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.
