When Is a Guideline Not a Guideline?: Supreme Court Says Sentencing Guidelines Have Force of Law for Ex Post Facto Purposes

BY MATTHEW E. KOHEN — On June 10, 2013, the Supreme Court of the United States issued its opinion in Peugh v. United States. This case—involving the retroactive application of U.S. Sentencing Guidelines—implicates interesting constitutional concerns. In a term where some of the opinions issued (see, e.g., Salinas v. Texas and Maryland v. King) caused some commentators concern that our most basic liberties were being diminished, Peugh serves as a refreshing reminder that the staple provisions of the Constitution are still intact.

In a 5-to-4 decision split along the familiar ideological lines, the Court held that the Constitution’s Ex Post Facto Clause (Art. I, § 9) prohibits federal courts from sentencing a defendant based on Guidelines that were promulgated after the commission of his crimes where the newer Guidelines provide for a higher sentencing range than the version in place at the time of the offense. Marvin Peugh was convicted in 2009 on charges of federal bank fraud. When the crime was committed in 1998, the U.S. Sentencing Guidelines recommended a sentence in the range of 30 to 37 months. When Peugh was sentenced in 2009, however, the Guidelines had been changed and now recommended a sentence of 70 to 87 months.

Although Peugh’s attorney alerted the sentencing judge to this difference, the judge rejected the argument, stating that “a sentence within the [G]uideline[s] range is the most appropriate sentence in this case.” The sentencing judge then sentenced Peugh at the low end of the 2009 Sentencing Guidelines. The Court, per Justice Sotomayor, seized ahold of this finding to justify the conclusion that the Guidelines effectively had the force of law, and that the judge would have sentenced Peugh to 30 to 37 months had the Guidelines not been changed between the commission of the offense and sentencing.

Interestingly, in 2005, the Court decided United States v. Booker, holding that the Sentencing Guidelines were not mandatory, but merely advisory. Depsite this fact, the Court considered the guidelines to be within the scope of the Ex Post Facto Clause. This was due in large part to Justice Sotomayor’s finding that “[i]n less than one-fifth of cases since 2007 have district courts imposed above- or below-Guidelines sentences absent a Government motion.”

The decision makes eminent sense. While the Sentencing Guidelines may not strictly be law, they bear many qualities that give them the force of law. For instance, even though the Guidelines are no longer mandatory, they still play an important role in a federal judge’s decision-making. In fact, failing to look at or follow the Guidelines may constitute reversible error. Discretionary or not, federal judges follow the Guidelines in the vast majority of cases.

In layman’s terms, the Ex Post Facto Clause prevents, among other things, the government from passing a law that retroactively imposes a sentence greater than that in effect at the time the crime was committed. The majority settled on an interesting interpretation of the Ex Post Facto Clause. Rather than —as the dissent urged—hold the Ex Post Facto Clause inapplicable because the Sentencing Guidelines are not truly law, the majority looked to the underlying principles of what the Clause sought to accomplish. Looking to the intent of the Framers, the plurality determined that “[t]he Clause ensures that individuals have fair warning of applicable laws and guards against vindictive legislative action.” Expanding this definition, the plurality held that even where such concerns are not directly implicated, the Ex Post Facto Clause “safeguards a fundamental fairness interest.”

By expanding the reach of the Ex Post Facto Clause, the Court preserved what it perceived to be the underlying principles of the Constitution. This decision was just one of many interesting opinions issued in what is sure to be a historic term.

5 thoughts on “When Is a Guideline Not a Guideline?: Supreme Court Says Sentencing Guidelines Have Force of Law for Ex Post Facto Purposes

  1. Zachary D. Ludens

    I think Mr. Vega and Ms. Valanty make great points. And I think Ms. Valanty’s really gets to the heart of Justice Stevens’s partial dissent in Booker. How can you maintain an entire statutory scheme like the Guidelines, which was premised upon the fact that they would be mandatory, and just make them non-mandatory? Instead, Justice Breyer struck two sections of the Guidelines, which makes them persuasive only.

    This is why we have discussions about things such as severability clauses, and the ability of the Court to fashion a remedy, where Congress has created a law that they are finding constitutionally infirm.

    Justice Stevens’s remedial dissent alludes to Blakely and Apprendi and the requirement that the jury find every sentencing enhancement beyond a reasonable doubt. Here, that simply means that the jury would have to have found the obstruction of justice and the $2.5 million enhancement. Then, the guidelines would be constitutional. Otherwise, the Court should have abstained from blue-penciling the Sentencing Reform Act, as Justice Stevens claims.

