peugh
argued
february
decided
june
petitioner
peugh
convicted
five
counts
bank
fraud
conduct
occurred
sentencing
argued
ex
post
facto
clause
required
sentenced
version
federal
sentencing
guidelines
effect
time
offenses
rather
version
effect
time
sentencing
guidelines
peugh
sentencing
range
months
guidelines
assigned
severe
consequences
acts
yielding
range
months
district
rejected
peugh
ex
post
facto
claim
sentenced
months
imprisonment
seventh
circuit
affirmed
held
judgment
reversed
case
remanded
reversed
remanded
justice
sotomayor
delivered
opinion
except
part
concluding
ex
post
facto
clause
violated
defendant
sentenced
guidelines
promulgated
committed
criminal
acts
new
version
provides
higher
sentencing
range
version
place
time
offense
pp
though
longer
mandatory
see
booker
guidelines
still
play
important
role
sentencing
procedures
district
must
begin
correctly
calculating
applicable
guidelines
range
gall
consider
parties
arguments
factors
specified
may
presume
guidelines
range
reasonable
must
explain
basis
sentence
record
ibid
appeal
sentence
reviewed
reasonableness
standard
district
apply
guidelines
effect
date
defendant
sentenced
ii
per
guidelines
use
guidelines
effect
date
offense
committed
guidelines
effect
sentencing
date
found
violate
ex
post
facto
clause
pp
constitution
forbids
passage
ex
post
facto
laws
category
including
relevant
law
changes
punishment
inflicts
greater
punishment
law
annexed
crime
committed
calder
bull
dall
scope
latin
phrase
given
substance
accretion
case
law
dobbert
florida
touchstone
inquiry
whether
given
change
law
presents
risk
increasing
measure
punishment
attached
covered
crimes
garner
jones
pp
relevant
prior
decision
miller
florida
found
ex
post
facto
violation
petitioner
sentenced
florida
new
sentencing
guidelines
yielded
higher
sentencing
range
guidelines
place
time
crime
guidelines
required
sentencing
judge
provide
clear
convincing
reasons
writing
departure
sentence
reviewable
appeal
new
guidelines
sentence
within
guidelines
range
required
explanation
unreviewable
variation
sentence
though
possible
burdensome
ordinary
case
defendant
receive
sentence
thus
increasing
applicable
guidelines
range
created
significant
risk
higher
sentence
principles
apply
federal
sentencing
scheme
aims
achieve
uniformity
ensuring
sentencing
decisions
anchored
guidelines
normally
judge
use
guidelines
range
starting
point
analysis
impose
sentence
within
range
freeman
may
impose
sentence
outside
range
deprive
guidelines
force
framework
sentencing
uniformity
also
promoted
appellate
review
reasonableness
guidelines
benchmark
appellate
courts
may
presume
sentence
reasonable
see
rita
may
consider
extent
deviation
guidelines
part
reasonableness
review
gall
sentencing
regime
also
puts
place
procedural
hurdles
practice
make
imposition
sentence
less
likely
florida
scheme
federal
regime
differ
differences
dispositive
common
sense
indicates
federal
system
generally
steer
district
courts
sentences
considerable
empirical
evidence
suggests
guidelines
effect
retrospective
increase
applicable
guidelines
range
thus
creates
sufficient
risk
higher
sentence
constitute
ex
post
facto
violation
pp
government
contrary
arguments
unpersuasive
principal
claim
sentencing
guidelines
lack
sufficient
legal
effect
attain
status
law
within
meaning
ex
post
facto
clause
changes
law
need
bind
sentencing
authority
ex
post
facto
violation
presence
discretion
displace
protections
clause
garner
contrasts
federal
guidelines
florida
system
miller
difference
two
systems
one
degree
kind
attributes
sentencing
fail
show
guidelines
one
among
many
persuasive
sources
sentencing
may
consult
making
decision
recognizing
ex
post
facto
violation
consistent
sixth
amendment
cases
sixth
amendment
cases
focus
given
finding
fact
required
