Peugh v. United States ( 2013 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PEUGH v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 12–62. Argued February 26, 2013—Decided June 10, 2013
Petitioner Peugh was convicted of five counts of bank fraud for conduct
that occurred in 1999 and 2000. At sentencing, he argued that the
Ex Post Facto Clause required that he be sentenced under the 1998
version of the Federal Sentencing Guidelines in effect at the time of
his offenses rather than under the 2009 version in effect at the time
of sentencing. Under the 1998 Guidelines, Peugh’s sentencing range
was 30 to 37 months, but the 2009 Guidelines assigned more severe
consequences to his acts, yielding a range of 70 to 87 months. The
District Court rejected Peugh’s ex post facto claim and sentenced him
to 70 months’ imprisonment. The Seventh Circuit affirmed.
Held: The judgment is reversed, and the case is remanded.
675 F. 3d 736, reversed and remanded.
JUSTICE SOTOMAYOR delivered the opinion of the Court, except as to
Part III–C, concluding that the Ex Post Facto Clause is violated when
a defendant is sentenced under Guidelines promulgated after he
committed his criminal acts and the new version provides a higher
sentencing range than the version in place at the time of the offense.
Pp. 4–13, 15–20.
(a) Though no longer mandatory, see United States v. Booker, 543
U. S. 220, the Guidelines still play an important role in sentencing
procedures. A district court must begin “by correctly calculating the
applicable Guidelines range,” Gall v. United States, 552 U. S. 38, 49,
and then consider the parties’ arguments and factors specified in 18
U. S. C. §3553(a). 552 U. S., at 49–50. The court “may not presume
that the Guidelines range is reasonable,” id., at 50, and must explain
the basis for its sentence on the record, ibid. On appeal, a sentence is
reviewed for reasonableness under an abuse-of-discretion standard.
2 PEUGH v. UNITED STATES
Syllabus
Id., at 51. A district court is to apply the Guidelines “in effect on the
date the defendant is sentenced,” §3553(a)(4)(A)(ii), but, per the
Guidelines, is to use the Guidelines in effect on the date the offense
was committed should the Guidelines in effect on the sentencing date
be found to violate the Ex Post Facto Clause. Pp. 4–7.
(b) The Constitution forbids the passage of ex post facto laws, a cat-
egory including, as relevant here, “[e]very law that changes the pun-
ishment, and inflicts a greater punishment, than the law annexed to
the crime, when committed.” Calder v. Bull, 3 Dall. 386, 390. The
“scope of this Latin phrase” is given “substance by an accretion of
case law.” Dobbert v. Florida, 432 U. S. 282, 292. The touchstone of
the inquiry is whether a given change in law presents a “ ‘sufficient
risk of increasing the measure of punishment attached to the covered
crimes.’ ” Garner v. Jones, 529 U. S. 244, 250. Pp. 7–8.
(c) The most relevant prior decision is Miller v. Florida, 482 U. S.
423. There, the Court found an ex post facto violation when the peti-
tioner was sentenced under Florida’s new sentencing guidelines,
which yielded a higher sentencing range than the guidelines in place
at the time of his crime. The pre-existing guidelines would have re-
quired the sentencing judge to provide clear and convincing reasons
in writing for any departure, and the sentence would have been re-
viewable on appeal. But under the new guidelines, a sentence within
the guidelines range required no explanation and was unreviewable.
Variation in the sentence, though possible, was burdensome; so in the
ordinary case, a defendant would receive a within-guidelines sen-
tence. Thus, increasing the applicable guidelines range created a
significant risk of a higher sentence.
The same principles apply to the post-Booker federal sentencing
scheme, which aims to achieve uniformity by ensuring that sentenc-
ing decisions are anchored by the Guidelines. Normally, a “judge will
use the Guidelines range as the starting point in the analysis and
impose a sentence within the range.” Freeman v. United States, 564
U. S. ___, ___. That the court may impose a sentence outside that
range does not deprive the Guidelines of force as the framework for
sentencing. Uniformity is also promoted by appellate review for rea-
sonableness with the Guidelines as a benchmark. Appellate courts
may presume a within-Guidelines sentence is reasonable, see Rita v.
United States, 551 U. S. 338, 347, and may “consider the extent of the
deviation” from the Guidelines as part of their reasonableness re-
view, Gall, 552 U. S., at 51. The sentencing regime also puts in place
procedural hurdles that, in practice, make imposition of a non-
Guidelines sentence less likely. Florida’s scheme and the federal re-
gime differ, but those differences are not dispositive. Common sense
indicates that the federal system generally will steer district courts to
Cite as: 569 U. S. ____ (2013) 3
Syllabus
more within-Guidelines sentences, and considerable empirical evi-
dence suggests that the Guidelines have that effect. A retrospective
increase in an applicable Guidelines range thus creates a sufficient
risk of a higher sentence to constitute an ex post facto violation.
Pp. 9–13.
(d) The Government’s contrary arguments are unpersuasive. Its
principal claim is that the Sentencing Guidelines lack sufficient legal
effect to attain the status of a “law” within the meaning of the Ex
Post Facto Clause. Changes in law need not bind a sentencing au-
thority for there to be an ex post facto violation, and “[t]he presence of
discretion does not displace the protections of [that] Clause.” Garner,
529 U. S., at 253. As for contrasts between the Federal Guidelines
and the Florida system in Miller, the difference between the two sys-
tems is one in degree, not in kind. The attributes of post-Booker sen-
tencing fail to show that the Guidelines are but one among many per-
suasive sources a sentencing court may consult in making a decision.
Recognizing an ex post facto violation here is consistent with post-
Booker Sixth Amendment cases. The Court’s Sixth Amendment cases,
which focus on when a given finding of fact is required to make a de-
fendant legally eligible for a more severe penalty, are distinct from its
ex post facto cases, which focus on whether a change in law creates a
“significant risk” of a higher sentence. The Booker remedy was de-
signed, and has been subsequently calibrated, to exploit precisely this
distinction: promoting sentencing uniformity while avoiding a Sixth
Amendment violation. Nothing in this case undoes the holdings of
such cases as Booker, Rita, and Gall. Pp. 15–19.
SOTOMAYOR, J., delivered the opinion of the Court, except as to Part
III–C. GINSBURG, BREYER, and KAGAN, JJ., joined that opinion in full,
and KENNEDY, J., joined except as to Part III–C. THOMAS, J., filed a
dissenting opinion, in which ROBERTS, C. J., and SCALIA and ALITO, JJ.,
joined as to Parts I and II–C. ALITO, J., filed a dissenting opinion, in
which SCALIA, J., joined.
Cite as: 569 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–62
_________________
MARVIN PEUGH, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 10, 2013]
JUSTICE SOTOMAYOR delivered the opinion of the Court,
except as to Part III–C.*
The Constitution forbids the passage of ex post facto
laws, a category that includes “[e]very law that changes
the punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed.” Calder v.
Bull, 3 Dall. 386, 390 (1798) (emphasis deleted). The U. S.
Sentencing Guidelines set forth an advisory sentencing
range for each defendant convicted in federal court. We
consider here whether there is an ex post facto violation
when a defendant is sentenced under Guidelines promul-
gated after he committed his criminal acts and the new
version provides a higher applicable Guidelines sentencing
range than the version in place at the time of the offense.
We hold that there is.
I
Petitioner Marvin Peugh and his cousin, Steven Holle-
well, ran two farming-related businesses in Illinois. Grain-
ery, Inc., bought, stored, and sold grain; Agri-Tech, Inc.,
provided farming services to landowners and tenants.
——————
*JUSTICE KENNEDY joins this opinion except as to Part III–C.
2 PEUGH v. UNITED STATES
Opinion of the Court
When the Grainery began experiencing cash-flow prob-
lems, Peugh and Hollewell engaged in two fraudulent
schemes. First, they obtained a series of bank loans by
representing falsely the existence of contracts for future
grain deliveries from Agri-Tech to the Grainery. When
they failed to pay back the principal on these loans, the
bank suffered losses of over $2 million. Second, they ar-
tificially inflated the balances of accounts under their con-
trol by “check kiting,” or writing bad checks between their
accounts. This scheme allowed them to overdraw an
account by $471,000. They engaged in their illicit conduct
in 1999 and 2000.
