The 2012-13 Supreme Court term significantly advanced the goal of fundamental fairness in sentencing. In two 5-4 decisions, rendered by different majorities, the court held that: (1) the Constitution’s Ex Post Facto Clause is violated when more punitive Sentencing Guidelines not in effect at the time a defendant committed the crime are applied in calculating his sentence, Peugh v. United States, __ S. Ct. __ (June 10, 2013) (Sotomayor, J.); and (2) just as a factor that increases a defendant’s maximum sentence is an element of a crime that must be determined by a jury, so too is any factor that increases a defendant’s mandatory minimum sentence. Alleyne v. United States, __ S. Ct. __ (June 17, 2013) (Thomas, J.).
In the first of these cases, defendant Peugh was sentenced in 2009 to 70 months’ imprisonment for bank fraud committed 10 years earlier. The Sentencing Guidelines in effect at the earlier time established a sentencing range of 30 to 37 months, while those in effect in 2009 set a range of 70 to 87 months. The issue before the court was whether the increased punishment calculated under the later, more punitive, guidelines, although only advisory, violated the Ex Post Facto Clause. In reversing and remanding for resentencing under the 1998 guidelines in effect when the crime was committed, the court emphasized that the guidelines are the starting point in all federal sentencing decisions and that calculating an incorrect guideline range is in itself reversible error.