make
defendant
legally
eligible
severe
penalty
distinct
ex
post
facto
cases
focus
whether
change
law
creates
significant
risk
higher
sentence
booker
remedy
designed
subsequently
calibrated
exploit
precisely
distinction
promoting
sentencing
uniformity
avoiding
sixth
amendment
violation
nothing
case
undoes
holdings
cases
booker
rita
gall
pp
sotomayor
delivered
opinion
except
part
ginsburg
breyer
kagan
joined
opinion
full
kennedy
joined
except
part
thomas
filed
dissenting
opinion
roberts
scalia
alito
joined
parts
alito
filed
dissenting
opinion
scalia
joined
opinion
notice
opinion
subject
formal
revision
publication
preliminary
print
reports
readers
requested
notify
reporter
decisions
washington
typographical
formal
errors
order
corrections
may
made
preliminary
print
goes
press
marvin
peugh
petitioner
writ
certiorari
appeals
seventh
circuit
june
justice
sotomayor
delivered
opinion
except
part
constitution
forbids
passage
ex
post
facto
laws
category
includes
law
changes
punishment
inflicts
greater
punishment
law
annexed
crime
committed
calder
bull
dall
emphasis
deleted
sentencing
guidelines
set
forth
advisory
sentencing
range
defendant
convicted
federal
consider
whether
ex
post
facto
violation
defendant
sentenced
guidelines
promulgated
committed
criminal
acts
new
version
provides
higher
applicable
guidelines
sentencing
range
version
place
time
offense
hold
petitioner
marvin
peugh
cousin
steven
hollewell
ran
two
businesses
illinois
grainery
bought
stored
sold
grain
provided
farming
services
landowners
tenants
grainery
began
experiencing
problems
peugh
hollewell
engaged
two
fraudulent
schemes
first
obtained
series
bank
loans
representing
falsely
existence
contracts
future
grain
deliveries
grainery
failed
pay
back
principal
loans
bank
suffered
losses
million
second
artificially
inflated
balances
accounts
control
check
kiting
writing
bad
checks
accounts
scheme
allowed
overdraw
account
engaged
illicit
conduct
acts
uncovered
peugh
hollewell
charged
nine
counts
bank
fraud
violation
hollewell
pleaded
guilty
one
count
check
kiting
peugh
pleaded
guilty
went
trial
testified
intended
defraud
banks
jury
found
guilty
five
counts
bank
fraud
acquitted
remaining
counts
sentencing
peugh
argued
ex
post
facto
clause
required
sentenced
version
federal
sentencing
guidelines
effect
time
offenses
rather
version
effect
time
sentencing
two
versions
yielded
significantly
different
results
peugh
applicable
guidelines
sentencing
range
guidelines
peugh
base
offense
level
sentencing
commission
guidelines
manual
ussg
thirteen
levels
added
loss
amount
million
levels
obstruction
justice
peugh
perjury
trial
see
ussg
total
offense
level
guidelines
therefore
offender
peugh
criminal
history
category
sentencing
range
guidelines
months
ussg
ch
pt
guidelines
effect
peugh
sentenced
may
assigned
severe
consequences
acts
first
base
offense
level
raised
crimes
like
peugh
statutory
maximum
term
imprisonment
years
see
ussg
second
enhancement
loss
exceeding
million
increase
guidelines
ussg
adding
enhancement
obstruction
justice
peugh
total
offense
level
guidelines
criminal
history
category
peugh
sentencing
range
rose
guidelines
months
ussg
ch
pt
low
end
guidelines
range
months
higher
high
end
guidelines
range
sentencing
hearing
district
rejected
peugh
argument
applying
guidelines
violated
ex
post
facto
clause
noting
foreclosed
seventh
circuit
precedent
app
discussing
demaree
district
declined
give
peugh
downward
variance
concluding
sentence
within
uideline
range
appropriate
sentence
case
app
sentenced
peugh
months
imprisonment
bottom
guidelines
range
seventh
circuit
keeping
decision
demaree
rejected
peugh
ex
post
facto
claim
affirmed
conviction
sentence
granted
certiorari
resolve
conflict
among
courts
appeals
whether
ex
post
facto
clause
may
