Criminal defense attorneys and their clients recently scored a win in Peugh v. United States, a U.S. Supreme Court decision which held that a criminal defendant cannot be sentenced based upon the current federal Sentencing Guidelines if those guidelines call for a harsher punishment than the guidelines that were in place at the time of the underlying offense. See Peugh v. United States, No. 12-62, 2013 WL 2459523 (U.S. June 10, 2013). The Supreme Court found that imposing such a sentence violates the Ex Post Facto Clause of the Constitution. Interestingly, beyond the obviously helpful holding, Justice Clarence Thomas' dissent may offer significant, additional help to criminal defendants in the sentencing context.

In his dissent, which drew the votes of four Justices, Justice Thomas argued that, because the Sentencing Guidelines are merely advisory—and indeed have "no legal effect on a defendant's sentence"—they do not create a sufficient risk of an ex post facto violation. Not only do four justices now believe that the Sentencing Guidelines have "no legal effect on a defendant's sentence," the four dissenters made clear their belief that the Sentencing Guidelines "do not constrain the discretion" of the sentencing judge, that sentencing judges can depart from a guidelines sentence on the basis of policy disagreement, and that a sentence based on older, less harsh Sentencing Guidelines is likely to be found on appeal to be substantively reasonable. As a result, the dissent is useful to support arguments for sentences below the applicable Sentencing Guidelines range.

The 'Peugh' Decision

In Peugh, the Supreme Court held that the Ex Post Facto Clause of the Constitution is violated when a defendant is sentenced under the current federal Sentencing Guidelines and those current guidelines provide for a higher sentencing range than the guidelines that were in effect at the time of the crime.

Petitioner Marvin Peugh was convicted of five counts of bank fraud for conduct that occurred in 1999 and 2000. At his 2010 sentencing, Peugh argued that the Ex Post Facto Clause required that he be sentenced under the 1998 version of the guidelines that were in effect at the time of his offense, rather than the 2009 version of the guidelines in effect at the time of his sentencing. The applicable sentencing range under the 2009 guidelines was 70 to 87 months, considerably higher than the 30 to 37 months provided for in the 1998 guidelines. The district court rejected Peugh's argument and sentenced him to 70 months' imprisonment. The U.S. Court of Appeals for the Seventh Circuit affirmed, but the Supreme Court reversed.

In an opinion authored by Justice Sonia Sotomayor, joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, the court found that the Sentencing Guidelines, although not mandatory, have enough of an anchoring effect on district courts so as to create "a sufficient risk of a higher sentence" for someone in Peugh's position. The court thus held that a sentence based upon Sentencing Guidelines that were promulgated after a defendant committed his criminal act, and which increase that defendant's sentencing range, violates the Ex Post Facto Clause.

The court gave several reasons for its holding. First, it noted that, although advisory, the guidelines range is "intended to, and usually does, exert controlling influence on the sentence that the court will impose." District courts must begin their sentencing determination by calculating the applicable guidelines range, and "a major departure should be supported by a more significant justification than a minor one." Second, a district court judge's sentencing decision is anchored by the appellate review process. A court of appeals may presume that a sentence within the guidelines range is reasonable, and may further "consider the extent of the deviation" from the guidelines range as part of its reasonableness review on appeal. In addition, a district court judge's failure to calculate the correct guidelines range is procedural error, which "ensures that [the guidelines] remain the starting point for every sentencing calculation in the federal system." For these reasons, the court found that the guidelines remain the "lodestone of sentencing," and thus, 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."1

In dissent, Justice Thomas, joined by Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito, argued that, although the Sentencing Guidelines may "nudge the sentencing judge toward a sentencing range," they are merely advisory. As such, they "do not constrain the discretion of district courts and, thus, have no legal effect on a defendant's sentence." Accordingly, the retroactive application of the Sentencing Guidelines does not create a "sufficient risk" of increasing a defendant's punishment, and thus, cannot constitute an ex post facto violation.2 As discussed more fully below, the dissent contains strong language about the Sentencing Guidelines that criminal defense attorneys can rely upon to argue for below-guidelines sentences for their clients.

Landscape Before 'Peugh'

The court's statements in Peugh—in both the majority opinion and the dissent—are hardly a surprise to those who have watched the Supreme Court's sentencing revolution unfold during the past dozen or so years. Through a series of sentencing decisions, the court has provided criminal defendants with multiple avenues to argue for lower sentences, and has more generally called into question the persuasive force of the federal Sentencing Guidelines. The dissent in Peugh can—and should—be viewed by criminal defense attorneys as another iteration of this revolution.

The primary catalyst for this change was Apprendi v. New Jersey, 530 U.S. 466 (2000), in which the court held that the Sixth Amendment right to a trial by jury required that, other than the fact of a prior conviction, any fact necessary to authorize a defendant's sentence beyond the statutory maximum sentence for a crime must be found by a jury beyond a reasonable doubt. Apprendi ushered in a new era of sentencing decisions in which the court strengthened criminal defendants' Sixth Amendment rights.

