Sex Post Facto: How the Consummation of Functionality and Formality Shaped Peugh v. United States. I. Introduction

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1 Sex Post Facto: How the Consummation of Functionality and Formality Shaped Peugh v. United States I. Introduction The first installment of the wildly popular Pirates of the Caribbean film franchise made reference to the right to parley as a significant aspect of the Pirate Code. However, the ruthless Captain Barbossa boldly declared that the Code is more like guidelines than actual laws, opening up the rest of the movie for some swashbuckling rule bending. Nonetheless, what constitutes a bright-line rule versus a guideline among landlubbers in the U.S. judicial system is subject to a slightly stricter level of scrutiny. The Supreme Court of the United States faced a difficult issue in Peugh v. United States in deciding whether the Ex Post Facto Clause of the U.S. Constitution 1 is implicated when a defendant is sentenced under an updated edition of the federal Sentencing Guidelines that call for a higher sentencing range than the edition in place at the time of the offense. 2 The Court held that a violation of the clause did occur 3 by attempting to resolve equally valid sides to the same constitutional coin a literal, textual interpretation of the clause and associated statutes and an analysis of actual judicial practices and their ramifications to individual defendants. This Note will discuss how Justice Sotomayor s two-faceted approach reconciled a threatening circuit split while simultaneously preserving personal liberties and the intent of the legislature. However, the opinion is not without fault there still remains an issue as to whether the Peugh decision actuated tangible change and guidance for the judiciary, or merely further muddled how the Court should regard the Guidelines themselves. Part II of this Note presents a brief synopsis of the development of ex post facto jurisprudence in the federal court system. Part 1

2 III analyzes Peugh s procedural posture and opinions, highlighting how Justice Sotomayor favors a dual analysis, taking into account both the empirical effects of enforcing the Ex Post Facto Clause on non-mandatory guidelines in addition to the associated statutory and precedential language, whereas Justice Thomas s dissent focuses largely on the textual implications of broadening the clause. Part IV discusses the divergence of the two conflicting arguments. First, the practical application or functional approach considers the measurable effects of how the judiciary utilizes the Guidelines to administer sentences and the quantifiable effect on defendants. Conversely, the formalistic approach emphasizes the established intent based on the Framers and Court s various interpretations of the Ex Post Facto Clause and how extending protection under it may set a dangerously overbroad precedent. It concludes by addressing how the discretion issue is addressed by both philosophies. Part V offers some concluding thoughts. II. Prior Law A) PERSPECTIVE AND BACKGROUND Since Calder v. Bull, in which Justice Chase stated that [e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed 4 qualifies as an ex post facto law, the Court has established an increasingly broad jurisprudence for what the clause protects. Although Lindsey v. Washington shifted the focus from annexation to the crime to disadvantage to the defendant 5, the Court has since been careful to toe the line with the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures 6 to avoid ambiguity as to what constitutes a slight detriment versus a change in the definition and associated penalty of criminal activity. 7 2

3 Prior to the Sentencing Reform Act of 1984, Congress was faced with the impending dilemma of how to resolve the problem of severe sentencing disparity among the federal district courts. 8 Thus, the United States Sentencing Commission established and was immediately tasked with composing regulations. 9 However, once the mandatory Sentencing Guidelines were adopted, the Court was then met with a Sixth Amendment issue in United States v. Booker that ultimately led to the severance of 18 U.S.C. 3553(b)(1) and 18 U.S.C. 3742(e), 10 rendering the Guidelines effectively advisory rather than compulsory. 11 B) THE POST-BOOKER ERA To reinforce the legislature s goal of encouraging sentencing uniformity among the district courts in spite of Booker s outcome, the Court in Gall v. United States held that district courts must consult the Guidelines when sentencing and must give a significant justification for a major departure from the suggested ranges. 12 Additionally, the Court altered the privilege of the appellate courts to review justifications of variance as abuse-of-discretion rather than de novo. 13 Rita v. United States further alleviated appellate courts of the burden of sentence analysis by allowing them the latitude to presume a within-guidelines sentence is reasonable. 14 Furthermore, Garner v. Jones both reaffirmed that the Ex Post Facto Clause bars retroactive enactments to increase punishment for a crime following its commission 15 and established that a significant risk of increasing [a defendant s] punishment 16 is necessary for the clause to be invoked. Garner also set the precedent of applying both a formal and empirical analysis to determine if the significant risk standard is met. 17 In Miller v. Florida, the Court dealt with state sentencing guidelines quite similar to the federal Sentencing Guidelines discussed in Peugh. 18 The guidelines in Miller were not subject to appellate review, nor were judges free to delineate from them without a written rationale. 19 Thus, 3