violated
defendant
sentenced
version
sentencing
guidelines
effect
time
sentencing
rather
version
effect
time
crime
committed
newer
guidelines
yield
higher
applicable
sentencing
reverse
ii
prior
broad
discretion
sentencing
courts
parole
officers
led
significant
sentencing
disparities
among
similarly
situated
offenders
address
problem
congress
created
sentencing
commission
mistretta
sentencing
reform
act
stat
eliminated
parole
federal
system
directed
sentencing
commission
promulgate
uniform
guidelines
binding
federal
courts
sentencing
mistretta
commission
produced
familiar
sentencing
guidelines
system
set
inputs
specific
given
case
particular
characteristics
offense
offender
yielded
predetermined
output
range
months
within
defendant
sentenced
booker
however
held
mandatory
guidelines
ran
afoul
sixth
amendment
allowing
judges
find
facts
increased
penalty
crime
beyond
maximum
authorized
facts
established
plea
guilty
jury
verdict
see
also
apprendi
new
jersey
appropriate
remedy
violation
determined
strike
portions
sentencing
reform
act
rendered
guidelines
mandatory
booker
resulting
scheme
district
still
required
consult
guidelines
see
guidelines
longer
binding
district
must
consider
factors
set
forth
guide
discretion
sentencing
see
booker
booker
remedy
system
congress
enacted
designed
continue
move
sentencing
congress
preferred
direction
helping
avoid
excessive
sentencing
disparities
maintaining
flexibility
sufficient
individualize
sentences
necessary
subsequent
decisions
clarified
role
guidelines
play
sentencing
procedures
district
level
sentences
reviewed
appeal
first
district
begin
sentencing
proceedings
correctly
calculating
applicable
guidelines
range
matter
administration
secure
nationwide
consistency
guidelines
starting
point
initial
benchmark
gall
citation
omitted
district
must
consider
arguments
parties
factors
set
forth
district
may
presume
guidelines
range
reasonable
may
appropriate
cases
impose
sentence
based
disagreement
sentencing
commission
views
pepper
slip
citing
kimbrough
district
must
explain
basis
chosen
sentence
record
gall
major
departure
guidelines
supported
significant
justification
minor
one
ibid
appeal
district
sentence
reviewed
reasonableness
standard
see
booker
failure
calculate
correct
guidelines
range
constitutes
procedural
error
treating
guidelines
mandatory
gall
appeals
may
required
presume
sentence
reasonable
rita
reviewing
may
apply
heightened
standard
review
presumption
unreasonableness
sentences
outside
guidelines
range
although
course
take
account
totality
circumstances
including
extent
variance
guidelines
range
gall
indicated
district
decision
vary
advisory
guidelines
may
attract
greatest
respect
based
particular
facts
case
kimbrough
overall
system
requires
give
respectful
consideration
guidelines
permits
tailor
sentence
light
statutory
concerns
well
internal
quotation
marks
omitted
ii
district
courts
instructed
apply
sentencing
guidelines
issued
sentencing
commission
effect
date
defendant
sentenced
sentencing
guidelines
reiterate
statutory
directive
proviso
determines
use
guidelines
manual
effect
date
defendant
sentenced
violate
ost
acto
lause
constitution
shall
use
guidelines
manual
effect
date
offense
conviction
committed
ussg
whether
ex
post
facto
clause
violated
use
onerous
guidelines
effect
date
peugh
sentencing
question
presented
iii
constitution
prohibits
federal
state
governments
enacting
ex
post
facto
law
art
cl
art
phrase
post
facto
law
term
art
established
meaning
time
framing
collins
youngblood
calder
bull
justice
chase
reviewed
definition
term
acquired
english
common
law
every
law
makes
action
done
passing
law
innocent
done
criminal
punishes
action
every
law
aggravates
crime
makes
greater
committed
every
law
changes
punishment
inflicts
greater