When their acts were uncovered, Peugh and Hollewell
were charged with nine counts of bank fraud, in violation
of 18 U. S. C. §1344. While Hollewell pleaded guilty to
one count of check kiting, Peugh pleaded not guilty and
went to trial, where he testified that he had not intended
to defraud the banks. The jury found him guilty of five
counts of bank fraud and acquitted him of the remaining
counts.
At sentencing, Peugh argued that the Ex Post Facto
Clause required that he be sentenced under the 1998
version of the Federal Sentencing Guidelines in effect at
the time of his offenses, rather than under the 2009 ver-
sion in effect at the time of sentencing. The two versions
yielded significantly different results for Peugh’s applica-
ble Guidelines sentencing range. Under the 1998 Guide-
lines, Peugh’s base offense level was 6. United States
Sentencing Commission, Guidelines Manual §2F1.1 (Nov.
1998) (USSG). Thirteen levels were added for a loss
amount of over $2.5 million, ibid., and 2 levels for obstruc-
tion of justice because of Peugh’s perjury at trial, see
USSG §3C1.1 (Nov. 1998). The total offense level under
the 1998 Guidelines was therefore 19. As a first-time
offender, Peugh was in Criminal History Category I, and
so his sentencing range under the 1998 Guidelines was 30
Cite as: 569 U. S. ____ (2013) 3
Opinion of the Court
to 37 months. USSG, ch. 5, pt. A (Nov. 1998).
The 2009 Guidelines in effect when Peugh was sen-
tenced in May 2010 assigned more severe consequences to
his acts. First, the base offense level was raised from 6
to 7 for crimes, like Peugh’s, that have a statutory maxi-
mum term of imprisonment of 20 years or more. See USSG
§2B1.1 (Nov. 2009); 18 U. S. C. §1344. Second, the en-
hancement for a loss exceeding $2.5 million was 18, a
5-level increase from the 1998 Guidelines. USSG 2B1.1
(Nov. 2009). After adding the 2-level enhancement for
obstruction of justice, Peugh’s total offense level under the
2009 Guidelines was 27. With a Criminal History Cate-
gory of I, Peugh’s sentencing range rose under the 2009
Guidelines to 70 to 87 months. USSG, ch. 5, pt. A (Nov.
2009). The low end of the 2009 Guidelines range was 33
months higher than the high end of the 1998 Guidelines
range.
At the sentencing hearing, the District Court rejected
Peugh’s argument that applying the 2009 Guidelines vio-
lated the Ex Post Facto Clause, noting that it was fore-
closed by Seventh Circuit precedent. App. 30 (discussing
United States v. Demaree, 459 F. 3d 791 (2006)). The
District Court declined to give Peugh a downward vari-
ance, concluding that “a sentence within the [G]uideline[s]
range is the most appropriate sentence in this case,” App.
100. It sentenced Peugh to 70 months’ imprisonment,
ibid., the bottom of the 2009 Guidelines range.
The Seventh Circuit, in keeping with its decision in
Demaree, rejected Peugh’s ex post facto claim and affirmed
his conviction and sentence. 675 F. 3d 736 (2012). We
granted certiorari to resolve a conflict among the Courts of
Appeals over whether the Ex Post Facto Clause may be
violated when a defendant is sentenced under the version
of the Sentencing Guidelines in effect at the time of sen-
tencing rather than the version in effect at the time the
crime was committed, and the newer Guidelines yield a
4 PEUGH v. UNITED STATES
Opinion of the Court
higher applicable sentencing range.1 568 U. S. ___ (2012).
We now reverse.
II
Prior to 1984, the broad discretion of sentencing courts
and parole officers had led to significant sentencing dis-
parities among similarly situated offenders. To address
this problem, Congress created the United States Sentenc-
ing Commission. Mistretta v. United States, 488 U. S. 361,
362, 366–367 (1989). The Sentencing Reform Act of 1984,
98 Stat. 1987, eliminated parole in the federal system and
directed the Sentencing Commission to promulgate uni-
form guidelines that would be binding on federal courts at
sentencing. Mistretta, 488 U. S., at 367. The Commission
produced the now familiar Sentencing Guidelines: a sys-
tem under which a set of inputs specific to a given case
(the particular characteristics of the offense and offender)
yielded a predetermined output (a range of months within
which the defendant could be sentenced).
In United States v. Booker, 543 U. S. 220, 244 (2005),
however, this Court held that mandatory Guidelines ran
afoul of the Sixth Amendment by allowing judges to find
facts that increased the penalty for a crime beyond “the
maximum authorized by the facts established by a plea of
guilty or a jury verdict.” See also Apprendi v. New Jersey,
530 U. S. 466, 490 (2000). The appropriate remedy for
this violation, the Court determined, was to strike those
portions of the Sentencing Reform Act that rendered the
Guidelines mandatory. Booker, 543 U. S., at 245–258.
Under the resulting scheme, a district court is still re-
——————
1 Compare United States v. Demaree, 459 F. 3d 791, 795 (CA7 2006),
with United States v. Wetherald, 636 F. 3d 1315, 1321–1322 (CA11
2011); United States v. Ortiz, 621 F. 3d 82, 87 (CA2 2010); United
States v. Lewis, 606 F. 3d 193, 199–203 (CA4 2010); United States v.
Lanham, 617 F. 3d 873, 889–890 (CA6 2010); United States v. Turner,
548 F. 3d 1094, 1099–1100 (CADC 2008).
Cite as: 569 U. S. ____ (2013) 5
Opinion of the Court
quired to consult the Guidelines. See id., at 259–260, 264;
18 U. S. C. §3553(a)(4)(A). But the Guidelines are no
longer binding, and the district court must consider all of
the factors set forth in §3553(a) to guide its discretion at
sentencing, see Booker, 543 U. S., at 259–260, 264. The
Booker remedy, “while not the system Congress enacted,”
was designed to “continue to move sentencing in Congress’
preferred direction, helping to avoid excessive sentencing
disparities while maintaining flexibility sufficient to indi-
vidualize sentences where necessary.” Id., at 264–265.
Our subsequent decisions have clarified the role that
the Guidelines play in sentencing procedures, both at the
district court level and when sentences are reviewed on
appeal. First, “a district court should begin all sentencing
proceedings by correctly calculating the applicable Guide-
lines range. As a matter of administration and to secure
nationwide consistency, the Guidelines should be the
starting point and the initial benchmark.” Gall v. United
States, 552 U. S. 38, 49 (2007) (citation omitted). The
district court must then consider the arguments of the par-
ties and the factors set forth in §3553(a). Id., at 49–50.
The district court “may not presume that the Guidelines
range is reasonable,” id., at 50; and it “may in appropriate
cases impose a non-Guidelines sentence based on dis-
agreement with the [Sentencing] Commission’s views,” Pep-
per v. United States, 562 U. S. ___, ___ (2011) (slip op.,
at 23) (citing Kimbrough v. United States, 552 U. S. 85,
109–110 (2007)). The district court must explain the basis
for its chosen sentence on the record. Gall, 552 U. S., at
50. “[A] major departure [from the Guidelines] should be
supported by a more significant justification than a minor
one.” Ibid.On appeal, the district court’s sentence is reviewed for
reasonableness under an abuse-of-discretion standard.
See id., at 51; Booker, 543 U. S., at 261–264. Failure to
calculate the correct Guidelines range constitutes proce-
6 PEUGH v. UNITED STATES
Opinion of the Court
dural error, as does treating the Guidelines as mandatory.
Gall, 552 U. S., at 51. The court of appeals may, but is
not required to, presume that a within-Guidelines sentence
is reasonable. Rita v. United States, 551 U. S. 338, 347
(2007). The reviewing court may not apply a heightened
standard of review or a presumption of unreasonableness
to sentences outside the Guidelines range, although it
“will, of course, take into account the totality of the cir-
cumstances, including the extent of any variance from the
Guidelines range.” Gall, 552 U. S., at 49–51. We have in-
dicated that “a district court’s decision to vary from the
advisory Guidelines may attract greatest respect when” it
is based on the particular facts of a case. Kimbrough, 552
U. S., at 109.2 Overall, this system “requires a court to
give respectful consideration to the Guidelines,” but it
“permits the court to tailor the sentence in light of other
statutory concerns as well.” Id., at 101 (internal quotation
marks omitted).