    But, instead, Justice Breyer blue-penciled an entire section of the law, and made the Guidelines advisory. So, must the Court now revisit the question of Booker, Blakely, and Apprendi? Did the Court implicitly overrule parts of them? Or is this just the Court doing democracy-forcing, and encouraging Congress to act, as they did in Shelby County v. Holder?

    These cases (Peugh, King, and Salinas) relatively flew under the radar this term because of Shelby County, Perry, and Windsor, but I believe that these cases will appear in more law school textbooks and have more real-world application in the short and long terms.

    After this, what are the Sentencing Guidelines? And if the court must begin from them, and has the ability to depart upwards or downwards, but must state the reason on the record, how is that different than the pre-Booker Guidelines? I may be left-leaning and favor Justices Breyer and Sotomayor, but this area is now more cloudy than before. It makes one hearken back to Justice Stewart and his love of bright-line rules in the criminal context. It seems to me that a bright-line rule here would give the lower court judges much more guidance than the Apprendi-Booker-Peugh framework will.

  2. Anonymous

    I am concerned about what makes a “law” under this opinion. If a limit on discretion defines law, as it appears to under this opinion, at what point is the discretion district court judges have sufficiently free from limitation?

    I read the opinion. Justice Sotomayor and the Court seem to say the difference between this law and the laws in earlier cases is one of degree. In the earlier case that concerned the Florida guidelines, Florida judges had been able to deviate from Florida’s guidelines if they provided a clear and convincing explanation for their deviation. But if Florida judges stuck within the guidelines, no explanation was necessary. That was not good enough in 2007. Here and now, federal judges need only explain their (presumably) reasonable decision, whether or not they adhere to the strictures of the guidelines. Not even this was good enough for the Supreme Court.

    The issue seems to be less about the degree of discretion on review and more about a perceived pressure on the district court judges. There seems to be a concern that Judges are pressured into adopting the guidelines, even though they are now supposed to be simply suggestions. That pressure seems to define “law” in this opinion. The opinion apparently says, “judges may have discretion, but if some government-sanctioned written document influences that discretion, it is the same as law.” That is not law; it is guidance.

    This leads me to two final questions. First, how concerned do we really need to be about pressure on federal judges? Federal judgeships are lifetime appointments. If they put effort and reason into their opinions, they have nothing to fear. Second, am I correct in understanding that, regardless of the outcome, district court judges must properly calculate the sentencing range under the guidelines? The actual legal mandate concerning the sentencing guidelines seems to be no more than a formality requiring district court judges to perform grade school arithmetic. I am confident they are capable in this regard.

    This opinion is poorly decided. It shows a distinct lack of faith in district court judges’ ability to justify their sentencing decisions. The guidelines are not law; they are suggestions. District court judges have the wisdom to tell the difference.

  3. Paulina Valanty

    I see two main ways of construing this decision. First, one can argue that the Court is injecting more *options* into a sentencing determination by ruling that the judge must start by considering the guidelines at the time of the offense before she can decide whether to apply the current ones. These options can be real,guiding judges through their decisions, or “purely semantic,” simply requiring them to add boilerplate language to a sentencing order before applying the current standards.

    Second, one could also argue that the Court is making this presumption–that the guidelines at the time of the offense are appropriate–binding by holding that a judge must begin its decision process at those guidelines. Thus, one can interpret this decision as perpetuating the undue influence of sentencing guidelines, adding old guidelines to the mix, and continuing to limit a judge’s ability to use her discretion when sentencing.

    One can see the first interpretation as the Court trying to undermine the binding effect of guidelines, at least in a limited amount of cases. This is consistent with the Court’s concern that judges rely too much on guidelines to the point of making them rules.

    However, the second case is more problematic. It implies that the Court saw a problem in the sentencing process and it used this problem to its advantage in imposing a rule that it finds more just. The Court is, in essence, requiring judges to explain why they did not adhere to the guidelines in place at the time of the crime, much like the Florida statute in Miller did. Furthermore, one can anticipate that cases in which a judge departs from the old guidelines to apply the current ones will be the ones reviewed more closely for abuse of discretion. Thus, the Court is requiring judges to apply one set of guidelines over another, discouraging them from conducting a case-by-case review that would make them depart from any guidelines.

    Only subsequent cases will determine whether the Peugh holding will be “purely semantic” or a perpetuation of the de facto mandatory guidelines scheme federal courts follow. As an idealist, I would like to believe the Court is inserting options into a highly standardized process with hopes of achieving just results. But I suppose only time will tell whether the Guidelines remain rules or become guidelines again.