4 Justice O Connor writing for a unanimous Court held that the state sentencing guidelines were not flexible guideposts, but rather a high hurdle that must be cleared before discretion can be exercised. 20 Additionally, the guidelines carried the force and effect of law, and the retroactive application thereof would directly and adversely affect the sentence imposed on defendants. 21 Conversely, the Court in California Department of Corrections v. Morales reached the opposite conclusion to preserve legislative changes from unreasonable scrutiny and assessment for any minute potential effect on a defendant s punishment. 22 The prisoners affected by the regulations in Morales had no real chance of being released on parole, thus distinguishing it from Miller. 23 The federal circuits split on the issue when the Seventh Circuit held in United States v. Demaree that the Guidelines nudges [judges] toward the sentencing range, but his freedom to impose a reasonable sentence outside the range is unfettered, 24 thus not invoking the Ex Post Facto Clause. Judge Posner writing on behalf of the majority went on to say that the purpose of the Guidelines is for the judge to give serious consideration, and that insight based upon its suggestion could not be unreasonable. 25 Therefore, the Guidelines merely advise, rather than bind. 26 Nevertheless, the Second, Fourth, Sixth, Eleventh, and D.C. circuits contended that the clause s protection does apply in analogous cases because magistrates are more likely to sentence within the Guidelines based on the presumption of reasonableness on appeal. 27 III. Peugh v. United States Petitioner Marvin Peugh and his cousin Steven Hollewell ran Grainery, Inc. and Agri- Tech, Inc., farming services providers catering to Illinois landowners and tenants. 28 In 1999 and 2000, the pair engaged in fraudulent schemes to reconcile the businesses monetary issues by writing bad checks between the two companies, allowing them to overdraw both bank accounts 4

5 by $471, Additionally, they falsely represented contracts between the companies for fictitious grain deliveries in order to obtain bank loans, on which they failed to pay back principal. 30 Peugh pleaded not guilty to the charges and at trial was found guilty of five counts of bank fraud under 18 U.S.C However, he argued at sentencing that the Ex Post Facto Clause required him to be sentenced under the 1998 version of the Federal Sentencing Guidelines, which advised a sentence of 30 to 37 months, rather than the 70 to 87 months recommended by the 2009 Guidelines. 32 Nevertheless, the District Court applied the newer version on the basis of Demaree, and sentenced him to 70 months imprisonment at the bottom range of the newer Guidelines. 33 On appeal, Peugh again argued a violation of the Ex Post Facto Clause, specifying that the retroactive application of the 2009 Guidelines resulted in a sentence that was 24 months longer than the highest threshold of the 1998 Guidelines. 34 The Seventh Circuit reiterated its reasoning from Demaree that the advisory nature of the guidelines vitiates an ex post facto problem 35 and affirmed Peugh s sentence. The Supreme Court of the United States granted certiorari to resolve the rift in the circuit courts over whether a defendant sentenced under a more onerous version of the Sentencing Guidelines promulgated after the crime was committed is a violation of the Ex Post Facto Clause. 36 Writing for the majority, Justice Sotomayor joined by Justices Kagan, Ginsburg, and Breyer in full and by Justice Kennedy in full except as to Part III-C began by outlining past issues with sentencing disparity within the court system, 37 as well as the Sentencing Reform Act of 1984 s run-in with Sixth Amendment limitations on sentencing regulations and its effect on the fact finding process. 38 Justice Sotomayor returned to the sufficient risk test established in Garner to determine whether the updated Guidelines in this case created an adequate degree of 5