Under 18 U. S. C. §3553(a)(4)(A)(ii), district courts are
instructed to apply the Sentencing Guidelines issued by
the United States Sentencing Commission that are “in
effect on the date the defendant is sentenced.” The Sen-
tencing Guidelines reiterate that statutory directive, with
the proviso that “[i]f the Court determines that use of the
Guidelines Manual in effect on the date that the defendant
is sentenced would violate the [E]x [P]ost [F]acto [C]lause
of the United States Constitution, the court shall use the
Guidelines Manual in effect on the date that the offense
of conviction was committed.” USSG §§1B1.11(a), (b)(1)
——————
2 We have left open the question whether “closer [appellate] review [of
a non-Guidelines sentence] may be in order when the sentencing judge
varies from the Guidelines based solely on the judge’s view that the
Guidelines range ‘fails properly to reflect §3553(a) considerations’ even
in a mine-run case.” Kimbrough, 552 U. S., at 109 (quoting Rita, 551
U. S., at 351). Resolution of this case does not require us to assess the
merits of this issue.
Cite as: 569 U. S. ____ (2013) 7
Opinion of the Court
(Nov. 2012). Whether the Ex Post Facto Clause was vio-
lated by the use of the more onerous Guidelines in effect
on the date of Peugh’s sentencing is the question pre-
sented here.
III
A
The Constitution prohibits both federal and state gov-
ernments from enacting any “ex post facto Law.” Art. I, §9,
cl. 3; Art. I, §10. The phrase “ ‘ex post facto law’ was a
term of art with an established meaning at the time of the
framing.” Collins v. Youngblood, 497 U. S. 37, 41 (1990).
In Calder v. Bull, Justice Chase reviewed the definition
that the term had acquired in English common law:
“1st. Every law that makes an action done before the
passing of the law, and which was innocent when
done, criminal; and punishes such action. 2d. Every
law that aggravates a crime, or makes it greater than
it was, when committed. 3d. Every law that changes
the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed.
4th. Every law that alters the legal rules of evidence,
and receives less, or different, testimony, than the law
required at the time of the commission of the offence,
in order to convict the offender.” 3 Dall., at 390 (em-
phasis deleted).
See also Carmell v. Texas, 529 U. S. 513, 521–525 (2000)
(discussing Calder v. Bull and the common-law under-
standing of the term). Building on Justice Chase’s formu-
lation of what constitutes an “ex post facto Law,” our cases
“have not attempted to precisely delimit the scope of this
Latin phrase, but have instead given it substance by an
accretion of case law.” Dobbert v. Florida, 432 U. S. 282,
292 (1977).
At issue here is Calder’s third category of ex post facto
8 PEUGH v. UNITED STATES
Opinion of the Court
laws, those that “chang[e] the punishment, and inflic[t] a
greater punishment, than the law annexed to the crime,
when committed.” 3 Dall., at 390. Peugh’s claim is that
the Clause was violated because the 2009 Guidelines call
for a greater punishment than attached to bank fraud in
2000, when his crimes were completed. The Government
counters that because the more punitive Guidelines ap-
plied at Peugh’s sentencing were only advisory, there was
no ex post facto problem.
Each of the parties can point to prior decisions of this
Court that lend support to its view. On the one hand, we
have never accepted the proposition that a law must in-
crease the maximum sentence for which a defendant is
eligible in order to violate the Ex Post Facto Clause. See,
e.g., Lindsey v. Washington, 301 U. S. 397 (1937). More-
over, the fact that the sentencing authority exercises some
measure of discretion will also not defeat an ex post facto
claim. See Garner v. Jones, 529 U. S. 244, 253 (2000). On
the other hand, we have made it clear that mere specula-
tion or conjecture that a change in law will retrospectively
increase the punishment for a crime will not suffice to
establish a violation of the Ex Post Facto Clause. See
California Dept. of Corrections v. Morales, 514 U. S. 499,
509 (1995). The touchstone of this Court’s inquiry is
whether a given change in law presents a “ ‘sufficient risk
of increasing the measure of punishment attached to the
covered crimes.’ ” Garner, 529 U. S., at 250 (quoting Mo-
rales, 514 U. S., at 509). The question when a change in
law creates such a risk is “a matter of degree”; the test
cannot be reduced to a “single formula.” Id., at 509 (inter-
nal quotation marks omitted).3
——————
3 JUSTICE THOMAS, raising the issue on his own initiative, would reject
our established Ex Post Facto Clause framework. Post, at 9–13. We
decline to revisit settled precedent, and we reject JUSTICE THOMAS’
assertion that our case law has become “unworkab[le],” post, at 9,
simply because it requires case-by-case judgments.
Cite as: 569 U. S. ____ (2013) 9
Opinion of the Court
B
The most relevant of our prior decisions for assessing
whether the requisite degree of risk is present here is
Miller v. Florida, 482 U. S. 423 (1987), in which this
Court considered an ex post facto challenge to a sentencing
guidelines scheme implemented by the State of Florida.
Under Florida’s system, a calculation under the guidelines
yielded a presumptive sentencing range. Id., at 426. This
range was assumed to be appropriate, and the sentencing
judge had discretion to fix a sentence within that range
“ ‘without the requirement of a written explanation.’ ”
Ibid. (quoting Fla. Rule Crim. Proc. 3.701(d)(8) (1983)).
If the court wished to depart from the guidelines range,
however, it was required to give “clear and convincing
reasons in writing for doing so.” 482 U. S., at 426. A
within-guidelines sentence was unreviewable; a non-
guidelines sentence was subject to appellate review. Ibid.The petitioner in Miller had been sentenced under new
guidelines that yielded a higher sentencing range than
the guidelines that had been in place at the time of his
crime, and he had received a sentence at the top of the new
range. Ibid. This Court found an ex post facto violation.
We emphasized that in order to impose the petitioner’s
sentence under the pre-existing guidelines, the sentenc-
ing judge would have been required to provide clear and
convincing reasons in writing for the departure, and the
sentence would then have been reviewable on appeal. Id.,
at 432. In contrast, because the sentence imposed was
within the new guidelines range, it required no explana-
tion and was unreviewable. Id., at 432–433. The fact that
Florida’s guidelines “create[d] a high hurdle that must be
cleared before discretion can be exercised” was sufficient
to render the changed guidelines an ex post facto law. Id.,
at 435.
Miller thus establishes that applying amended sentenc-
ing guidelines that increase a defendant’s recommended
10 PEUGH v. UNITED STATES
Opinion of the Court
sentence can violate the Ex Post Facto Clause, notwith-
standing the fact that sentencing courts possess discretion
to deviate from the recommended sentencing range. The
sentencing scheme in Miller was designed to channel sen-
tences for similarly situated offenders into a specified
range. Its reason-giving requirements and standards of
appellate review meant that while variation was possible,
it was burdensome; and so in the ordinary case, a defend-
ant would receive a within-guidelines sentence. Under the
Florida system, therefore, an increase in the guidelines
range applicable to an offender created a significant risk
that he would receive a higher sentence.4 The same prin-
ciples apply here.
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. See Kimbrough, 552 U. S., at 107. As we have
described, “district courts must begin their analysis with
the Guidelines and remain cognizant of them throughout
the sentencing process.” Gall, 552 U. S., at 50, n. 6 (em-
phasis added). Failing to calculate the correct Guidelines
range constitutes procedural error. Id., at 51. A district
court contemplating a non-Guidelines sentence “must con-
sider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the de-
gree of the variance.” Id., at 50. See also Pepper, 562
U. S., at ___ (BREYER, J., concurring in part and concur-
ring in judgment) (slip op., at 1) (“[T]he law permits the
——————
4 Miller employed a “substantial disadvantage” test that this Court
has since abandoned. See California Dept. of Corrections v. Morales,
514 U. S. 499, 506–507, n. 3 (1995). The relevant question is whether
the change in law creates a “ ‘sufficient’ ” or “significant” risk of increas-
ing the punishment for a given crime. Garner v. Jones, 529 U. S. 244,
250, 251 (2000). As we have made clear, however, the result in Miller
remains sound. See Morales, 514 U. S., at 506–507, n. 3.