Four years later, in Blakely v. Washington, 542 U.S. 296 (2004), the court found that the State of Washington's sentencing scheme violated Blakely's Sixth Amendment rights because it allowed the sentencing judge to increase his sentence beyond the statutory maximum for the underlying crime based on additional facts not found by the jury. Because of the similarities between Washington's sentencing scheme and the federal Sentencing Guidelines, after Blakely, the constitutionality of the federal Sentencing Guidelines became immediately suspect.

The next year, in United States v. Booker, 542 U.S. 220 (2005), the court held that the federal Sentencing Guidelines violate the Sixth Amendment because they allow a judge to impose a sentence based on facts not found by a jury. A separate five-justice majority determined that the appropriate remedy would be to sever and excise 18 U.S.C. §3553(b)(1), the portion of the sentencing statute that made the guidelines mandatory. In addition, the court severed and excised 18 U.S.C. §3742(e), the provision of the same statute that set forth the standard of review on appeal, instead reading into the statute a "reasonableness" standard of review. By so doing, the court rendered the federal Sentencing Guidelines merely advisory.

Finally, the court recently held in Alleyne v. United States that, because mandatory minimum sentences increase the penalty for a crime, any fact necessary to impose a mandatory minimum sentence is an "element" of a crime that must be found by the jury.?? No. 11-9335, 2013 WL 2922116 (U.S. June 17, 2013).

The 'Peugh' Dissent

Peugh's majority opinion is obviously helpful to criminal defendants. But the Peugh dissent can also be relied upon by criminal defense attorneys when advocating for a below-guidelines sentence for their clients.

First, the dissent, joined by four justices, makes clear that the Sentencing Guidelines are sufficiently non-persuasive and non-binding on district court judges as to not even create a risk of a cognizable ex post facto violation. Indeed, in perhaps the strongest rhetoric by any members of the court to date regarding the diminished force of the Sentencing Guidelines, the dissent proclaims that the Sentencing Guidelines "do not constrain the discretion of district courts, and, thus, have no legal effect on a defendant's sentence." The dissent further notes that a district court "may not presume that a within-Guidelines sentence is appropriate," but rather, "must make an individualized assessment of the appropriate sentence based on the facts presented." Criminal defense attorneys can and should cite this language when encouraging a sentencing judge to depart or vary downward from the guidelines.

Second, the dissent, reinforcing recent Supreme Court precedent, explicitly acknowledges the fact that a district court may "freely depart" from the guidelines range not only because of the court's individualized factual assessment, but also because the court simply disagrees with the Sentencing Commission's views. In other words, the dissent makes clear that a departure from the guidelines can be based solely on a "policy disagreement with the Guidelines themselves." This sort of explicit acceptance of policy-based arguments by the Supreme Court should be embraced by criminal defense attorneys in their sentencing submissions.

Third, with respect to any possible constraints imposed upon a sentencing judge because of subsequent appellate review of that sentence (a factor relied upon by the majority in finding an ex post facto violation), the dissent acknowledges that the reason a district judge must provide an explanation for an outside-the-guidelines sentence is to ensure "meaningful appellate review." However, the dissent reiterates that an appellate court may not presume that a sentence outside the applicable guidelines range is unreasonable. Rather, appellate courts must review all sentences—within the guidelines range or outside the guidelines range—under the deferential abuse-of-discretion standard. The dissent reiterates that a sentencing judge's "freedom to impose a reasonable sentence outside the [guidelines] range is unfettered."

Finally, and perhaps most significantly, the dissent strongly suggests that a sentence based upon older, lower Sentencing Guidelines is likely to be found substantively reasonable on appeal. In response to petitioner Peugh's argument that the guidelines limit district court discretion because sentences falling outside the guidelines are more likely to be reversed on appeal for substantive unreasonableness, the dissent notes its

doubt…that reversal is a likely outcome when a district judge can justify his sentence based on agreement with either of two Guidelines—the old or the new. If a district court calculated the sentencing range under the new Guidelines but sentenced the defendant to a below-Guidelines sentence that fell within the range provided by the old Guidelines, it would be difficult to label such a sentence "substantively unreasonable." To do so would cast doubt on every within-Guidelines sentence issued under the old Guidelines.

This passage of the dissent should encourage criminal defense attorneys to include in their sentencing submissions a calculation of the sentencing range that would have been applied to their client under older, lower Sentencing Guidelines. Indeed, post-Peugh, there is a greater likelihood that a sentence that falls within an older, lower Sentencing Guidelines range will be found to be substantively reasonable on appeal.

In sum, the dissent in Peugh—joined by four Justices—explicitly states that the federal Sentencing Guidelines do not create "any hurdle at all" for district courts wishing to depart from a guidelines sentencing range. This is another significant step forward in the sentencing revolution. Criminal defense attorneys should seize upon this strong rhetoric when advocating for below-guidelines sentences on behalf of their clients, and should brace themselves for further developments to come.

Anthony S. Barkow is a partner and Alison I. Stein is an associate in Jenner & Block's white collar defense and investigations group in New York.


1. Justice Anthony Kennedy did not join another part of the opinion which discusses the "basic principles of fairness that animate the Ex Post Facto Clause."

2. Justice Thomas also argued for a reformulation of ex post facto doctrine in two parts of the dissent not joined by any other justices.