So just how advisory are the “advisory” federal sentencing guidelines? That was the central question in the U.S. Supreme Court’s decision earlier today in Peugh v. United States, which held that guidelines amendments resulting in harsher recommended sentences are limited by the Ex Post Facto Clause of the Constitution.
The Court converted the federal sentencing guidelines from mandatory to advisory in 2005, but left unanswered many important questions about what exactly it means for the guidelines to be “advisory.” Several of these questions were answered in a trilogy of 2007 decisions, which effectively established a new and unique sentencing system for the federal courts. Although sentencing judges are not required to follow the guidelines, the Supreme Court did put a thumb on the scales in favor of guidelines sentences. Dissenting justices objected that this kinda-sorta advisory system violated the Sixth Amendment, but to no avail.
The new system also raised Ex Post Facto Clause issues, which divided the lower courts. Peugh nicely illustrates the problem.
Peugh committed bank fraud in 1999 and 2000, but was not sentenced until many years later. In the intervening years, the applicable guidelines were made substantially harsher. If sentenced under the guidelines in place at the time of his crime, Peugh faced a recommended guidelines range of 30-37 months. The new guidelines, however, called for a range of 70-87 months, more than doubling Peugh’s time in prison. The sentencing judge applied the new guidelines and chose to impose a sentence within the higher range. On appeal, the Seventh Circuit rejected Peugh’s argument that such a retroactive application of guidelines amendments violates the Ex Post Facto Clause.
In overturning the Seventh Circuit’s decision, the Supreme Court, per Justice Sotomayor, framed the test this way:
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 Morales, 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 (internal quotation marks omitted).
While the government argued that the risk of a higher sentence was not “sufficient” because the sentencing judge was theoretically free to impose a sentence below the new, higher recommended range, Peugh relied on the thumb on the scales established by the Court’s 2007 trilogy.
By a narrow 5-4 margin, the Court chose Peugh’s “common sense” over the government’s formalism:
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. 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 (emphasis added). Failing to calculate the correct Guidelines range constitutes procedural error. Id., at 51. A district court contemplating a non-Guidelines sentence “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id., at 50.
These requirements mean that “[i]n the usual sentencing, . . . 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 sentencing 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 Guidelines are in a real sense the basis for the sentence.” Ibid. (emphasis added). 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 ensures that they remain the starting point for every sentencing 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 reasonableness review, Gall, 552 U. S., at 51. As in Miller, then, the post-Booker sentencing regime puts in place procedural “hurdle[s]” that, in practice, make the imposition of a non-Guidelines sentence less likely. See 482 U. S., at 435.
. . .
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. See United States Sentencing Commission, 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 below-Guidelines sentences absent a Government motion. See ibid. Moreover, the Sentencing Commission’s data indicate that when a Guidelines 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).
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.
The Court’s approach here creates a tension between its ex post facto treatment of the guidelines (in which the guidelines are recognized to be sufficiently weighty so as to preclude retroactive application of amendments) and its Sixth Amendment analysis (in which the guidelines are not seen as weighty enough to trigger a jury-trial right in determining the recommended range). Does this point to some instability in the great 2007 accommodation? The realism of Peugh about the continuing practical importance of the guidelines, including the Court’s noteworthy reliance on statistics regarding actual sentencing practices, makes it seem all the more questionable that greater procedural protections are not provided to federal defendants at sentencing.