Cite as: 569 U. S. ____ (2013) 11
Opinion of the Court
court to disregard the Guidelines only where it is ‘reason-
able’ for a court to do so” (citing Booker, 543 U. S., at261–262)).
These requirements mean that “[i]n the usual sentenc-
ing, . . . the judge will use the Guidelines range as the
starting point in the analysis and impose a sentence within
the range.” Freeman v. United States, 564 U. S. ___, ___
(2011) (plurality opinion) (slip op., at 5). Even if the sen-
tencing judge sees a reason to vary from the Guidelines, “if
the judge uses the sentencing range as the beginning point
to explain the decision to deviate from it, then the Guide-
lines are in a real sense the basis for the sentence.” Ibid.(emphasis added). See also id., at ___ (SOTOMAYOR, J.,
concurring in judgment) (slip op., at 2) (stating that out-
side the context of a Federal Rule of Criminal Procedure
11(c)(1)(C) plea agreement, “in the normal course the
district judge’s calculation of the Guidelines range appli-
cable to the charged offenses will serve as the basis for the
term of imprisonment imposed”). 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. Indeed, the rule that
an incorrect Guidelines calculation is procedural error en-
sures that they remain the starting point for every sen-
tencing calculation in the federal system.
Similarly, appellate review for reasonableness using the
Guidelines as a benchmark helps promote uniformity by
“tend[ing] to iron out sentencing differences.” Booker, 543
U. S., at 263. Courts of appeals may presume a within-
Guidelines sentence is reasonable, see Rita, 551 U. S.,
at 347, and they may further “consider the extent of the
deviation” from the Guidelines as part of their reason-
ableness review, Gall, 552 U. S., at 51. As in Miller, then,
the post-Booker sentencing regime puts in place proce-
dural “hurdle[s]” that, in practice, make the imposition of
a non-Guidelines sentence less likely. See 482 U. S., at 435.
12 PEUGH v. UNITED STATES
Opinion of the Court
This is a more difficult case than Miller, because there
are relevant differences between Florida’s sentencing
scheme and the current federal sentencing regime. The
Florida Legislature had made a within-guidelines sen-
tence unreviewable; whereas in the federal system, the
courts of appeals may—but are not required to—presume
that a within-Guidelines sentence is reasonable. And
under Florida’s scheme, a sentencing court departing from
the guideline range was required to provide “clear and
convincing” reasons for the departure; whereas this Court
has not, post-Booker, applied such an exacting across-the-
board standard of review to variances. Rather, we have
held that a district court varying from the Federal Guide-
lines should provide an explanation adequate to the extent
of the departure. See Gall, 552 U. S., at 51.
But contrary to the arguments advanced by the Gov-
ernment and JUSTICE THOMAS’ dissent (hereinafter dis-
sent), see Brief for United States 23–24; post, at 5–6,
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 sentenc-
ing courts that cabin the exercise of that discretion.
Common sense indicates that in general, this system will
steer district courts to more within-Guidelines sentences.
Peugh points to considerable empirical evidence indicat-
ing 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 Gov-
ernment’s motion. See United States Sentencing Commis-
sion, 2011 Sourcebook of Federal Sentencing Statistics,
p. 63 (Figure G) (16th ed.) (USSC). In less than one-fifth
of cases since 2007 have district courts imposed above- or
Cite as: 569 U. S. ____ (2013) 13
Opinion of the Court
Opinion of SOTOMAYOR, J.
below-Guidelines sentences absent a Government motion.
See ibid. See also Baron-Evans & Stith, Booker Rules,
160 U. Pa. L. Rev. 1631, 1677 (2012). Moreover, the Sen-
tencing Commission’s data indicate that when a Guide-
lines range moves up or down, offenders’ sentences move
with it. See USSC, Final Quarterly Data Report, FY 2012,
p. 32 (Figure C); USSC, Report on the Continuing Impact
of United States v. Booker on Federal Sentencing, Pt. A,
pp. 60–68 (2012).5
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 sen-
tence to constitute an ex post facto violation.
C
Our holding today is consistent with basic principles of
fairness that animate the Ex Post Facto Clause. The
Framers considered ex post facto laws to be “contrary to
the first principles of the social compact and to every
principle of sound legislation.” The Federalist No. 44,
p. 282 (C. Rossiter ed. 1961) (J. Madison). The Clause
ensures that individuals have fair warning of applicable
laws and guards against vindictive legislative action. See
Weaver v. Graham, 450 U. S. 24, 28–29 (1981); see also
post, at 11–13. Even where these concerns are not directly
implicated, however, the Clause also safeguards “a fun-
damental fairness interest . . . in having the government
abide by the rules of law it establishes to govern the cir-
——————
5 The Government does not dispute these statistics. It argues instead
that by relying on aggregated data, Peugh glosses over the fact that
non-Guidelines sentences are more common for certain crimes and that
some individual judges are less likely to follow the Guidelines than
others. Brief for United States 49–50. But these arguments do not
refute the basic point that the applicable Guidelines channel sentences
toward the specified range, even if they do not fix them within it.
14 PEUGH v. UNITED STATES
Opinion of the Court
Opinion of SOTOMAYOR, J.
cumstances under which it can deprive a person of his or
her liberty or life.” Carmell, 529 U. S., at 533.
The Sentencing Guidelines represent the Federal Gov-
ernment’s authoritative view of the appropriate sentences
for specific crimes. When Peugh committed his crime,
the recommended sentence was 30 to 37 months. When he
was sentenced, it was 70 to 87 months. “[T]he purpose
and effect of the change in [the Guidelines calculation]
was to increase the rates and length of incarceration for
[fraud].” Miller, 482 U. S., at 431 (citing Florida Bar:
Amendment to Rules of Criminal Procedure (3.701, 3.988—
Sentencing Guidelines), 451 So. 2d 824, 824, n. (1984) ( per
curiam) (internal quotation marks and alterations omit-
ted)). Such a retrospective increase in the measure of
punishment raises clear ex post facto concerns. We have
previously recognized, for instance, that a defendant
charged with an increased punishment for his crime is
likely to feel enhanced pressure to plead guilty. See
Carmell, 529 U. S., at 534, n. 24; Weaver, 450 U. S., at
32. This pressure does not disappear simply because the
Guidelines range is advisory; the defendant will be aware
that the range is intended to, and usually does, exert
controlling influence on the sentence that the court will
impose.
We are therefore not persuaded by the argument ad-
vanced by the Government and also suggested by the
dissent that the animating principles of the Ex Post Facto
Clause are not implicated by this case. While the Gov-
ernment argues that the Sentencing Commission is insu-
lated from legislative interference, see Brief for United
States 42–44, our precedents make clear that the coverage
of the Ex Post Facto Clause is not limited to legislative
acts, see Garner, 529 U. S., at 247, 257 (recognizing that a
change in a parole board’s rules could, given an adequate
showing, run afoul of the Ex Post Facto Clause). It is true
that we held, in Irizarry v. United States, 553 U. S. 708,
Cite as: 569 U. S. ____ (2013) 15
Opinion of the Court
713–714 (2008), that a defendant does not have an “expec-
tation subject to due process protection” that he will be
sentenced within the Guidelines range. But, contrary to
the dissent’s view, see post, at 11–13, the Ex Post Facto
Clause does not merely protect reliance interests. It also
reflects principles of “fundamental justice.” Carmell, 529
U. S., at 531.6
IV
The Government’s principal argument that there is no
constitutional violation in this case is that the Sentencing
Guidelines lack sufficient legal effect to attain the sta-
tus of a “law” within the meaning of the Ex Post Facto
Clause. Whereas the pre-Booker Guidelines “ha[d] the force
and effect of laws,” Booker, 543 U. S., at 234, the post-
Booker Guidelines, the Government contends, have lost that
status due to their advisory nature. The dissent echoes
this argument. Post, at 1–3, 6–8.
The distinction that the Government draws is necessar-
ily a fine one, because our precedents firmly establish that
changes in law need not bind a sentencing authority in
order to violate the Ex Post Facto Clause. So, for example,
a law can run afoul of the Clause even if it does not alter
the statutory maximum punishment attached to a crime.
