Subject: Supreme Court holds Ex Post Facto Clause prohibits retrospective application of advisory guidelines
In an opinion by Justice Sotomayor, the Supreme Court held today in Peugh v. United States, No. 12-62, that “[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.” The Seventh Circuit’s precedent in United States v. Demaree, 459 F. 3d 791 (7th Cir. 2006), is reversed.
In holding that the Ex Post Facto Clause is violated when a defendant is sentenced under a more severe version of the guidelines in effect at the time of sentencing rather than the version in effect at the time of the offense, the Court points to the continuing role of the guidelines as the “initial benchmark” and “starting point” in the district court, the various procedural hurdles to a non-guideline sentence in the district court, the presumption of reasonableness of a within-guideline sentence in the court of appeals, and appellate review of a district court’s procedure. All of these “gent[le] checks” on the district court’s discretion, it says, make a guideline sentence more likely, absent a reason for a non-guideline sentence: “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.”
As evidence that the “procedural measures” adopted by the federal sentencing system have the effect of “influencing the sentences imposed by judges,” the Court points to empirical data showing that, since 2007, the majority of sentences, in the aggregate, are within the guidelines or below the guidelines based on a government motion.
Dissenting opinions by Justice Thomas, joined in part by Justices Alito, C.J. Roberts, and Scalia, and by Justice Alito, joined by Justice Scalia. Opinion is here: http://www.supremecourt.gov/opinions/12pdf/12-62_5g68.pdf