  4. Bryan Vega

    This is one of those Supreme Court opinions that are tailor-made to be taught to law students, as it provides the type of fractured opinion that allows for thoughtful and insightful debate on two opposite ends of the spectrum. Which side you fall on does not necessarily matter, because to say there is an absolute right and wrong here is simply ignorant. Breaking down the majority and dissenting opinions it seems clear, in my opinion, that the majority is based on a perspective of equity and common sense, with the dissent being based on a stricter interpretation of the Constitution and applicable legal doctrine.

    Looking at the facts of this case in a vacuum, the majority seems to come to the fairest conclusion. However, doing this can be very dangerous for future cases. This is especially true in the arena of ex post facto laws, where the justices themselves in the opinion acknowledge to be an unsettled area of law. Even in the majority Justice Kennedy refuses to join the entire opinion, and Justice Thomas in dissent is met with similar lack of uniformity. Overall, I find myself siding, albeit slightly, with the dissenting justices point of view. In the end the sentencing guidelines are advisory and do not bind district court judges, so it is hard to justify them being “laws” within the meaning of the ex post facto clause of the Constitution. Accordingly, this means that the the “significant risk” test does not apply in this situation.

    This stricter interpretation that follows a more textualist approach to reasoning would help settle some of the confusion in the arena of ex post facto laws. The majority has clouded the doctrine even further, by stretching prior case law in its favor and incorporating statistics regarding the usage of sentencing guidelines in its underlying analysis. This may have led to a better result for the defendant in this case (although this may not even be the case; we will have to wait and see the results on remand), but has ultimately made the inquiry in future cases that much more uncertain. One thing is for certain, we have not seen the last of the ex post fact clause in the Supreme Court.

  5. Zachary Ludens

    Where is the line after this, though? The SCOTUS made clear that judges can still depart from the Guidelines–presumably to new guidelines. All that the judge would have to do is say simply that “the new guidelines reflected the will of the people” as to punishment for that particular offense, and that the judge finds that the increased Guidelines are more appropriate as to this particular criminal. Then, the judge can sentence the criminal to the increased sentence, so long as it still fell within the maximum authorized by law at the time of the offense.

    Further, Justice Sotomayor’s intimation that departures in one-fifth of cases absent a governmental motion is not significant leaves much to be desired. There are many cases in which the Government comes in with a 5K1.1 motion, or something similar in effect, that causes a departure. When you factor these in, what percentage of cases involve an upward or downward departure from the Guidelines? If the crux of the argument is that the Guidelines are effectively law, then departures in almost half of the cases would severely undercut this assumption. Remember that judges are free to ignore the recommendations of the Government–I once worked on a case where the federal government recommended a sentence of fifteen years in a sex trafficking case. The judge simply rejected this recommendation and departed significantly upwards–sentencing the individual to life in prison. The Eighth Circuit affirmed on appeal. And remember that there is no parole in the federal system.

    In fact, the ability of federal judges to depart from Government recommendations and from the Sentencing Guidelines–which are effectively another form for Government recommendation–is so entrenched in the system that most judges include it in their plea colloquies. So now, the judge just needs to give a reason for departing upwards from the old Guidelines to the new.

    In this case, the maximum sentence provided by law is 30 years. 70-87 months is well within the maximum of 30 years. Under the 1998 Guidelines, Peugh should have been sentenced to 37-46 months–I am pretty sure that a clerk for Justice Sotomayor miscalculated the appropriate sentencing range (6+13+2=21, not 19). Under the 2009 Guidelines, Peugh should have been sentenced to 70-87 months. The maximum sentence in either instance was 30 years. Had the judge simply said that “a sentence of 70 months is the most appropriate in this case,” I think that Justice Kennedy would have joined Justice Thomas rather Justice Sotomayor. But because the finding was that a sentence within the Guidelines was most appropriate, Justice Kennedy swung to the Left.

    Federal judges are given broad discretion in sentencing. That is why the Supreme Court in Booker struck down mandatory Guidelines. They are only persuasive anymore because Justice Breyer helped write them while working with the late-Senator Kennedy and wanted to keep them somewhat intact. But inasmuch as we want consistency on a national scale, the Supreme Court in the death penalty context has made clear that sentencing should be an individualized and particularized consideration. Judges can depart upwards or downwards. They just need to give a reason for doing so. Then, an appellate court will give deference to these findings of fact.

    So, what is the law after Peugh? Sentencing Guidelines may be persuasive, but they are not law. Maximum sentences are. Judges can depart upwards. They can depart downwards. They just need to make findings of fact and state on the record why it is the most appropriate. Then an appellate court will sign off on it. Had the Supreme Court held that judges must use the Guidelines in effect at the time of the offense, it would be a different story. But they did not. And so Peugh will just formalize a requirement that judges give a reason for going with the newer Guidelines on the record.

    Peugh may look as though it is the Supreme Court is looking to protect rights. But in the long run, I doubt it will have much impact.


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