In Lindsey v. Washington, 301 U. S. 397, this Court con-
sidered an ex post facto challenge to a Washington law
altering the statutory penalty for grand larceny from a
range of 0 to 15 years’ imprisonment to a mandatory term
of 15 years’ imprisonment. Although the upper boundary
of the sentencing court’s power to punish remained un-
changed, it was enough that the petitioners were “de-
prived of all opportunity to receive a sentence which would
——————
6 Ofcourse, “while the principle of unfairness helps explain and shape
the Clause’s scope, it is not a doctrine unto itself, invalidating laws
under the Ex Post Facto Clause by its own force.” Carmell, 529 U. S., at
533, n. 23.
16 PEUGH v. UNITED STATES
Opinion of the Court
give them freedom from custody and control prior to the
expiration of the 15-year term.” Id., at 402 (emphasis
added).
In addition, our cases make clear that “[t]he presence of
discretion does not displace the protections of the Ex Post
Facto Clause.” Garner, 529 U. S., at 253. In a series of
cases, for example, this Court has considered the validity
under the Ex Post Facto Clause of state laws altering the
terms on which discretionary parole or early release was
available to prisoners. See Garner, 529 U. S. 244; Mo-
rales, 514 U. S. 499; Weaver, 450 U. S. 24. Although these
cases reached differing conclusions with respect to whether
there was an ex post facto violation, in none of them did
we indicate that the mere fact that the prisoner was not
guaranteed parole but rather received it at the will of the
parole board was fatal to his claim. See Garner, 529 U. S.,
at 253; Morales, 514 U. S., at 508–510, and n. 6; Weaver,
450 U. S., at 30–31.
The Government does not challenge these holdings but
rather argues, in essence, that the Guidelines are too much
like guideposts and not enough like fences to give rise
to an ex post facto violation. It contrasts the Sentenc-
ing Guidelines with the Florida system at issue in Miller,
which, the Government indicates, really did place “a sub-
stantial legislative constraint on the judge’s exercise of
sentencing discretion.” Brief for United States 21. But as
we have explained at length, the difference between the
federal system and the scheme the Court considered in
Miller is one in degree, not in kind. The Florida system
did not achieve its “binding legal effect,” Brief for United
States 22, by mandating a within-guidelines sentence in
every case. Rather, it achieved its “binding legal effect”
through a set of procedural rules and standards for appel-
late review that, in combination, encouraged district
courts to sentence within the guidelines. See Miller, 482
U. S., at 432–433. We have detailed all of the ways in
Cite as: 569 U. S. ____ (2013) 17
Opinion of the Court
which the federal sentencing regime after Booker does the
same.7
The Government elaborates its argument that the Sen-
tencing Guidelines do not have adequate legal force to
constitute an ex post facto violation by reviewing the vari-
ous features of the post-Booker sentencing regime that, in
its view, tend to render the Guidelines purely advisory.
As we have noted, district courts may not presume that
a within-Guidelines sentence is reasonable; they may “in
appropriate cases impose a non-Guidelines sentence based
on a disagreement with the Commission’s views,” Pepper,
562 U. S., at ___ (slip op., at 23); and all sentences are
reviewed under a deferential abuse-of-discretion standard.
See supra, at 5–6.
While the Government accurately describes several
attributes of federal sentencing after Booker, the conclu-
sion it draws by isolating these features of the system is
ultimately not supportable. On the Government’s account,
the Guidelines are just one among many persuasive
sources a sentencing court can consult, no different from
a “policy paper.” Brief for United States 28. The Govern-
ment’s argument fails to acknowledge, however, that
district courts are not required to consult any policy paper
in order to avoid reversible procedural error; nor must
they “consider the extent of [their] deviation” from a given
——————
7 The Government likens the Sentencing Guidelines system to the
Parole Commission’s Parole Release Guidelines, which established an
advisory framework for parole decisions, see United States Parole
Comm’n v. Geraghty, 445 U. S. 388, 391 (1980), and argues that Miller
indicated that retrospectively applying more stringent parole guidelines
would not have constituted an ex post facto violation. The issue of
the constitutional validity of the retrospective application of the parole
guidelines, however, was not before the Court in Miller. While the
Miller Court did state that lower court cases discussing the federal
parole guidelines were “inapposite” to its discussion of the Florida
guidelines, 482 U. S., at 434–435, it had no occasion to address whether
changes to the parole guidelines generated an ex post facto problem.
18 PEUGH v. UNITED STATES
Opinion of the Court
policy paper and “ensure that the justification is suffi-
ciently compelling to support the degree of the variance,”
Gall, 552 U. S., at 50. Courts of appeals, in turn, are not
permitted to presume that a sentence that comports with
a particular policy paper is reasonable; nor do courts of
appeals, in considering whether the district court’s sen-
tence was reasonable, weigh the extent of any departure
from a given policy paper in determining whether the
district court abused its discretion, see id., at 51. It is
simply not the case that the Sentencing Guidelines are
merely a volume that the district court reads with aca-
demic interest in the course of sentencing.
Of course, as the Government and the dissent point out,
notwithstanding a rule that retrospective application of a
higher Guidelines range violates the Ex Post Facto Clause,
sentencing courts will be free to give careful consideration
to the current version of the Guidelines as representing
the most recent views of the agency charged by Congress
with developing sentencing policy. See post, at 8 (citing
Demaree, 459 F. 3d, at 795). But this does not render our
holding “purely semantic.” Id., at 795. District courts
must begin their sentencing analysis with the Guidelines
in effect at the time of the offense and use them to calcu-
late the sentencing range correctly; and those Guidelines
will anchor both the district court’s discretion and the
appellate review process in all of the ways we have de-
scribed. The newer Guidelines, meanwhile, will have the
status of one of many reasons a district court might give
for deviating from the older Guidelines, a status that is
simply not equivalent for ex post facto purposes.
Finally, the Government contends that a rule that the
Ex Post Facto Clause is violated by the application of an
increased Guidelines range would be in tension with this
Court’s post-Booker cases and, indeed, would “largely undo
. . . the Booker remedy” for the Sixth Amendment violation
found there. Brief for United States 35. If the Guidelines
Cite as: 569 U. S. ____ (2013) 19
Opinion of the Court
are binding enough to trigger an ex post facto violation, the
argument goes, then they must be binding enough to
trigger a Sixth Amendment violation as well. The Gov-
ernment’s argument assumes that the Sixth Amendment
and the Ex Post Facto Clause share a common boundary;
that only where judge-found facts are the basis of a higher
sentence in a manner that raises Sixth Amendment con-
cerns can a set of sentencing rules be sufficiently determi-
nate to run afoul of the Ex Post Facto Clause. But the
Sixth Amendment and Ex Post Facto Clause inquiries are
analytically distinct. Our Sixth Amendment cases have
focused on when a given finding of fact is required to make
a defendant legally eligible for a more severe penalty. Our
ex post facto cases, in contrast, have focused on whether a
change in law creates a “significant risk” of a higher sen-
tence; here, whether a sentence in conformity with the
new Guidelines is substantially likely. The Booker remedy
was designed, and has been subsequently calibrated, to
exploit precisely this distinction: it is intended to promote
sentencing uniformity while avoiding a Sixth Amendment
violation. In light of the statistics invoked by petitioner,
see supra, at 12–13, it appears so far to be achieving this
balance. Nothing that we say today “undo[es]” the hold-
ings of Booker, Rita, Gall, Kimbrough, or our other recent
sentencing cases.
* * *
The arguments put forward by the Government and the
dissent cannot unseat the conclusion that Peugh’s case
falls within Calder’s third category of ex post facto viola-
tions. “[T]he Ex Post Facto Clause forbids the [govern-
ment] to enhance the measure of punishment by altering
the substantive ‘formula’ used to calculate the applicable
sentencing range.” Morales, 514 U. S., at 505. That is
precisely what the amended Guidelines did here. Doing so
20 PEUGH v. UNITED STATES
Opinion of the Court
created a “significant risk” of a higher sentence for Peugh,
Garner, 529 U. S., at 251, and offended “one of the princi-
pal interests that the Ex Post Facto Clause was designed
to serve, fundamental justice,” Carmell, 529 U. S., at 531.8
For these reasons, we reverse the judgment of the Seventh
Circuit and remand the case for further proceedings con-
sistent with this opinion.
