Unworkable Jurisprudence or New Way Forward? Justice Thomas v. Justice Sotomayor in Peugh v. United States. I. Introduction

Unworkable Jurisprudence or New Way Forward? Justice Thomas v. Justice Sotomayor in Peugh v. United States I. Introduction Nothing is guaranteed in life is a cliché worthy of motherly advice and morning talk banter. Our actions often have unpredictable results at odds with our plans and expectations. When we complain about this to others, the response, more likely than not, is a variation on the maddening tough luck. But no democracy s system of justice can be based on the proverbial life isn t fair. Arbitrariness in the law is not tolerated, at least in theory, even with respect to wrongdoers. Indeed, under the Constitution, even those contemplating criminal mischief are entitled to know the consequences of their evil deeds with some certainty. We recognize that statutes specifying punishments for crimes provide citizens with notice and fair warning of the legal consequences of such actions. This purpose behind such statutes is cherished by our Constitution, which prohibits Congress from passing ex post facto laws. 1 Two radically different views of this prohibition s reach, both of which seem to question accepted jurisprudence on the topic, are found in the recent case decided by the United States Supreme Court, Peugh v. United States. 2 In Peugh, the Supreme Court decided, 5-4, in an opinion authored by Justice Sotomayor, that an amendment to the Federal Sentencing Guidelines that increased the guideline range for a crime cannot be applied to a crime committed prior to the amendment. 3 Such an application, according to the Court, would violate the Ex Post Facto Clause of the Constitution. 4 The Peugh case is especially interesting because both Justice Sotomayor and Justice Thomas include their personal imprints on the opinion, not shared by the majority of the Court, highlighting their distinct philosophies with respect to the Ex Post Facto Clause. In Peugh, 1

Justice Sotomayor remains true to her reputation as a practical, empirically-minded judge. But she also makes startling statements with the potential to radically expand the reach of the Ex Post Facto Clause and even to upend the Court s conception of its purpose. Justice Thomas, on the other hand, advocates a wholesale return to a narrow, formalistic conception of the Ex Post Facto Clause. This note argues that the opinions of Justice Thomas and Justice Sotomayor point to a potential upending of existing jurisprudence on the Ex Post Facto Clause. Part II of this note examines the history of Federal Sentencing Guidelines and gives a perspective on the development of ex post facto violations when a defendant receives a higher sentence. Part III presents an analysis of the majority and dissent opinions in Peugh. Part IV focuses on Sotomayor s and Thomas s opinions, highlighting the ways in which their reasoning could point to a new view of the Ex Post Facto Clause. II. Perspective A. Overview of Federal Sentencing Guidelines Before the Guidelines were conceived, district courts were given unfettered discretion to hand down sentences falling anywhere within the codified sentencing ranges set forth by Congress. 5 However, this lack of statutory or other type of guidance was perceived as a source of arbitrariness and unpredictability in sentencing outcomes. 6 Congress struggled with sentencing disparities for over a decade before enacting the Sentencing Reform Act of 1984, which expressly established the United States Sentencing Commission for the [p]urpose of promulgating a set of binding guidelines that would constrain the federal courts sentencing discretion into a much narrower range of permissible sentences. 7 The Sentencing Commission produced the United States Sentencing Guidelines and the first 2

edition went into effect in 1987. 8 By defining the parameters of the length of federal sentences, the Commission sought to restrict federal judges previously unlimited discretion in sentencing. 9 The Guidelines established categories of offenses and offender characteristics and devised appropriate sentence ranges for each category. The Guidelines contain a sentencing table that details a range of punishment based on a criminal s criminal history category and offense level. 10 The Guidelines Manual is regularly revised by the United States Sentencing Commission. 11 When first promulgated, the Sentencing Guidelines were mandatory. 12 However, the 2005 Supreme Court decision in United States v. Booker held that the Guidelines mandatory nature was unconstitutional under the Sixth Amendment. 13 In Booker, the Court held that the mandatory nature of the Guidelines forced judges to increase sentences based on certain facts, even when those facts were established by a preponderance of the evidence at a post-trial sentencing hearing. 14 The Court found that the mandatory nature of the Guidelines therefore constituted a violation of the Sixth Amendment, under which any fact that increases the punishment had to be submitted to the jury and proved beyond a reasonable doubt. 15 Inspired by Justice Breyer s majority opinion addressing the question of a remedy for the Sixth Amendment violation, 16 the Court rendered the Guidelines advisory rather than mandatory. 17 B. History of the Ex Post Facto Clause s Application to the Guidelines On several occasions, the Court has analyzed whether the Guidelines run afoul of the Constitution s Ex Post Facto Clause. The United States Constitution expressly states that both Congress 18 and the states 19 shall not pass any ex post facto law. An ex post facto law is one which either makes that a crime which was not a crime when the offense was committed, or which imposes a heavier sentence than that which was prescribed by law at that time. 20 During 3

