51, 128 S.Ct. 586. The sentencing regime also puts in place procedural hurdles that, in practice, make imposition of a non-Guidelines sentence less likely. Florida's scheme and the federal regime differ, but those differences are not dispositive. Common sense indicates that the federal system generally will steer district courts to more within-Guidelines sentences, and considerable empirical evidence suggests that the Guidelines have that effect. A retrospective increase in an applicable Guidelines range thus creates a sufficient risk of a higher sentence to constitute an ex post facto violation. Pp. 2082 – 2085.

(d) The Government's contrary arguments are unpersuasive. Its principal claim is that the Sentencing Guidelines lack sufficient legal effect to attain the status of a “law” within the meaning of the Ex Post Facto Clause. Changes in law need not bind a sentencing authority for there to be an ex post facto violation, and “[t]he presence of discretion does not displace the protections of [that] Clause.” Garner, 529 U.S., at 253, 120 S.Ct. 1362. As for contrasts between the Federal Guidelines and the Florida system in Miller, the difference between the two systems is one in degree, not in kind. The attributes of post-Booker sentencing fail to show that the Guidelines are but one among many persuasive sources a sentencing court may consult in making a decision. Recognizing an ex post facto violation here is consistent with post-Booker Sixth Amendment cases. The Court's Sixth Amendment cases, which focus on when a given finding of fact is required to make a defendant legally eligible for a more severe penalty, are distinct from its ex post facto cases, which focus on whether a change in law creates a “significant risk” of a higher sentence. The Booker remedy was designed, and has been subsequently calibrated, to exploit precisely this distinction: promoting sentencing uniformity while avoiding a Sixth Amendment violation. Nothing in this case undoes the holdings of such cases as Booker,Rita, and Gall. Pp. 2085 – 2088.

SOTOMAYOR, J., delivered the opinion of the Court, except as to Part III–C. GINSBURG, BREYER, and KAGAN, JJ., joined that opinion in full, and KENNEDY, J., joined except as to Part III–C. THOMAS, J., filed a dissenting opinion, in which ROBERTS, C.J., and SCALIA and ALITO, JJ., joined as to Parts I and II–C. ALITO, J., filed a dissenting opinion, in which SCALIA, J., joined.

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, 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...