6 risk to Peugh, 39 finding that sentencing statistics substantiated such a suspicion of risk. 40 Additionally, the majority acknowledged Miller s emphasis on the Court s previous holding that the mere presence of judicial discretion does not necessarily undermine the risk of an ex post facto violation, thus making it applicable in this case as well. 41 The disparity between the sentences Peugh would have likely incurred under the two editions was also a vital point of reference, given the two-year gap between the lower levels of the newest Guidelines under which he was sentenced and the highest threshold from the 1998 edition. 42 Justice Thomas joined in part by Justices Scalia and Alito and Chief Justice Roberts writing for the dissent, however, stated that because the Guidelines are merely advisory, they have no legal effect on a defendant s sentence. 43 Therefore, the Ex Post Facto Clause is not invoked. Additionally, Justice Thomas went a step further to acknowledge Justice Sotomayor s empirical argument to note that the ultimate goal of the Commission to comport with 3553(a) is fulfilled if sentences do tend to fall within the Guideline s range thus, edits to the Guidelines were as a result of the Commission s findings to accommodate changing sentencing trends, rather than vice versa. 44 IV. Analysis The majority s incorporation of a broad analysis of both the practical and textual aspects of the issue 45 is vital to understanding why the Court in Peugh had a more well-rounded decision than that of the Seventh Circuit. Garner s reiteration of the importance of the empirical facet of the Court s ex post facto jurisprudence shifted the focus from solely purpose to also incorporating practical application for a more comprehensive analysis of the issue. 6

7 A) FUNCTIONALISM: THE EMPIRICAL STRIKES BACK Examining the Guidelines in [their] operation 46 allows the Court to take into account a rule s implications beyond its bare-boned terms. 47 This necessitates a finding of fact on the respondent s part that can help ensure that the extent of risk to the defendant is a valid concern. 48 In Peugh s case, evidence of the 24-month increase between the two editions of the Guidelines should speak volumes in this regard. The statutory compulsion to begin the sentencing process with a full consideration of the Guidelines ensures that they are, at the very least, persuasive. 49 The designation of the Guidelines as the starting point and initial benchmark 50 for sentencing inherently makes the set ranges the foremost consideration during the sentencing process, pushing personal penal discretion to the backburner. Additionally, classifying a miscalculation or disregard of the Guidelines as a procedural error 51 further underlines their vested authority. Thus, their advisory nature does little to curb potential cabining of a sentence, 52 and the Guidelines are likely to influence the sentences judges impose. 53 The Booker decision itself was quite blunt in conveying how its outcome perpetuates Congress s objectives, which include heavily reducing sentencing disparity. 54 Additionally, the Seventh Circuit warned the magistrates to think long and hard before substituting his personal penal philosophy for that of the Commission. 55 Despite the Seventh Circuit s contention that the Guidelines reflect the will of the judiciary, its suggestion appears quite to the contrary. More likely than not, these factors will have some tangible effects on sentencing trends. Taking it a step further, the Court in Peugh applied Miller to this case to show that the binding legal effect 56 achieved through procedure and the appropriate standards for appellate review gives judges incentive to stay within the Guidelines boundaries for fear of reversal on 7

8 appeal. 57 Furthermore, the infrequency of within-guidelines sentences being overturned, coupled with their mandatory consideration, has rendered the Guidelines a de facto basis for sentencing rather than mere suggestions. 58 Additionally, unlike Morales, in which there was almost no chance of the judiciary ruling in favor of the prisoners, 59 Peugh s sentence on the lower range of the newer Guidelines implies it would have similarly been lower on the 1998 Guidelines as well. 60 Thus, the misapplication does not constitute harmless error. As Justice Stevens Booker dissent implied, the transition from mandatory to non-mandatory is not one that can be made in a fluid stroke of the pen or bang of the gavel. 61 Likewise, Justice Scalia s Booker dissent appears concerned with the manner of achieving uniform sentences, 62 indicating his apprehension over how the decision frames the newly optional Guidelines. The dissent goes on to predict that the efforts of the Court are a fruitless attempt to skirt the Sixth Amendment issue and questioned whether the post-booker Guidelines would be a mere formality, used by busy appellate judges 63 rather than a useful but noncompulsory tool, further bolstering the notion that the Booker decision should not bar ex post facto protection simply because the Guidelines are not statutorily binding. Judicial activism-based jurisprudence established solely to avoid running afoul of the Sixth Amendment simply may not carry the weight necessary to transition the judiciary from bright-line rules to unencumbered discretion all too easily. Justice Thomas s inquiry of 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 64 in his Peugh dissent overlooks how both are inherently intertwined. The existence of the Guidelines alone implicates how they are applied. Nevertheless, there remains some contention over the accuracy and representation of the data relied upon in this prong of analysis. Advocates in favor of Peugh s outcome cite evidence indicating within-guidelines or 8