the Revolutionary War, ex post facto laws were passed to a wide extent, [a]nd the evils resulting therefrom where supposed, in times of more cool reflection, to have far outweighed any imagined good. 21 The Ex Post Facto Clause was included in the Constitution to prevent the government from using bills of attainder and bills of pains and penalties. 22 The Supreme Court s modern understanding of the Ex Post Facto Clause is significantly based on Justice Chase s seriatim opinion in the 1798 case of Calder v. Bull. 23 Calder established four categories of impermissible ex post facto laws, including laws that increase the punishment of a crime after it is committed. 24 Justice Chase notably described that the Ex Post Facto Clause prohibits the government from chang[ing] the punishment, and inflict[ing] a greater punishment, than the law annexed to the crime, when committed. 25 Ultimately, as summarized by a modern commentator, the ban on ex post facto laws is designed to promote basic fairness by preventing the government from changing the law midway through a criminal case when the new law will result in more severe punishment. 26 One of the earliest Supreme Court cases examining the Ex Post Facto Clause application to sentencing laws came in 1937 with Lindsey v. Washington. 27 In this case, Justice Stone struck down California s retroactive application of an increase in the maximum statutory punishment for grand larceny because [t]he Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer. 28 According to the Court, the length of the sentence actually imposed was immaterial since the actual measure of punishment prescribed by the later statute was more severe than that of the earlier. 29 This measure of punishment rule served as controlling precedent when the Guidelines first made their appearance, effectively structuring the measurement of punishments and altering those measurements when revised. 4

The 1995 opinion of Cal. Dep t of Corrs. v. Morales, authored by Justice Thomas, set forth the Court s modern view of the Ex Post Facto Clause. 30 In determining whether an amended California statute violated the Ex Post Facto Clause, the Court stated that the test is whether the statute produces a sufficient risk of increasing the measure of punishment attached to the covered crimes. 31 In upholding the law under consideration, the Court held that the California statute under consideration creat[ed] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes. 32 Thus, because the statute did not create a sufficient risk of retroactively increasing the measure of punishment, the Court held that it did not violate the Ex Post Facto Clause. 33 III. Peugh v. United States A. Background Following Morales, Peugh was the Court s latest ruling on the application of the Ex Post Facto Clause to the Guidelines. Peugh involved two defendants who were accused of bank fraud and other financial crimes. 34 In 2010, Defendant Peugh was convicted of five counts of bank fraud under 18 U.S.C. 1344 35 for acts that took place in 1999-2000. The dispute arose over whether the District Court should have applied the 1998 Sentencing Guidelines effective when Defendant Peugh committed the underlying criminal acts or the 2009 Sentencing Guidelines effective when Peugh was convicted. 36 The 2009 Guidelines [y]ielded a sentencing range of 70 to 87 months, which is 33 to 41 months higher than the 1998 Guidelines range. 37 At sentencing, the District Court rejected Peugh s argument that using the newer 2009 Guidelines violated the Ex Post Facto Clause because they resulted in a longer sentence not authorized at the time of the offense. 38 After being sentenced to seventy months, Peugh appealed 5

to the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit relied on its decision in United States v. Demaree, 39 where it held that use of later Sentencing Guidelines presented no Ex Post Facto Clause problem. By using the reasoning of Demaree, the Seventh Circuit found that the 2009 Guidelines were merely advisory. The Seventh Circuit rejected Peugh s ex post facto claim and affirmed his conviction and sentence. 40 The Supreme Court granted certiorari. Before the Supreme Court, Peugh claimed that there was an Ex Post Facto Clause violation because the 2009 Guidelines call for a greater punishment than the 1998 Guidelines in effect when his crimes were completed. 41 The Government countered by arguing that because the 2009 Guidelines at Peugh s sentencing were only advisory, and constituted merely the Sentencing Commission s most up-to-date, non-binding advice about best practices in federal sentencing, there was no violation of the Ex Post Facto Clause. 42 B. Majority Opinion Writing for the majority, Sotomayor held that there was a violation of the Ex Post Facto Clause. 43 Sotomayor adopts the Morales significant risk test 44 under which the touchstone of the 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. 45 Although the Morales test may not be quite the exercise in judicial intuition that it is called by the dissent, it is necessarily factdriven and not conducive to consistent, bright-line application. By upholding the Morales test, Justice Sotomayor endorses a practical, case-by-case jurisprudence, which would be derided by purists like Thomas and Scalia. Sotomayor s opinion spends quite some time analyzing the nature of the Sentencing Guidelines. 46 Even though the Federal Guidelines are not binding, they are the starting point for 6