It is so ordered.
——————
8 There may be cases in which the record makes clear that the Dis-
trict Court would have imposed the same sentence under the older,
more lenient Guidelines that it imposed under the newer, more puni-
tive ones. In such a case, the ex post facto error may be harmless. See
Chapman v. California, 386 U. S. 18 (1967). Here, however, the Gov-
ernment does not argue that any ex post facto violation was harmless.
And indeed, any such argument would fail in light of the fact that the
District Court rejected Peugh’s ex post facto claim in keeping with
Circuit precedent, applied the new Guidelines, and indicated at sen-
tencing that “a sentence within the [G]uideline range is the most
appropriate sentence in this case.” App. 30, 100.
Cite as: 569 U. S. ____ (2013) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–62
_________________
MARVIN PEUGH, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 10, 2013]
JUSTICE THOMAS, with whom the CHIEF JUSTICE, JUS-
TICE SCALIA, and JUSTICE ALITO join as to Parts I and II–C,
dissenting.
The Constitution prohibits Congress from passing ex
post facto laws. Art. I, §9, cl. 3. The retroactive applica-
tion of the 2009 Guidelines did not alter the punishment
affixed to petitioner’s crime and does not violate this pro-
scription. I would affirm the Seventh Circuit’s decision
denying petitioner’s ex post facto claim. Therefore, I re-
spectfully dissent.
I
It is well established that an ex post facto law includes
“[e]very law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime,
when committed.” Calder v. Bull, 3 Dall. 386, 390 (1798)
(opinion of Chase, J.). Under our precedents, the relevant
inquiry for determining whether a law “inflicts a greater
punishment,” is whether the “retroactive application of
the change in [the] law created ‘a sufficient risk of increas-
ing the measure of punishment attached to the covered
crimes.’ ” Garner v. Jones, 529 U. S. 244, 250 (2000) (quot-
ing California Dept. of Corrections v. Morales, 514 U. S.
499, 509 (1995)). The retroactive application of subse-
quently amended Guidelines does not create a “sufficient
risk” of increasing a defendant’s punishment for two rea-
2 PEUGH v. UNITED STATES
THOMAS, J., dissenting
sons. First, the Guidelines do not constrain the discretion
of district courts and, thus, have no legal effect on a de-
fendant’s sentence. Second, to the extent that the amended
Guidelines create a risk that a defendant might receive
a harsher punishment, that risk results from the Guide-
lines’ persuasive force, not any legal effect. The Guide-
lines help district judges to impose sentences that comply
with §3553(a). The risk of an increased sentence is, in
essence, the risk of a more accurate sentence—i.e., a sen-
tence more in line with the statutory scheme’s penological
goals. Guideline changes that help district courts achieve
such pre-existing statutory sentencing goals do not create
a risk of an increased sentence cognizable under the Ex
Post Facto Clause. We have never held that government
action violates the Ex Post Facto Clause when it merely
influences the exercise of the sentencing judge’s discretion.
A
The Federal Sentencing Guidelines do not constrain the
discretion of district courts. As we have said repeatedly,
the Guidelines are “advisory.” United States v. Booker,
543 U. S. 220, 245 (2005) (remedial opinion for the Court
by BREYER, J.). For this reason, district courts may not
“presume” that a within-Guidelines sentence is appropri-
ate. Gall v. United States, 552 U. S. 38, 50 (2007); see also
Nelson v. United States, 555 U. S. 350, 352 (2009) ( per
curiam) (the Guidelines range is “not to be presumed
reasonable”); Rita v. United States, 551 U. S. 338, 351
(2007) (“[T]he sentencing court does not enjoy the benefit
of a legal presumption that the Guidelines sentence should
apply”). Rather, district courts must “make an individual-
ized assessment” of the appropriate sentence “based on the
facts presented.” Gall, supra, at 50. Moreover, a district
court may freely depart from the range recommended by
the Guidelines based not only on “an individualized de-
termination that [the Guidelines] yield an excessive sen-
Cite as: 569 U. S. ____ (2013) 3
THOMAS, J., dissenting
tence in a particular case,” but also based on “policy dis-
agreement” with the Guidelines themselves. Spears v.
United States, 555 U. S. 261, 264 (2009) (per curiam); see
Pepper v. United States, 562 U. S. ___, ___ (2011) (slip
op., at 23) (“[O]ur post-Booker decisions make clear that
a district court may in appropriate cases impose a non-
Guidelines sentence based on a disagreement with the
Commission’s views”).
It is true that a district judge who “decides that an
outside-Guidelines sentence is warranted” must “ensure
that the justification is sufficiently compelling to support
the degree of the variance” and that “a major departure
should be supported by a more significant justification
than a minor one.” Gall, 552 U. S., at 50. This does not
demonstrate that the Guidelines constrain the judge’s dis-
cretion, but rather comports with the notion that an ex-
planation is essential for “meaningful appellate review.”
Ibid. And, when a district court departs from the recom-
mended range, the court of appeals may not presume that
such a sentence is unreasonable. Id., at 47; id., at 41
(“[C]ourts of appeals must review all sentences—whether
inside, just outside, or significantly outside the Guidelines
range—under a deferential abuse-of-discretion standard”).
While “[t]he applicable guideline [may] nudg[e] [the sen-
tencing judge] toward the sentencing range,” “his freedom
to impose a reasonable sentence outside the range is un-
fettered.” United States v. Demaree, 459 F. 3d 791, 795
(CA7 2006).
None of petitioner’s arguments to the contrary is per-
suasive. Petitioner first contends that the Guidelines
constrain district courts’ discretion because improperly
calculating the applicable guidelines is reversible error.
Brief for Petitioner 20–21, and n. 7; 18 U. S. C. §3742(f);
Cf. Gall, 552 U. S., at 51. This argument is a non sequi-
tur. The Guidelines can only serve their advisory purpose
if district courts consider the “range established” by the
4 PEUGH v. UNITED STATES
THOMAS, J., dissenting
Guidelines, §3553(a)(4). For this reason, district courts
must “begin all sentencing proceedings by correctly calcu-
lating the applicable Guidelines range.” Id., at 49. But
the fact that courts must give due consideration to the
recommendation expressed in the correct Guidelines does
not mean that the Guidelines constrain the district court’s
discretion to impose an appropriate sentence; it simply
means that district courts must consider the correct vari-
ables before exercising their discretion.
Petitioner next argues that the Guidelines limit district
court discretion because sentences falling outside the
Guidelines are more likely to be reversed for substantive
unreasonableness. Brief for Petitioner 25. I doubt, how-
ever, 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 dis-
trict 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 un-
der the old Guidelines. Similarly, it is hard to imagine
that a court of appeals would reverse a sentence for sub-
stantive unreasonableness if it was above the range of the
Guidelines in effect at the time of the offense but fell
within the range of the most up-to-date Guidelines. This
case provides an apt example. After considering all of
the §3553(a)(2) factors, the District Court concluded that
a sentence within the amended Guidelines range was “the
most appropriate sentence in this case.” App. 100. The
same sentence would undoubtedly be upheld on appeal if
the District Court, on remand, once again determined that
a sentence within the amended Guidelines was appropri-
ate in light of all the facts. The essential point is that once
new Guidelines have been promulgated, reasonableness
Cite as: 569 U. S. ____ (2013) 5
THOMAS, J., dissenting
review does not meaningfully constrain the discretion of
district courts to sentence offenders within either of the
two ranges.
The majority argues that our opinion in Miller v. Flor-
ida, 482 U. S. 423 (1987), supports its conclusion that
retroactive application of advisory Guidelines violates the
Ex Post Facto Clause. See ante, at 9–10. But Miller leads
to the opposite conclusion. There, Florida superimposed
narrowed presumptive sentencing ranges on the statutory
sentencing ranges for particular crimes. 482 U. S., at425–426. If a judge imposed a sentence within that nar-
rower presumptive range, he did not need to give a written
explanation of his reasons for selecting that sentence, and
the sentence was not subject to appellate review. Ibid. If
the judge imposed a sentence outside the presumptive
range, however, he was required to provide “ ‘clear and
convincing reasons,’ ” id., at 426 (quoting Fla. Rule Crim.