9 government-sponsored below-guidelines sentences occurring 86 to 87 percent of the time, 65 whereas strict formalists indicate a number closer to 59 percent. 66 B) FORMALISM: A BLACK-TIE AFFAIR The strictly formalistic methodology adopted by the dissent in Peugh and the Seventh Circuit (among others) illustrates the burden on the defendant to prove a close nexus 67 between the risk of an increased sentence and the judge s determination to do so. This stipulation differentiates the pre- and post-booker Guidelines from melting into one indistinguishable throng of procedures that carry the same authority, 68 as well as avoids the thicket of constitutional confusion that may result from the non-mandatory Guidelines invoking the Ex Post Facto Clause but not the Sixth Amendment. 69 Likewise, the formal approach applies the same careful consideration to statutory language and the Court s jurisprudence on the issue. Rather than viewing the Guidelines as the end-all-be-all standard, the formal methodology takes the wording of Gall at face value to mean that the Guidelines act merely as a starting point. 70 Thus, they are intended to act as an anchor to station district courts at some relative starting gate, rather than as a quick-fix, legally enforceable solution rendering the Booker decision moot. 71 This predicative analysis 72 in response to a similar issue with the United States Parole Guidelines has yielded results in favor of the Demaree decision rather than the majority in Peugh. 73 Moreover, the formal approach takes into consideration the Framers motivation behind including the Ex Post Facto Clause in the Constitution in the first place. The purpose and definition of the clause itself as a legal term of art 74 has been interpreted through the years, from Calder onward. Although such laws have been universally recognized as wholly unreasonable 75 and defined as legislation that increase[s] the degree of punishment previously denounced for any specific offense, 76 a literal interpretation of the clause s protective 9

10 boundaries seems to extend it only insofar as to laws that are legally binding. 77 The majority in Peugh contends that the Court s holding reflects the basic principles of fundamental fairness that make up the clause. 78 Justice Sotomayor in Peugh makes particular note of the authoritative weight the federal government gives the Guidelines, especially given that 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. 79 Although a criminal may not have the due process right to predict his sentence, the clause protects principles of fundamental justice, not merely reliance interests. 80 Thus, the application of these Guidelines has an actual effect on the defendants personal liberties. Justice Thomas concedes in his Peugh dissent that his oversight in failing to link the inherent purpose of the clause to the Morales majority opinion left the Court vulnerable to an avalanche of convoluted interpretations in the wake of the decision. 81 Nevertheless, the various definitions attributed to the clause and area of law over the years has made strict formalism a much more indefinite basis for judgment than the empirical prong when standing alone on this issue. The literal, unequivocal goal of Congress mandating the Commission and Guidelines was to create a system that promoted honesty, unity, and sentences proportional to the crimes committed. 82 However, the execution of the objective to reflect actual sentencing practices and changing attitudes toward various criminal activity vis-à-vis alterations to the Guidelines has resulted in a two-faceted argument either the edits are a result of actual sentencing trends, or actual sentencing trends change as a result of the edits. Unfortunately, this chicken-or-the-egg quandary is inherently circular, further illustrating how the formalistic prong struggles to stand alone without empirical corroboration. 10