the sentence. 47 As described by Justice Sotomayor, [t]he post-booker federal sentencing scheme aims to achieve uniformity by ensuring that sentencing decisions are anchored by the Guidelines.... 48 Although the Guidelines are advisory, District Courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process; failure to calculate the correct Guidelines range within which the District Court exercises its discretion constitutes procedural error and a district court contemplating a non-guidelines sentence must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. 49 In response to the government s claim that the 2009 Guidelines are only advisory and therefore not the types of rules or laws whose ex post facto effect can even be analyzed, 50 Sotomayor makes clear that [t]he presence of discretion does not displace the protections of the Ex Post Facto Clause. 51 For Sotomayor, a former Second Circuit Judge noted for her practical jurisprudence, 52 what matters is not so much the legal status or impact of the Guidelines but rather how the Guidelines function in the real world. Sotomayor holds that, regardless of their advisory nature, the Guidelines are in practice treated as compelling authority by the courts, and are therefore the types of rules to which the Ex Post Facto Clause should apply. 53 Sotomayor refers to post-booker sentencing data evidencing that less than twenty percent of federal sentences result in outside-guidelines sentences (other than on government motion), and that sentences for the same crime tend to go up when the Guidelines range is increased. 54 Sotomayor then concludes: 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 sentence to constitute an ex post facto violation. 55 7

Therefore, Peugh s case falls within Calder s definition of ex post facto violations because [T]he Ex Post Facto Clause forbids the [government] to enhance the measure of punishment by altering the substantive formula used to calculate the applicable sentencing range. 56 According to the majority, this is what the 2009 Guidelines did in Peugh s case. C. Dissent Justice Thomas s dissent, joined by the Chief Justice and Justices Scalia and Alito, 57 does not dramatically contest the majority s view of federal sentencing reality. Thomas recognizes that the guidelines do influence the sentences imposed by judges. 58 However, the Guidelines do not meaningfully constrain a judge s discretion, but as advisory standards, are rather flexible guideposts which inform a judge s discretion. 59 Therefore, says the dissent, they do not present a sufficient risk of a harsher sentence for ex post facto purposes. 60 And, to the extent that the amended Guidelines create a risk that a defendant might receive a harsher punishment, that risk results from the Guidelines persuasive force, not any legal effect. 61 Thus, the Guidelines do not violate the Ex Post Facto Clause under the significant risk test. IV. Thomas and Sotomayor -- Beyond Significant Risk? While there is enough language in Peugh s majority and dissent opinions to suggest that the Court is committed to applying the Morales significant risk test, the opinions of both Justices Thomas and especially, Justice Sotomayor, may point to new future developments in the Court s Ex Post Facto Clause jurisprudence. A. Thomas s Lone Dissent In the part of the dissent not joined by his fellow dissenters, 62 Thomas makes clear that he would reformulate the Ex Post Facto Clause doctrine with regard to criminal punishments, believing that Peugh demonstrates the unworkability of our ex post facto jurisprudence. 63 8

