Peugh v. United States

(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., at

261–262)).

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., at

425–426. 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.