11 C) DISCRETION: WHERE THERE MIGHT BE A WILL, THERE COULD BE A WAY Advocates of a broad reading of the Ex Post Facto Clause contend that the judiciary s perception of the Guidelines in the post-booker era continues to perpetuate their use as a de facto rulebook. 83 However, as formalists are sure to point out, judges are still required to consider multiple other factors outlined in 18 U.S.C. 3553(a) that, in addition to the Guidelines, should be reflected in the sentence. 84 Courts agreement that discretion includes both procedural and substantive aspects does indicate that even the functional approach cannot simply ignore the capacity for a judge to use their own professional will, 85 although Court precedent has acknowledged that the presence of discretion alone does not undermine an ex post facto argument. 86 This ambiguity leaves us with the opportunity to closely examine the Court s subsequent ex post facto jurisprudence. The functionalist approach attributes the necessity for a more significant justification for departures from the Guidelines coupled with more flexible appellate review procedures to how the discretion allotted to judges has remained largely unchanged since Booker. 87 This notion, substantiated by post-garner jurisprudence demonstrating that the categorical distinctions of guideline versus regulation are not dispositive, 88 illustrates how the judiciary s privilege of discretion is not an indicator of the clause s applicability. For example, Miller is arguably the most factually analogous case, 89 and the Court unanimously found that there was a clear ex post facto violation 90 because it was unreasonably burdensome for the sentencing court to exercise its vested judicial discretion. 91 Conversely, the formalist approach supports the idea that the Guidelines do not restrain judges discretion in any way 92 and merely comport with the notion that an explanation is essential for meaningful appellate review. 93 Further, the standard of review s language indicates that a sentence must be substantively unreasonable 94 to be 11

12 overturned; thus, a reversal is unlikely if the district court can provide an adequate rationale for imposing a sentence beyond the suggested range. 95 Although both philosophies give ample consideration to the privileges of the judiciary, there is clearly a dispute in how this deference affects sentences for individual defendants within the court system. V. Conclusion The deep divide among the circuits 96 gave the Court a wide berth to apply precedence in a variety of ways; however, this seemingly clean vehicle 97 to solve the issue illustrates how the journey to a resolution is more of a traffic jam than an open highway. A functional analysis leaves much to be desired in its appreciation for the motivations of the legislature and Framers and appears to encourage the continued treatment of the Guidelines as phantom mandates, thus perpetuating the pre-booker Sixth Amendment quandary. Nevertheless, concern over the unmooring 98 of constitutional prohibition from its purpose is an empty fear without a common sense application of the legal rule s potential effects. The Court in Peugh sought to serve as a middle ground between numbers-charged judicial activism and strict, myopic formalism. Although the amalgamation of both prongs seems to be dispositive to the contentious circuit split, the question still remains as to whether Peugh patched the issue for good or simply hid it beneath a court-sanctioned Band-Aid. 12

13 1 U.S. CONST. art. I, 9, cl. 3 ( No Bill of Attainder or ex post facto Law shall be passed. ). 2 Peugh v. United States, 569 U.S. 1 (2013). 3 Id. 4 Calder v. Bull, 3 U.S. 386, 390 (1798) (distinguishing the application of the Ex Post Facto Clause between criminal and civil issues). 5 Lindsey v. Washington, 301 U.S. 397, 401 (1937) ( Removal of the possibility of a sentence of less than fifteen years operates to their detriment in the sense that the standard of punishment adopted by the new statute more onerous than that of the old. ). 6 Garner v. Jones, 529 U.S. 244, 252 (2000) (citing Cal. Dep t of Corr. v. Morales, 514 U.S. 499, 508 (1995)). 7 Morales, 514 U.S. at 506 (holding that the Ex Post Facto Clause applies to administrative regulations despite the privilege of discretion only if retroactive application would significantly increase the measure of punishment imposed on a defendant). 8 Peugh, 569 U.S. at 4. 9 Id. 10 Booker v. United States, 543 U.S. 220, 254 (2005) (holding that mandatory Guidelines ran afoul of the Sixth Amendment by allowing judges to engage in fact finding that increased criminal penalties beyond the maximum authorized by the facts established by a plea of guilty or a jury verdict ). 11 Id. at Gall v. United States, 552 U.S. 38, 50, n.6 (2007). 13 Id. at Peugh, 569 U.S. at 6 (citing Rita v. United States, 551 U.S. 338, 347 (2007)). 13

