Peugh v. United States
The Supreme Court ruled that judges cannot sentence someone under stricter federal sentencing guidelines adopted after the person's crime, when those newer guidelines call for a longer prison term than the ones in place at the time of the offense.
Even though the federal sentencing guidelines are technically just advisory rather than mandatory, the Court found that they still function as the real anchor for most sentences, so retroactively raising the recommended range creates the kind of unfair risk of a harsher punishment the Constitution's ban on ex post facto laws was written to prevent.
“A retrospective increase in an applicable Guidelines range thus creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”
The Court's central holding on why higher retroactive guidelines ranges violate the Ex Post Facto Clause.
How it got here: A federal trial court sentenced Peugh under the newer, harsher guidelines and the Seventh Circuit affirmed, following its own precedent rejecting similar ex post facto claims.
The Case in Depth
What happened
Marvin Peugh and his cousin ran two Illinois farming businesses and, facing cash-flow problems, committed bank fraud by lying about grain contracts to secure loans and by writing bad checks between their own accounts to inflate balances artificially. Their fraud occurred in 1999 and 2000. Peugh was convicted of five counts of bank fraud, and at sentencing in 2010 the applicable federal sentencing guidelines had since been revised to recommend a much harsher punishment than the guidelines in place when he committed his crimes.
The question before the Court
If a man's crime happened under lenient federal sentencing guidelines but harsher guidelines took effect before he was sentenced, can the harsher ones be used against him?
The Court's answer
Yes — the Court ruled that sentencing someone under guidelines adopted after his crime, when those newer guidelines recommend a harsher punishment than the guidelines that applied at the time of the offense, violates the Constitution's ban on ex post facto laws. Even though the federal guidelines are technically advisory, not mandatory, the Court found that judges must start with them, treat departures as requiring extra justification, and face appellate review that can presume within-guidelines sentences are reasonable — all of which push most sentences toward the guidelines range in practice.
Because of that real-world pull, raising the recommended range after the fact creates a genuine risk of a harsher sentence, not just a theoretical one. The Court found this situation closely resembled an earlier case involving Florida's sentencing guidelines, and held that Peugh must be sentenced using the guidelines that existed when he committed his crimes.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Defendants sentenced for crimes committed before a guidelines update now have a constitutional guarantee that courts will start from the calculation in effect at the time of their crime, not a later, harsher one. This affects thousands of federal sentencings each year where the guidelines have changed between offense and sentencing, even though judges retain discretion to depart from the guidelines.
What changes now
The case returns to the lower courts, where Peugh must be resentenced using the sentencing guidelines that were in effect at the time of his 1999-2000 crimes rather than the harsher 2009 version. The ruling is a final merits decision that will govern similar sentencing disputes nationwide whenever guidelines change between the date of an offense and the date of sentencing, though the Court noted such errors can sometimes be harmless if the record shows a court would have imposed the same sentence anyway.
What this does not decide
The Court did not decide that the federal sentencing guidelines are legally binding or that they violate the Sixth Amendment; it distinguished the ex post facto question from separate Sixth Amendment concerns about judge-found facts increasing penalties, and left the Booker sentencing framework itself intact.
Concurrences and dissents
Concurrence in part — Justice Kennedy
Justice Kennedy joined Justice Sotomayor's opinion in full except for Part III-C, meaning he agreed with the core holding that retroactively applying harsher sentencing guidelines violates the Ex Post Facto Clause, but did not join the portion discussing the fairness principles and fair-warning rationale underlying the Clause.
Dissent — Justice Thomas
“The Federal Guidelines, by contrast, do no such thing.”Thomas's core objection that, unlike Florida's old guidelines, federal guidelines don't actually constrain judges.
Justice Thomas argued the advisory guidelines have no binding legal effect on sentencing courts, so retroactively applying newer guidelines does not create a constitutionally significant risk of a harsher sentence; any increased risk merely reflects the guidelines' persuasive, not legal, force. He also urged abandoning the Court's 'sufficient risk' test in favor of Justice Chase's original Calder framework, which looks only to the punishment formally attached to the crime.
Dissent — Justice Alito
Justice Alito, joined by Justice Scalia, agreed with Justice Thomas that retroactive application of the advisory guidelines does not violate the Ex Post Facto Clause under the Court's existing 'sufficient risk' test, but wrote separately to note he was not taking a position on whether that test itself is correct or reflects the Clause's original meaning.
How the Court got there
The legal reasoning, step by step
- The Court asked whether applying newer sentencing guidelines with a higher recommended range violates the Constitution's ban on ex post facto laws, which forbids retroactively increasing the punishment for a crime already committed.
- The touchstone test asks whether a change in the law creates a 'sufficient risk of increasing the measure of punishment' for the crime — not certainty of a harsher sentence, just a meaningful risk of one.
- The Court found this case closely resembled Miller v. Florida, a 1987 decision striking down retroactive use of a state sentencing-guidelines system, because procedural rules in both systems made departing from the guidelines range burdensome even though not strictly required.
- Although the federal guidelines are advisory rather than mandatory after United States v. Booker, the Court concluded that district courts still must start with the guidelines, treat deviations as needing extra justification, and face appellate review that may presume within-guidelines sentences reasonable — all of which channel most sentences toward the guidelines range.
- Empirical sentencing data showed that when a guidelines range changes, actual sentences imposed tend to move with it, supporting the conclusion that a higher range creates a real, not merely speculative, risk of a higher sentence.
- The Court therefore held that using the newer, harsher guidelines calculation for a crime committed under an older, more lenient version amounts to an ex post facto violation.
Doctrinal impact
Cases affected by this decision
Reaffirms Miller v. Florida (482 U. S. 423)
The Court relied on Miller's reasoning to hold that federal guidelines changes can likewise violate the Ex Post Facto Clause.
Distinguishes Kring v. Missouri (107 U. S. 221)
Mentioned only in the dissent as an overruled precedent, not disturbed by this majority opinion.