When Congress created the Sentencing Commission in 1984 and directed it to formulate Sentencing Guidelines, it anticipated that there would be amendments, and it directed sentencing judges to “consider … the guidelines … in effect on the date the defendant is sentenced” rather than when the crime was committed.  In Tuesday’s oral argument in Peugh v. United States, the Court considered whether it violates the constitution’s Ex Post Facto Clause to follow this directive  when the Commission has amended the guidelines since the time of a defendant’s crime in a way that increases the imprisonment range.  Of course, when Congress passed the 1984 Sentencing Reform Act (“SRA”), it made the guidelines ranges mandatory.  But in 2005, the Supreme Court ruled in United States v. Booker that the Guidelines, while still relevant, cannot be mandatory, to avoid constitutional objections under Apprendi v. New Jersey.  It turns out that the unexpected Booker ruling, making the Guidelines discretionary, may save the “in effect on the date the defendant is sentenced” rule from a constitutional ex post facto demise.  This is because, as Justice Scalia pointedly observed (quoting from Calder v. Bull in 1798), the Guidelines no longer “affix a higher punishment” – they merely provide influential advice.

Oral argument demonstrated, however, that the question is not free from debate.  Peugh’s counsel, Stephen Kinnaird (a Washington, D.C. lawyer who argued a big defense winner three Terms ago, Padilla v. Kentucky) ran into tough questioning from the outset.  When he noted that the SRA requires district judges to “consider” the Guideline range, Justice Sotomayor interrupted, saying “Well … there’s the disconnect for me.”   She seemed to be noting that while district judges must “consider” the guidelines, they do not have to follow them.  So, the argument goes, how can an increased guideline range be an “ex post facto law” when it is merely a recommendation?  Justice Sotomayor, the only Justice who has ever regularly sentenced federal defendants as a district judge, expressed skepticism a few more times.  It seems doubtful that Peugh can prevail if he doesn’t have Justice Sotomayor’s vote.

Meanwhile, the Chief Justice and Justices Scalia and Alito seemed to make it clear that they find no constitutional problem here, in light of the non-mandatory nature of any Guideline range.  (Justice Thomas, as is his normal practice, said nothing at argument.)  The Justices noted that the foundation for Peugh’s argument is a standard announced in two prior Supreme Court decisions, Garner v. Jones and California Department of Corrections v. Morales: that a change in the law which creates a “significant risk” of increased punishment is enough to violate ex post facto principles.  Rather than directly contest that test (as one might have expected given its non-textual character), the Justices instead posed a series of hypotheticals (as did Judge Posner in the Seventh Circuit decision leading to this one), demonstrating that many other changes might be said to create such a “significant risk.”   “What about [a] statute allowing relatives and friends of the victim to testify?  …. [D]on’t you think that creates a significant risk?” asked Justice Scalia.  What if Congress first allows, but then later disallows, consideration of “strong family ties,” asked the Chief Justice.  What if Congress says to consider national sentencing averages, and then “data collection over time becomes more sophisticated” so that the numerical average increases, the Chief also asked.  When Kinnaird attempted to circle around an answer, the Chief Justice doggedly pursued him over three pages, until Kinnaird finally voiced an unhappy “I don’t know.”  This was no failing on Kinnaird’s part – the hypotheticals are simply impossible to separate and the “significant risk” test has no clear demarcating line.  With this, the Chief was not heard from again until near the end.

Justice Alito then started in with his own hypothetical, leading to a humorous exchange with Justice Sotomayor.  The details are unimportant, only the punchline.  “I’m told that in the Southern District,” Justice Alito began (and for judges in the greater New York area, there is only one Southern District), and he then explained what he did “when I was on the court of appeals” in New Jersey.  He then said “That might not have been true across the river,” which Justice Sotomayor tartly interrupted (with a smile) with “It wasn’t.”  The transcript then drolly notes “(Laughter).”   Never have the East-Coast-corridor rivalries on this largely East Coast Court been more succinctly, if implicitly, showcased.   Thank goodness for the diversity provided by our West Coast Justice Kennedy!