Thomas characterizes the Morales significant risk test as little more than exercise in judicial intuition. 64 Ironically, Thomas takes credit for part of the Court s failure to adhere to this Originalist understanding of the clause. Thomas honestly admits, that as the author of Morales, his failure to apply the original meaning was an error to which [he] succumbed. 65 Seeking to scrap the significant risk test and adhere to more Originalist views, Thomas believes in a return to the original meaning of the [ex post facto] Clause as stated in Justice Chase s classic Calder formulation, under which laws of this sort are ex post facto only when they are retroactively increase the punishment annexed to the crime. 66 Thomas is less bothered by the burdens imposed by Sotomayor s empiricist approach and rather believes that the sufficient risk test wrongly focuses on the risk of a particular sentence that the defendant might receive, instead of the punishment, or the statute, which is annexed to the crime. 67 Thomas distinguishes between a discretionary increase in punishment, which merely create[s] a risk of increased punishment, 68 and a law that increases punishment. The latter is subject to ex post facto protection. However, the former, is a mere legal change which can alter the likelihood of a sentence. In Thomas s eyes, because the possible statutory maximum punishment applicable to Peugh never changed, new advisory Guidelines, which merely provide a risk of an increased length of imprisonment within the statutory range, cannot be ex post facto laws. Thomas is concerned about the statute that attaches to the defendant s particular crime. In Peugh s case, the statue, 18 U.S.C. 1344, prescribes a sentence of not more than 30 years for bank fraud. Regardless of changing Sentencing Guidelines, that statute remained the same in the period between Peugh s crime and conviction. 69 According to Thomas, Peugh was not the victim of an ex post facto law, because at all times, he knew that he would be sentenced within the range 9

affixed to his offense by statute. 70 The courts practice in sentencing defendants for bank fraud is simply irrelevant to Thomas. Times may change, judicial practice may become more or less lenient, but as long as the underlying statutory sentence remains the same, the Ex Post Facto Clause is not triggered. Thomas s approach would narrow the Court s ex post facto purview to the days of Calder, when statutes, and not judicial practice, mattered in the ex post facto context. Yet Thomas s view of history undermines his own reasoning. In that view, in the day of Calder, the criminal law generally prescribed a particular sentence for each offense. 71 The bright line rule of Calder seems better suited to the eighteenth century, when judicial discretion was less of a factor in sentencing and punishments were spelled out by statutes. In today s world, when statutes such as 18 U.S.C. 1344 impose a ceiling on punishments, but it is up to the Sentencing Guidelines to regulate judicial discretion in applying sentences, the formalism of Calder is out of date. B. Sotomayor s Perspective In the part of the majority Opinion as to which a majority of the Justices did not sign on, Part III(C), Justice Sotomayor pushes the envelope further by suggesting that the Ex Post Facto Clause is not limited to protecting traditional expectation interests. In footnote six, Justice Sotomayor concedes, that the Clause is not a doctrine unto itself. 72 Sotomayor finds that [e]ven where [reliance] concerns are not directly implicated... the [Ex Post Facto] Clause also safeguards a fundamental fairness interest... in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life. 73 The Clause is not limited to legislative acts and does not merely protect reliance interests. 74 The Clause reflects the basic principles of fairness that animate the Ex Post Facto Clause. 75 Like Thomas, Sotomayor takes the reader back 10

to the time of Calder by showing that 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. 76 Unlike Thomas, Sotomayor believes that even where these concerns are not directly implicated, the Clause still safeguards a fundamental fairness interest. While the contours of the fundamental fairness interest hinted by Sotomayor are unclear, some indication of what they entail is provided by Sotomayor s analysis of Miller v. Florida 77 as part of the majority opinion. To bolster the argument that the Sentencing Guidelines advisory nature is insufficient to place them out of reach of the Ex Post Facto Clause, Sotomayor drew support from Miller, in which the Supreme Court of Florida invalidated Florida s state sentencing guidelines after finding that they violated the Ex Post Facto Clause. 78 The Florida sentencing scheme at issue mandated that a sentence that fell within the range specified by the guidelines required no explanation and was unreviewable, while a deviation from the guidelines required the judge to provide clear and convincing reasons in writing for the departure 79 and the sentence was then reviewable on appeal. 80 The Supreme Court of Florida found that the Florida system, with its procedural obstacles to the imposition of a sentence outside the guidelines, created a significant risk that a defendant would receive a higher sentence and invalidated it. 81 Sotomayor boldly concludes that the same principles apply to the Federal Guidelines and the difference between the federal [Guidelines] and the scheme the Court considered in Miller is one in degree, not in kind. 82 Sotomayor s reasoning here is inconsistent because the Morales significant risk test reaffirmed by the Court is precisely concerned with such differences in degree, degrees of risk, that Sotomayor seems to dismiss as irrelevant. Without realizing it, Sotomayor appears to be on the verge of holding that essentially any system of advisory rules of 11