14 15 Garner, 529 U.S. at Id. at James R. Dillon, Doubting Demaree: The Application of Ex Post Facto Principles to the United States Sentencing Guidelines After United States v. Booker, 110 W. VA. L. REV. 1033, 1037 (2008) ( Garner applied a two-tiered inquiry into both the formal aspects of a legislative enactment and its empirically demonstrable practical effects in order to determine whether the retroactive application of the enactment is barred by the Ex Post Facto Clause. ). 18 Benjamin Holley, The Constitutionality of Post-Crime Guidelines Sentencing, 37 WM. MITCHELL L. REV. 533, 542 (2011) ( The Court addressed more subtle limits on judicial discretion in Miller v. Florida, a case involving sentencing guidelines remarkably similar to the pre-booker federal system. ). 19 Id. at 542; see also Miller, 482 U.S. at Miller, 482 U.S. at Id. 22 Morales, 415 U.S. at Id. 24 United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006). 25 Id. 26 Id. 27 See generally Petition for Writ of Certiorari at 9, Peugh v. United States, 569 U.S. 1 (2013) (No ), Jul. 16, Peugh, 569 U.S. at Id. at 2. 14

15 30 United States v. Peugh, 675 F.3d 736, 738 (7th Cir. 2012). 31 Peugh, 561 U.S. at Id. at Id. at Petition for Writ of Certiorari, supra note 27, at 17 (explaining that district court s lack of independent analysis before deferring to 2009 Guidelines illustrates how Peugh inevitably incurred a longer sentence than he likely would have under the Guidelines at the time of the offense). 35 Peugh, 675 F.3d at See generally Peugh, 569 U.S. at Id. at 4 ( Prior to 1984, the broad discretion of sentencing courts and parole officers had led to significant sentencing disparities among similarly situated offenders. ). 38 Id.; see also Booker, 543 U.S. at Id. at 8; see also Garner, 529 U.S. at Id. at Id. at 9 ( Miller thus establishes that applying amended sentencing guidelines that increase a defendant s recommended sentence can violate the Ex Post Factor Clause, notwithstanding the fact that sentencing courts possess discretion to deviate from the recommended sentencing range. ); see also Miller, 482 U.S. at Brief of Petitioner at 38-41, Peugh v. United States, 596 U.S. 1 (2013) (No ), Dec. 26, 2012; see also Peugh, 569 U.S. at Peugh, 569 U.S. at 2 (Thomas, J., dissenting). 44 Id. at 7. 15

16 45 Dillon, supra note 16, at 1037; see also Garner, 529 U.S. at Id. at 1070 (quoting Garner, 529 U.S. at , ). 47 See Brief of Petitioner, supra note 42, at 14 ( The question is determined by the practical operation and objective effect of the new law, in the context of the sentencing system as a whole. ); see also Dillon supra note 17, at 1066 n.185 ( Likewise in Weaver v. Graham the Court recognized that it is the effect, not the form, of the law that determines whether it is ex post facto ). 48 See Garner, 529 U.S. at See generally Gall, 552 U.S. at Id. at Id. at Petition for Writ of Certiorari, supra note 27, at 13 (citing United States v. Wetherald, 636 F.3d 1315, 1321 (11th Cir. 2010)). 53 Brief of Petitioner, supra note 42, at 24 (citing United States v. Turner, 548 F.3d 1094, 1099 (D.C. Cir. 2008)). 54 Booker, 543 U.S. at (noting that characteristics of the post-booker era include the continuation of [moving] sentencing in Congress preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility to individualize sentences where necessary ); see also Petition for Writ of Certiorari, supra note 27, at Brief of Petitioner, supra note 42, at Id. at 16; see also Miller, 482 U.S. at