Proc. 3.701(d)(11) (1983)), based “on facts proved beyond a
reasonable doubt,” that justified the departure, 482 U. S.,
at 432. In concluding that retroactive application of this
scheme violated the Ex Post Facto Clause, we reasoned
that the Florida guidelines did not “simply provide flexible
‘guideposts’ for use in the exercise of discretion: instead,
they create[d] a high hurdle that must be cleared before
discretion c[ould] be exercised.” Id., at 435.
The Court cites Miller for the proposition “that applying
amended sentencing guidelines that increase a defend-
ant’s recommended sentence can violate the Ex Post Facto
Clause, notwithstanding the fact that sentencing courts
possess discretion to deviate from the recommended sen-
tencing range.” Ante, at 10. But that claim is not sup-
ported by Miller. The guidelines in Miller violated the Ex
Post Facto Clause precisely because they constrained the
sentencing judge’s discretion.
The Federal Guidelines, by contrast, do no such thing.
Indeed, our post-Booker opinions have made abundantly
6 PEUGH v. UNITED STATES
THOMAS, J., dissenting
clear that the Guidelines do not create a “high hurdle”—
or any hurdle at all—“that must be cleared before discre-
tion can be exercised.” Miller, 482 U. S., at 435. Rather,
the Guidelines are “flexible ‘guideposts’ ” which inform the
district courts’ discretion. Ibid. Accordingly, their retro-
active application cannot constitute a violation of the Ex
Post Facto Clause.
B
Notwithstanding the discretion district courts have to
impose appropriate sentences anywhere within the statu-
tory range, Guidelines do “influenc[e] the sentences im-
posed by judges.” Ante, at 12. But, the Guidelines do this
by helping district courts impose sentences that are con-
sistent with §3553(a). It is difficult to see how an advi-
sory 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.
District courts are charged with imposing sentences that
are “ ‘sufficient, but not greater than necessary’ to comply
with the sentencing purposes set forth in” §3553(a). Pep-
per, 562 U. S., at ___ (slip op., at 13) (quoting §3553(a)).
The district court’s task is to impose sentences that reflect
the punitive goals of justice, deterrence, protection of the
public, and rehabilitation. 18 U. S. C. §3553(a)(2). While
easily stated, this goal is difficult to achieve. Enter the
Sentencing Guidelines.
The Sentencing Reform Act of 1984 instructs the Sen-
tencing Commission to promulgate Guidelines that reflect
the “same basic §3553(a) objectives” that district courts
must consider. Rita, 551 U. S., at 348; see also 28 U. S. C.
§991(b)(1)(A). In crafting the Guidelines, the Commission
began with “an empirical examination of 10,000 presen-
tence reports setting forth what judges had done in the
past.” Rita, supra, at 349 (citing United States Sentencing
Cite as: 569 U. S. ____ (2013) 7
THOMAS, J., dissenting
Commission, Guidelines Manual §1A1.1, comment., n. 3
(Nov. 2006) (USSG)). The Commission then “modif[ied]
and adjust[ed] past practice in the interests of greater
rationality, avoiding inconsistency, complying with con-
gressional instructions, and the like.” Rita, supra, at 349.
While an individual judge has limited experience upon
which to draw, the Commission “has the capacity . . . to
base its determinations on empirical data and national
experience, guided by a professional staff with appropriate
expertise.” Kimbrough v. United States, 552 U. S. 85, 109
(2007) (internal quotation marks omitted). And the Com-
mission updates the Guidelines regularly as new infor-
mation becomes available. It consults with “prosecutors,
defenders, law enforcement groups, civil liberties associa-
tions, experts in penology, and others,” to ensure that the
Guidelines continue to further §3553(a)’s goals. Rita,
supra, at 350; see also Booker, 543 U. S., at 263 (noting
that the Commission would “modify its Guidelines in light
of what it learns, thereby encouraging what it finds to be
better sentencing practices”).
In light of this extensive study, amendments to the
Guidelines should produce sentencing ranges that better
comport with the §3553(a) factors. If the Commission has
fulfilled its mission of recommending sentences that are
generally consistent with §3553(a)(2), then sentences
should fall within the Guidelines range most of the time.
This, in part, explains why within-Guidelines sentences
are presumed, on appeal, to reflect a “discretionary deci-
sion” by the district court that “accords with the Commis-
sion’s view.” Rita, supra, at 351.
Again, this case furnishes a ready example. Prior to pe-
titioner’s sentencing, Congress directed the Commission
“to consider” whether fraud guidelines were “ ‘sufficient to
deter and punish’ ” particular offenses, in light of increases
to statutory maximum penalties for certain fraud crimes
other than bank fraud. USSG App. C, Amdt. 653 (Reason
8 PEUGH v. UNITED STATES
THOMAS, J., dissenting
for Amendment) (effective Nov. 1, 2003) (quoting White-
Collar Crime Penalty Enhancement Act of 2002,
§905(b)(2), 116 Stat. 805). This produced amended Guide-
lines, which were based on the Commission’s further
assessment of “economic crime issues over a number of
years.” USSG App. C, Amdt. 617 (Reason for Amendment)
(effective Nov. 1, 2001). With an amended Guidelines
sentencing range, the District Court concluded that a
within-Guidelines sentence was “the most appropriate
sentence.” App. 100. Neither the statutory sentencing
range nor §3553(a) changed between the time of petition-
er’s offense and sentencing. Thus, it is quite incorrect to
say that reliance on information reflected in the amended
Guidelines violated the Ex Post Facto Clause.
This is underscored by the fact that even the Court’s
holding—which requires district courts to calculate the
Guidelines range in effect at the time of the offense—will
not eliminate the “risk” of a higher sentence. The district
judge remains free to consider the range produced by the
amended Guidelines. See Demaree, 459 F. 3d, at 795 (“A
judge is certainly entitled to take advice from the Sentenc-
ing Commission”). Thus, the mere fact that new Guide-
lines have been promulgated creates some risk of an
increased sentence, even if district courts are required to
calculate the Guidelines in effect at the time of the offense.
Petitioner has presented no evidence indicating what
portion of the risk of an increased sentence flows from the
retroactive application of the amended Guidelines and
what portion flows from their very existence. In the ab-
sence of such evidence, even if I agreed that advisory
Guidelines could be ex post facto laws, which I do not,
I would not find the “risk” of an increased sentence created
by the retroactive application of the Guidelines to be “suf-
ficient” for ex post facto purposes.
Cite as: 569 U. S. ____ (2013) 9
THOMAS, J., dissenting
II
Today’s opinion also demonstrates the unworkability of
our ex post facto jurisprudence. Under our current prece-
dent, whenever a change in the law creates a “risk” of an
increased sentence, we must determine whether the risk is
“sufficient,” see Morales, 514 U. S., at 509, or sufficiently
“ ‘significant,’ ” see ante, at 19, to violate the Ex Post Facto
Clause. Our analysis under that test has devolved into
little more than an exercise in judicial intuition. I would
return to the original meaning of the Clause as stated in
Justice Chase’s classic Calder formulation, under which
laws of this sort are ex post facto only when they retro-
actively increase the punishment “annexed to the crime.”
3 Dall., at 390.
A
This Court addressed the Ex Post Facto Clause a mere
decade after the Constitution was ratified. In Calder,
Justice Chase described four types of ex post facto laws. 3
Dall., at 390. As relevant, Justice Chase’s third category
indicated that “[e]very law that changes the punishment,
and inflicts a greater punishment, than the law annexed
to the crime, when committed” violates the Ex Post Facto
Clause. Ibid. Justice Chase’s emphasis on increases
in the punishment “annexed to the crime” was grounded
in the English common law and accurately reflected the
original understanding of the Ex Post Facto Clause. See
Part II–B, infra. Unfortunately, the Court rapidly deviated
from this formulation. In Kring v. Missouri, 107 U. S.