a kind that makes one outcome more likely than another, no matter how slightly, falls under the purview of the Ex Post Facto Clause. This, to borrow Justice Thomas s phrase, is either an exercise of judicial intuition 83 or an expansion of the Morales test beyond all recognition. It is also possible that for Sotomayor, what is at stake here is not so much a defendant s expectation interest and the significant risk of a harsher punishment that a retroactive rule can impose. Instead, the very change in the rules, no matter their effect, is a strike against the fundamental fairness interest in having the government abide by the rules it establishes in the criminal law context. Although vague, Sotomayor s fundamental fairness interest may point to a future scrapping of the significant risk test and a move toward a more expansive application of the Ex Post Facto Clause. This application would consider any retroactive change in the criminal law, no matter how mild its effect, as a violation of the Ex Post Facto Clause. Whether this decision will lead to dramatic reductions in sentences for defendants remains to be seen. 84 V. Conclusion While the result of the case is clear that Peugh is entitled to be resentenced under rules that were in effect when his crime was committed the specific rules which govern ex post facto claims remains less clear. Interestingly, although on opposite sides of the Court s ideological spectrum, Justices Sotomayor and Thomas both appear skeptical of the significant risk test. While Justice Thomas seeks an Originalist narrowing of the law s understanding of the expectation interest, Justice Sotomayor seeks a possible departure from that interest, which could radically expand the application of the Ex Post Facto Clause. Whether Sotomayor s or Thomas s opinions will lead to a fundamental rethinking of significant risks remains to be seen. In the meantime, potential criminals can consult the current version of the Sentencing Guidelines and rest assured that it will play a major role in their eventual sentencing. 12

1 U.S. CONST. art. I, 9, cl. 3 ( No... ex post facto Law shall be passed. ). 2 Peugh v. United States, 569 U.S. 1, 12 (2013) (No. 12-62) (5-4 decision) (Sotomayor, J.) 3 Id. 4 Id. 5 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, 1039 (2008) (quoting Douglas A. Berman, Conceptualizing Booker, 38 ARIZ. ST. L.J. 387, 389 (2006) (citation omitted)). 6 Dillon, supra note 1, at 1039-40. 7 Id. at 1040. 8 Id. 9 Id. 10 U.S. SENTENCING GUIDELINES MANUAL 402, sentencing table (2009). 11 Benjamin Holley, The Constitutionality of Post-Crime Guidelines Sentencing, 37 WM. MITCHELL L. REV. 533, 535 (2010-2011). 12 Id. 13 See United States v. Booker, 543 U.S. 220, 232-35 (2005) (Stevens, J., opinion of the Court in part) (discussing the Sixth Amendment s implications on the issue of whether the Federal Guidelines were mandatory). 14 Id. at 233. 15 See id. at 235. 16 Id. at 246 (Breyer, J., opinion of the Court in part). 17 See id. at 245. 13

18 U.S. CONST. art. I, 9, cl. 3 ( No... ex post facto Law shall be passed. ). 19 U.S. CONST. art. I, 10, cl. 1 ( No State shall... pass any... ex post facto law.... ). 20 2 JUDICIAL AND STATUTORY DEFINITIONS OF WORDS AND PHRASES 360 (National Reporter System et. al. eds., 1914). 21 3 JOSEPH STORY, COMMENTARIES OF THE UNITED STATES WITH A PRELIMINARY REVIEW OF THE CONSTITUTIONAL HISTORY OF THE COLONIES AND STATES, BEFORE THE ADOPTION OF THE CONSTITUTION 239 (Billard, Gray, and Company ed., 1833). 22 M. Jackson Jones, 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. 8, 11 (2010-2011). 23 Calder v. Bull, 3 U.S. 386, 390 (1798) (opinion of Chase, J.). 24 Id. at 390-91 (describing four types of laws which classify as ex post facto laws). 25 Id. 26 Warren Richey, Supreme Court rules in dispute over federal sentencing guidelines, THE CHRISTIAN SCIENCE MONITOR, June 10, 2013, http://www.csmonitor.com/usa/justice/2012/061 0/Supreme-Court-rules-in-dispute-over-federal-sentencing-guidelines (discussing how Peugh was entitled to be sentenced under a version of sentencing guidelines in effect at the time he committed bank fraud). 27 Lindsey v. Washington, 301 U.S. 397, 401 (1937). 28 Id. 29 Id. 30 See Cal. Dep t of Corrs. v. Morales, 514 U.S. 499, 514 (1995). 31 Id. at 509. 14