17 57 See Brief of Petitioner, supra note 42, at 25 ( [J]udges are more likely to sentence within the Guidelines in order to avoid the increased scrutiny that is likely to result from imposing a sentence outside the Guidelines. (citing Turner, 548 F.3d at 1099)). 58 Holley, supra note 18, at 534; see also Dillon, supra note 17, at 1080 ( In the average, run-ofthe-mill case, the Sentencing Guidelines are just as mandatory as ever. (quoting Graham C. Mullen & J.P. Davis, Mandatory Guidelines: The Oxymoronic State of Sentencing After United States v. Booker, 41 U. RICH. L. REV. 625, 641 (2007))). 59 Morales, 415 U.S. at Peugh, 569 U.S. at 15; see also Lindsey, 301 U.S. at ( It is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control ). 61 See generally Booker, 543 U.S. 272 (Stevens, J., dissenting in part). 62 Booker, 543 U.S. at Holley, supra note 18, at 537 (citing Booker, 543 U.S. at 313 (Scalia, J., dissenting)). 64 Peugh, 569 U.S. at 8 (Thomas, J., dissenting). 65 Dillon, supra note 17, at M. Jackson Jones, Esq., M.S., The United States Sentencing Guidelines Are Not Law!: Establishing the Reasons United States Sentencing Guidelines and Ex Post Facto Clause Should Never Be Used in the Same Sentence, 32 U. LA VERNE L. REV. 7, 40 (2010). 67 Holley, supra note 18, at See Demaree, 459 F.3d at United States v. Lewis, 606 F.3d 193, 205 (2010) (Goodwin, C.J., concurring in part and dissenting in part) ( [T]he majority necessarily concludes that the Guidelines are more of a 17

18 requirement for district courts to follow than advice to be considered [and] thus gives more weight to the Guidelines than the Sixth Amendment permits. ). 70 Gall, 552 U.S. at See Lewis, 606 F.3d at 206 (citing United States v. Raby, 575 F.3d 376, 381 (4th Cir. 2006)); see generally Brief for the United States at 35, Peugh v. United States, 569 U.S. 1 (2013) (No ), Jan. 25, 2013 (noting that sentencing courts cannot be compelled to give the Guidelines substantive deference). 72 Dillon, supra note 17, at 1054 (citing Kyle v. Lindsay, No. 3: , 2007 WL , at *3 (M.D. Pa. May 15, 2007) (Mannion, Mag.)). 73 Id. 74 Id. at 1045; see also Peugh, 569 U.S. at 7 (citing Collins v. Youngblood, 497 U.S. 37, 41 (1990)) WILLIAM BLACKSTONE, COMMENTARIES * Calder, 3 U.S. at Demaree, 459 F.3d at Peugh, 569 U.S. at 13 ( The Clause ensures that individuals have fair warning of applicable laws and guards against vindictive legislative action. ). 79 Id. at Id. at Id. at 10 (Thomas, J., dissenting) ( As the author of Morales, failure to apply the original meaning [of the Ex Post Facto Clause] was an error to which I succumbed. ). 82 Jones, supra note 66, at Dillon, supra note 17, at

19 84 Booker, 543 U.S. at 222; see also Gall, 552 U.S. at Dillon, supra note 17, at 1043 (citing United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006)). 86 Garner, 529 U.S. at 253 ( The presence of discretion does not displace protections of the Ex Post Facto Clause, however. ). 87 Peugh, 569 U.S. at 10 ( [Miller s] reason-giving requirements and standards of appellate review meant that while variation was possible, it was burdensome; and so in the ordinary case, a defendant would receive a within-guideline sentence. ); see also Dillon, supra 16, at 1095 n Dillon, supra note 17, at 1075 (citing Fletcher v. Reilly, 433 F.3d 867, 876 (D.C. Cir. 2006)). 89 Peugh, 569 U.S. at 9 ( The most relevant of our prior decisions for assessing whether the requisite degree of risk is present here is Miller v. Florida ); see also Holley, supra note 18, at Miller, 482 U.S. at Id. at 435; see also Peugh, 569 U.S. at See generally Jones, supra note 66, at Peugh, 569 U.S. at 3-4 (Thomas, J., dissenting) (explaining that the Guidelines do not hinder judges discretion, but ensures courts consider the correct variations before exercising their discretion ). 94 Id. at See generally id. 96 United States v. Ortiz, 621 F.3d 82, 86 (2d Cir. 2010) (noting that application of the Ex Post Facto Clause has divided the appellate courts). 19

20 97 Petition for Writ of Certiorari, supra note 27, at Demaree, 459 F.3d at 794. I hereby certify that I have completed this submission in accordance with the Competition rules and in accordance with the collaboration and academic integrity requirements of the University of Miami School of Law Honor Code. Signed,