Peugh v. United States, 133 S. Ct. 2072 (2013).

Defendant, convicted of bank fraud after a jury trial, appealed his sentence of 70 months’ imprisonment.  Defendant argued that the district court violated the Ex Post Facto Clause when it sentenced him to a term within the guideline range under the Sentencing Guidelines in effect at the time of sentencing rather than the more lenient version in effect at the time the crimes were committed.  In a 5 to 4 decision, the United States Supreme Court agreed.  In reaching its decision, the Court observed that “fundamental fairness” is one of the principal interests that the Ex Post FactoClause was designed to safeguard, and the key inquiry here is whether a “change in law presents a ‘sufficient risk of increasing the measure of punishment attached to the covered crimes.’”  The Court rejected the government’s argument that after United States v. Booker, 543 U.S. 220 (2005), which rendered the Guidelines advisory, the Guidelines do not have the legal force and effect of “laws” within the meaning of the Ex Post FactoClause.  Relying on an earlier decision, Miller v. Florida, 482 U.S. 423 (1987), the Court explained that a discretionary sentencing scheme can achieve “binding legal effect” because of “a set of procedural rules and standards for appellate review that, in combination, encouraged district courts to sentence within the guidelines.”  The Court found that the post-Booker sentencing scheme includes procedural requirements that “in practice, make the imposition of a non-Guidelines sentence less likely,” and empirical evidence shows that the Guidelines remain “the lodestone of sentencing.” Therefore, the Court concluded that the retrospective application of an increased Guidelines range creates a sufficient risk of inflicting a greater punishment on defendant and constitutes an ex post factoviolation.  For this reason, the Court reversed the judgment of the United States Court of Appeals for the Seventh Circuit and remanded the case for further proceedings.