221 (1883), the Court declared that “any law passed after
the commission of an offence which . . . ‘in relation to that
offence, or its consequences, alters the situation of a party
to his disadvantage,’ is an ex post facto law.” Id., at 235(quoting Justice Washington’s jury charge in United States
v. Hall, 26 F. Cas. 84, 86 (No. 15,285) (CC Pa. 1809) (em-
phasis added). It took nearly a century for the Court to
10 PEUGH v. UNITED STATES
THOMAS, J., dissenting
decide that Kring’s “departure from Calder’s explanation
of the original understanding of the Ex Post Facto Clause
was . . . unjustified.” Collins v. Youngblood, 497 U. S. 37,
49 (1990) (overruling Kring).
Following Collins’ disavowal of Kring, the Court held
that a law is ex post facto if it “produces a sufficient risk
of increasing the measure of punishment attached to the
covered crimes.” Morales, supra, at 509. While Morales
avoided the over-breadth of Kring’s “disadvantage the de-
fendant” test, it failed to reconnect our ex post facto ju-
risprudence to the original understanding of the term.
The “sufficient risk” test also depends upon empirical
analysis that cannot yield determinative answers and
which courts are ill equipped to handle. See, e.g., Gar-
ner, 529 U. S., at 255 (“When the rule does not by its
own terms show a significant risk, the respondent must
demonstrate, by evidence drawn from the rule’s practical
implementation by the agency charged with exercising
discretion, that its retroactive application will result in
a longer period of incarceration than under the earlier
rule”). More fundamentally, the “sufficient risk” test, like
the “disadvantage the defendant” test, wrongly focuses on
the particular sentence that the defendant might receive,
rather than on the punishment “annexed to the crime.”
The practical difficulties with the test are apparent even
from our application in Morales, where we considered an
amendment to California’s parole procedures that allowed,
under certain circumstances, the Board of Prison Terms to
decrease the frequency of parole suitability hearings.
Under the sufficient risk test, we were compelled to specu-
late about the possible effects of the new law on various
individuals’ prison terms. Ultimately, we held that the
amendment did not violate the Ex Post Facto Clause be-
——————
* As the author of Morales, failure to apply the original meaning was
an error to which I succumbed.
Cite as: 569 U. S. ____ (2013) 11
THOMAS, J., dissenting
cause the “narrow class of prisoners covered by the
amendment [could not] reasonably expect that their pro-
spects for early release on parole would be enhanced by
the opportunity of annual hearings.” Morales, supra, at
512. But nothing in the text or history of the Ex Post
Facto Clause suggests that it should hinge on the expecta-
tions that prisoners and defendants have about how many
days they will spend in prison.
B
“Although the Latin phrase ‘ex post facto’ literally en-
compasses any law passed ‘after the fact,’ ” Collins, 497
U. S., at 41, the Court has long recognized that the phrase
“was a term of art with an established meaning” at the
time of the founding. Ibid. Blackstone offers the first key
to understanding this “established meaning.” He explic-
itly opposed laws that rendered innocent conduct crimi-
nal after the fact. See 1 W. Blackstone, Commentaries *44
(hereinafter Blackstone). Such laws deprive citizens of
notice and fair warning and are, therefore, an affront to
man’s “reason and freewill.” Id., at *39; see id., at *46.
Blackstone, thus, considered them illegitimate. Id., at
*44; see also The Federalist No. 44, p. 301 (J. Cooke ed.
1961) (J. Madison) (“[E]x post facto laws . . . are contrary
to the first principles of the social compact, and to every
principle of sound legislation”). For this reason, ex post
facto laws have rightly been described as “formidable
instruments of tyranny,” id., No. 84, at 577 (A. Hamilton),
and their prohibition a “bulwark in favour of the personal
security of the subject,” Calder, supra, at 390 (opinion of
Chase, J.).
Although Blackstone confined his discussion of ex post
facto laws to those laws retroactively declaring innocent
acts to be criminal, other authorities confirm that laws
retroactively increasing the punishment were also under-
stood to be ex post facto at the time of the founding. See,
12 PEUGH v. UNITED STATES
THOMAS, J., dissenting
e.g., 2 R. Wooddeson, A Systematical View of the Laws of
England, as treated in a Course of Vinerian Lectures 638
(1792) (discussing “acts of parliament, which principally
affect the punishment, making therein some innovation, or
creating some forfeiture or disability, not incurred in the
ordinary course of law”); 3 J. Story, Commentaries on the
Constitution of the United States §679, p. 486 (Abr. 1833)
(The “prohibition” against ex post facto laws “reaches every
law . . . whereby the act, if a crime, is aggravated in enor-
mity, or punishment”). Justice Chase’s formulation re-
flects this understanding. Calder, 3 Dall., at 390 (“Every
law that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when
committed” is ex post facto). Under this view, courts must
compare the punishment affixed to the crime at the time
of the offense with the punishment affixed at the time of
sentencing. If the latter is harsher than the former, the
court must apply the punishment in effect at the time of
the offense.
At common law, it was quite easy to identify when a law
retroactively increased the punishment, because the crim-
inal law generally “prescribed a particular sentence for
each offense.” Langbein, The English Criminal Trial Jury
on the Eve of the French Revolution, in The Trial Jury in
England, France, Germany 1700–1900, p. 36 (A. Schioppa
ed. 1987). In a world of determinate sentencing, a retro-
active increase in the punishment affixed to a crime rend-
ers an act “punishable in a manner in which it was not
punishable when it was committed,” Fletcher v. Peck, 6
Cranch 87, 138 (1810), which is sufficient for an ex post
facto violation. The key point is that “the ex post facto
[C]lause looks to the standard of punishment prescribed
by a statute, rather than to the sentence actually im-
posed.” Lindsey v. Washington, 301 U. S. 397, 401 (1937).
Focusing on the punishment affixed by law, rather than
on the specific sentence imposed, furthers the goals of
Cite as: 569 U. S. ____ (2013) 13
THOMAS, J., dissenting
notice and fair warning recognized by Blackstone as the
rationales for the prohibition against ex post facto laws.
See Ross’ Case, 19 Mass. 165, 170 (1824) (“A party ought
to know, at the time of committing the offence, the whole
extent of the punishment; for it may sometimes be a mat-
ter of calculation, whether he will commit the offence,
considering the severity of the punishment”). Because
increasing the punishment affixed to the crime deprives
people of the opportunity to plan their conduct in light of
the law, “[t]he enhancement of a crime, or penalty, seems
to come within the same mischief as the creation of a
crime or penalty; and therefore they may be classed to-
gether.” Calder, supra, at 397 (opinion of Paterson, J.).
Retroactive laws that merely create a risk that a de-
fendant will receive a higher sentence, however, do not
implicate traditional ex post facto concerns. An individual
contemplating the commission of a given offense knows he
may be sentenced anywhere within the legally prescribed
range. He may hope to receive a lenient sentence, and he
may even have good reasons for expecting leniency. But
he does not have any guarantees. See Garner, 529 U. S.,
at 258 (SCALIA, J., concurring in part in judgment) (“Dis-
cretion to be compassionate or harsh is inherent in the
sentencing scheme, and being denied compassion is one of
the risks that the offender knowingly assumes”). The law
provides the defendant with only one assurance: He will
be sentenced within the range affixed to his offense by
statute. Legal changes that alter the likelihood of a par-
ticular sentence within the legally prescribed range do not
deprive people of notice and fair warning, or implicate the
concerns about tyranny that animated the adoption of
the Ex Post Facto Clause.
C
The statutory range in effect at the time of petitioner’s
offense remained in effect at his sentencing. The Guide-
14 PEUGH v. UNITED STATES
THOMAS, J., dissenting
lines sentencing range is not the punishment affixed to the
offense. See in Part I–A, supra. Accordingly, sentencing
petitioner under the amended Guidelines did not violate
the Ex Post Facto Clause. Because the Court concludes
otherwise, I respectfully dissent.
Cite as: 569 U. S. ____ (2013) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–62
_________________
MARVIN PEUGH, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 10, 2013]
JUSTICE ALITO, with whom JUSTICE SCALIA joins,
dissenting.
I agree with JUSTICE THOMAS that retroactive applica-
tion of amended advisory Guidelines does not violate the
Ex Post Facto Clause under our “sufficient risk” test. See
California Dept. of Corrections v. Morales, 514 U. S. 499,
509 (1995). I do not have occasion in this case to reconsider
that test’s merits or its relation to the original under-
standing of the Clause.