By Robert Barnes, Jun 11, 2013 The Washington Post
A divided Supreme Court ruled Monday that tougher sentencing guidelines passed after someone commits a crime cannot be used to justify a longer sentence for the defendant.
The court ruled 5 to 4 that such a change would violate the Constitution’s prohibition against enacting laws that retroactively make an action illegal or call for greater punishment.
Even though the federal sentence guidelines are advisory, not binding, Justice Sonia Sotomayor wrote for the majority, the analysis is the same. She said the range of sentencing options contained in the guidelines “is intended to, and usually does, exert controlling influence on the sentence that the court will impose.”
In the case at hand, Marvin Peugh was accused of bank fraud and other financial crimes involving an Illinois farming business he owned with his cousin. The scheme took place in 1999 and 2000.
But Peugh was not convicted and sentenced until much later. The guidelines in place at the time of his crimes called for a sentencing range of 30 to 37 months. But when Peugh was sentenced in May 2010, the range had been toughened to 70 to 87 months.
Peugh argued that he should not be sentenced under the new regime. But a judge rejected the claim and sentenced him to 70 months. His conviction and sentence were upheld by the U.S. Court of Appeals for the 7th Circuit.
Sotomayor was joined in overturning that decision by the rest of the court’s liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan — plus Justice Anthony M. Kennedy.
Federal sentencing guidelines originally were enacted to be binding. But the court ruled in 2005 that that ran afoul of the Constitution. The remedy was to make them advisory. But Sotomayor said the guidelines still carry enormous weight.
“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,” Sotomayor wrote.
“Indeed, the rule that an incorrect guidelines calculation” can be reason for appeal “ensures that they remain the starting point for every sentencing calculation in the federal system.”
The court rejected the government’s position that because the guidelines did not carry the legal effect of a “law,” they do not violate the ex post facto clause.
Justice Clarence Thomas, in dissent, largely agreed with the government’s view, and was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr.
Along the way, Thomas apologized for a previous court decision that he wrote and that the majority on Monday in part relied on: 1995’s California Dept. of Corrections v. Morales.
“As the author of Morales, failure to apply the original meaning [of the ex post facto clause] was an error to which I succumbed,” Thomas wrote in a footnote.
“The guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant’s sentence,” Thomas wrote. “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.”
The case is Peugh v. United States.

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