32 Id. 33 Id. 34 Peugh v. United States, 569 U.S. 1, 1 (2013) (No. 12-62) (5-4 decision) (Sotomayor, J.); see generally Robert Barnes, 5-4 high court bars retroactive use of sentencing criteria, WASH. POST, June 11, 2003, at A03. 35 See 18 U.S.C. 1344 (2006). 36 Brief of Petitioner at 9, Peugh v. United States, 569 U.S. 1, No. 12-62 (December 26, 2012). 37 Id. at 11. 38 Liptuck, supra note 56. 39 See United States v. Demaree, 459 F.3d 791, 795 (7d Cir. 2006) (holding the ex post facto clause should apply only to laws and regulations that bind rather than advise (citations omitted)). 40 United States v. Peugh, 675 F.3d 736, 739 (7d Cir. 2012). 41 Brief of Petitioner at 9, Peugh v. United States, 569 U.S. 1, No. 12-62 (2013) (Dec. 26, 2012). 42 Brief for the United States at 9, Peugh v. United States, 569 U.S. 1, No. 12-62 (January 25, 2013). 43 Id. at 19. 44 Peugh v. United States, 569 U.S. 1, 8 (2013) (No. 12-62) (5-4 decision) (Sotomayor, J.); see also Garner v. Jones, 529 U.S. 244, 250 (2000). 45 Id. 46 Peugh, 569 U.S. at 7-10 (Sotomayor, J.). 47 Id. at 10. 48 Id. 15

49 Id. 50 United States v. Booker, 543 U.S. 220, 220 (2005). 51 Peugh, 569 U.S. at 16 (Sotomayor, J.) (quoting Garner v. Jones, 529 U.S. 244, 250 (2000)). 52 See United States v. Ortiz, 621 F.3d 82, 83 (2d Cir. 2010) (noting Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. ). 53 Peugh, 569 U.S. at 12 (Sotomayor, J.). 54 See id. at 12-13. 55 Id. 56 Id. at 19 (quoting Cal. Dep t of Corrs. v. Morales, 514 U.S. 499, 505 (1995)). 57 Peugh v. United States, 569 U.S. 1, 1 (2013) (No. 12-62) (5-4 decision) (Thomas, J., dissenting). 58 Id. at 6. 59 Id. 60 Id. 61 Id. at 2. 62 Peugh, 569 U.S. at 9-13 (Thomas, J., dissenting). 63 Id. at 9. 64 Id. 65 Id. at 10 ( As the author of Morales, failure to apply the original meaning was an error to which I succumbed. ). 66 Id. at 9 (quoting Calder v. Bull, 3 U.S. 386, 390 (1798) (opinion of Chase, J.)). 67 Peugh, 569 U.S. at 10 (Thomas, J., dissenting). 16

68 Id. at 13. 69 Compare 18 U.S.C. 1344 (1994) (prescribing a sentence of not more than 30 years for bank fraud), with 18 U.S.C. 1344 (2006) (prescribing a sentence of not more than 30 years for bank fraud). 70 Peugh, 569 U.S. at 13 (Thomas, J., dissenting). 71 Id. at 12. 72 Id. at 15 n.6 (Sotomayor, J.) ( Of course, while the principles 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. ). 73 Id. at 13-14. 74 Id. at 14; see Garner v. Jones, 529 U.S. 244, 257 (2000) (recognizing that a change in a parole board s rules could, given an adequate showing, run afoul of the ex post facto clause) 75 Peugh, 569 U.S. at 13 (Sotomayor, J.). 76 Id. at 13 (quoting THE FEDERALIST NO. 44, 282 (James Madison)). 77 Miller v. Florida, 482 U.S. 423, 435-36 (Fla. 1987). 78 Peugh, 569 U.S. at 9-10 (Sotomayor, J.). 79 Miller, 482 U.S. at 423. 80 Id. 81 Id. at 435. 82 Peugh, 569 U.S. at 16 (Sotomayor, J.). 83 Peugh, 569 U.S. at 9 (Thomas, J., dissenting). 84 Rodger A. Heaton, Courts Must Use Sentencing Guidelines in Effect at the Time of the Offense, Not at Time of Sentencing, WHITE COLLAR CRIME & INTERNAL INVESTIGATIONS BLOG 17

(June 11, 2013), http://www.thewhitecollarblog.com/2013/06/11/courts-must-use-sentencingguidelines-in-effect-at-the-time-of-the-offense-not-at-time-of-sentecing/. 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. 18