The U.S. Supreme Court took action last month to "steer district courts to more within-guidelines sentences." The court did this by declaring that the application of Federal Sentencing Guidelines formulated after a specific crime was committed, and applied to that crime, violated the ex post facto clause of the U.S. Constitution.

Initially, the U.S. Court of Appeals for the Seventh Circuit dismissed the appeal of Marvin Peugh, convicted of five counts of bank fraud and sentenced to 70 months in prison. Peugh argued that his sentence violated the U.S. Constitution because it was based on sentencing guidelines established in 2009, though he committed the crimes in 1999 and 2000.

If Peugh had been sentenced under the 1998 guidelines, his sentence range would have been 30 to 37 months in prison instead of the 70 to 87 months recommended by the 2009 guidelines.

He argued that the application of the harsher guidelines violated the ex post facto clause, which bars the passage of laws that impose a harsher punishment than the one in effect when the crime was committed. The U.S. Supreme Court agreed.

Article 1, Section 9, of the U.S. Constitution prohibits Congress from passing a law that changes the legal consequences of an act after its execution — or, as in Peugh's case, imposes additional punishment than was prescribed by law at the time the crime was committed.

According to Jennifer G. Roma in the Suffolk University Law Review, the framers of the Constitution incorporated the ex post facto clause into the Constitution to safeguard against what they had experienced under British rule, namely "impos[ing] a punishment for an act which was not punishable at the time it was committed; or impos[ing] additional punishment to that then prescribed."

The Sentencing Reform Act of 1984 directed the U.S. Sentencing Commission to promulgate uniform guidelines that would be binding on federal courts at sentencing.

In 2005, the U.S. Supreme Court in United States v. Booker, 543 U.S. 220 (2005), ruled invalid two provisions of the Sentencing Reform Act that made sentence guidelines mandatory. In Booker and Blakely v. Washington, 542 U.S. 296 (2004), the court concluded that the Sixth Amendment does apply to the sentencing guidelines. The remedy was to make sentencing guidelines advisory.

U.S. Supreme Court Justice Sonia Sotomayor, writing for the majority in Peugh v. United States, 569 U.S. ___ (2013), made it clear that the guidelines still carry enormous weight: "The post-Booker federal sentencing scheme aims to achieve uniformity by ensuring that sentencing decisions are anchored by the guidelines and that they remain a meaningful benchmark through the process of appellate review."

The Supreme Court has systematically tried to emphasize the import of the guidelines in the shadow of Booker. For instance, courts of appeals may presume a within-guidelines sentence is reasonable, as in Rita v. United States, 551 U.S. 338 (2007), and appellate courts may further "consider the extent of the deviation" from the guidelines as part of their reasonableness review, as in Gall v. United States, 552 U.S. 38 (2007).

"The post-Booker sentencing regime puts in place procedural 'hurdle[s]' that, in practice, makes the imposition of a non-guidelines sentence less likely," Sotomayor said in Peugh.

Sotomayor continued, "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."

"Peugh points to considerable empirical evidence indicating that the sentencing guidelines have the intended effect of influencing the sentences imposed by judges. Even after Booker rendered the sentencing guidelines advisory, district courts have, in the vast majority of cases, imposed either within-guidelines sentences or sentences that depart downward from the guidelines on the government's motion," Sotomayor said.

According to Sotomayor, the "most relevant" decision applying ex post facto to sentencing guidelines was Miller v. Florida, 482 U.S. 423 (1987). In that ruling, the Supreme Court found an ex post facto violation when the defendant received a higher sentence under Florida's new sentencing guidelines than the one recommended when he committed the crime.

Sotomayor acknowledged that "there are relevant differences between Florida's sentencing scheme and the current federal sentencing regime," but said "these differences are not dispositive."

"Although the federal system's procedural rules establish gentler checks on the sentencing court's discretion than Florida's did, they nevertheless impose a series of requirements on sentencing courts that cabin the exercise of that discretion," Sotomayor said. "Common sense indicates that in general, this system will steer district courts to more within-guidelines sentences."

Sotomayor concluded, "The federal system adopts procedural measures intended to make the guidelines the lodestone of sentencing. 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."

Justice Clarence Thomas wrote in dissent that the sentencing guidelines may influence a judge's sentence but ultimately the guidelines are discretionary. Thomas agreed that the Constitution bars ex post facto laws that increase punishment, but attempted to distinguish between a "discretionary" increase in punishment and a "law" that increases punishment.

"It is difficult to see how an advisory guideline, designed to lead courts to impose sentences more in line with fixed statutory objectives, could ever constitute an ex post facto violation. But that is exactly what the court concludes," Thomas wrote.

"The Constitution prohibits Congress from passing ex post facto laws," Thomas continued. "The retroactive application of the 2009 guidelines did not alter the punishment affixed to petitioner's crime and does not violate this proscription." •

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is a former district attorney for Lawrence County and a former member of the Pennsylvania Board of Probation and Parole. Reach him at www.mattmangino.com and follow him on Twitter 
@MatthewTMangino.