Justices Breyer and Scalia then briefly butted heads when Justice Breyer said “I would have thought you would have gone back to Calder v. Bull,” which he paraphrased as referring to “a law that changes the punishment.”  Justice Scalia quickly intervened to note that Calder actually mentions laws that “affix” a higher punishment, implying that the now-discretionary Guidelines do not.  Kinnaird attempted to move back to Garner, but not before Justice Breyer said “I wouldn’t concede that” while Justice Scalia said (according to the transcript) “that doesn’t help.”  As I noted in my recap of a different decision the Court issued on Tuesday, these two Justices can’t seem to agree on much of anything in the criminal law arena.

Interestingly, Justice Kennedy asked some of the questions most helpful to Peugh’s position.  He and Justice Kagan both noted that, on appeal, “there’s a presumption of correctness that attaches to the guidelines.”  This would seem to make an increase in Guideline severity quite significant – a “great legal consequence,” as Justice Kagan remarked.  But Justice Alito noted that the instances of reversal on appeal for unreasonableness are “in the single digits,” and Justice Sotomayor echoed, asking Kinnaird whether he was “aware of any [such] circuit court case in recent time”?  (On this last point, the Justices should be reminded of the Ninth Circuit’s recent decision in United States v.Ressam in which the en banc Court did indeed reverse an under-Guidelines sentence as unreasonably low, albeit on perhaps extreme and unique facts.)

Assistant to the Solicitor General Eric Feigin then presented a smooth and relatively untroubled argument, after a few hard questions at the start.  Justice Sotomayor asked him why the Solicitor General’s Office was “fighting this … why this whole Supreme Court case?”   Feigin noted that the SG had originally recommended against cert., and he then “freely” conceded “that the guidelines are very influential” on federal sentences.  That was an important concession to make, as it avoided potential arguments to the contrary – and yet preserved the government’s ultimate position that, influential or not, the Guidelines do not any longer mandate any particular sentence and so (argues the government) they cannot violate the Ex Post Facto Clause.

At one point, Feigin got a long three-page question from Justice Breyer (to which Justice Scalia could not resist saying “I disagree with all that, by the way. (Laughter.)”)  But that seemed to exhaust Justice Breyer’s concerns.  Justice Ginsburg then firmly tried to defend her former circuit’s opinion (the D.C. Circuit), which was contrary to the Seventh Circuit’s here, but Feigin adroitly stuck to his guns.  He also pointed out that if the district judge had simply deferred to the guidelines without considering other factors, that might be reversible error – but that no such claim was presented by Peugh here and that, in any case, that would not be an ex post facto problem.

One last moment deserves mention.  Chief Justice Roberts was silent until near the end, when he interrupted an answer Feigin was giving.  The following exchange then occurred:

“CHIEF JUSTICE ROBERTS:  What if – I’m sorry.  Are you finished?

“MR. FEIGIN:  I’m happy to be, Your Honor.

“(Laughter.)

“CHIEF JUSTICE ROBERTS:  A good advocate.”

Pretty high praise from the experienced “good advocate” himself.  Feigin’s composure and moderated good nature certainly did not hurt his merits position.  Although Kinnaird rose to make “five quick points” in rebuttal, no Justice said a further word.

In the end, this case could yield an unusual line-up, as Justice Kennedy suggested that he may be in Peugh’s camp, but Justice Sotomayor somewhat uncharacteristically appeared not to be.  But the hardest point is substantive, not ideological: despite an hour of concentration, there emerged no clear dividing line between some “significant risks” of increased punishment that create an ex post facto problem, and others that don’t.  Certainly no one practicing in the federal courts today could say that an increased guideline range has no effect on sentences.  Indeed, even after Booker, most federal sentences still closely track the Guidelines, even when Guidelines ranges increase by amendment.  And the particular transcript of Peugh’s sentencing strongly suggests that the district judge in this case imposed a sentence far more severe than he would have a decade earlier (when Peugh committed his crime).  But all of that may not result in a constitutional violation — because when no clear line can be perceived, the Court’s answer is often to simply not perceive a problem.  The textual mystery of precisely what “ex post facto” means may remain just that, for now.

Posted in Peugh v. U.S., Featured, Merits Cases

Recommended Citation: Rory Little, Argument recap: The ex post facto boundary remains murky, SCOTUSblog (Mar. 1, 2013, 4:27 PM), http://www.scotusblog.com/2013/03/argument-recap-the-ex-post-facto-boundary-remains-murky/