punishment
law
annexed
crime
committed
every
law
alters
legal
rules
evidence
receives
less
different
testimony
law
required
time
commission
offence
order
convict
offender
emphasis
deleted
see
also
carmell
texas
discussing
calder
bull
understanding
term
building
justice
chase
formulation
constitutes
ex
post
facto
law
cases
attempted
precisely
delimit
scope
latin
phrase
instead
given
substance
accretion
case
law
dobbert
florida
issue
calder
third
category
ex
post
facto
laws
chang
punishment
inflic
greater
punishment
law
annexed
crime
committed
peugh
claim
clause
violated
guidelines
call
greater
punishment
attached
bank
fraud
crimes
completed
government
counters
punitive
guidelines
applied
peugh
sentencing
advisory
ex
post
facto
problem
parties
point
prior
decisions
lend
support
view
one
hand
never
accepted
proposition
law
must
increase
maximum
sentence
defendant
eligible
order
violate
ex
post
facto
clause
see
lindsey
washington
moreover
fact
sentencing
authority
exercises
measure
discretion
also
defeat
ex
post
facto
claim
see
garner
jones
hand
made
clear
mere
speculation
conjecture
change
law
retrospectively
increase
punishment
crime
suffice
establish
violation
ex
post
facto
clause
see
california
dept
corrections
morales
touchstone
inquiry
whether
given
change
law
presents
risk
increasing
measure
punishment
attached
covered
crimes
garner
quoting
morales
question
change
law
creates
risk
matter
degree
test
reduced
single
formula
internal
quotation
marks
omitted
relevant
prior
decisions
assessing
whether
requisite
degree
risk
present
miller
florida
considered
ex
post
facto
challenge
sentencing
guidelines
scheme
implemented
state
florida
florida
system
calculation
guidelines
yielded
presumptive
sentencing
range
range
assumed
appropriate
sentencing
judge
discretion
fix
sentence
within
range
requirement
written
explanation
ibid
quoting
rule
crim
proc
wished
depart
guidelines
range
however
required
give
clear
convincing
reasons
writing
sentence
unreviewable
sentence
subject
appellate
review
ibid
petitioner
miller
sentenced
new
guidelines
yielded
higher
sentencing
range
guidelines
place
time
crime
received
sentence
top
new
range
ibid
found
ex
post
facto
violation
emphasized
order
impose
petitioner
sentence
guidelines
sentencing
judge
required
provide
clear
convincing
reasons
writing
departure
sentence
reviewable
appeal
contrast
sentence
imposed
within
new
guidelines
range
required
explanation
unreviewable
fact
florida
guidelines
create
high
hurdle
must
cleared
discretion
exercised
sufficient
render
changed
guidelines
ex
post
facto
law
miller
thus
establishes
applying
amended
sentencing
guidelines
increase
defendant
recommended
sentence
violate
ex
post
facto
clause
notwithstanding
fact
sentencing
courts
possess
discretion
deviate
recommended
sentencing
range
sentencing
scheme
miller
designed
channel
sentences
similarly
situated
offenders
specified
range
requirements
standards
appellate
review
meant
variation
possible
burdensome
ordinary
case
defendant
receive
sentence
florida
system
therefore
increase
guidelines
range
applicable
offender
created
significant
risk
receive
higher
principles
apply
federal
sentencing
scheme
aims
achieve
uniformity
ensuring
sentencing
decisions
anchored
guidelines
remain
meaningful
benchmark
process
appellate
review
see
kimbrough
described
district
courts
must
begin
analysis
guidelines
remain
cognizant
throughout
sentencing
process
gall
emphasis
added
failing
calculate
correct
guidelines
range
constitutes
procedural
error
district
contemplating
sentence
must
consider
extent
deviation
ensure
justification
sufficiently
compelling
support
degree
variance
see
also
pepper
breyer
concurring
part
concurring
judgment
slip
law
permits
disregard
guidelines
citing
booker
requirements
mean
usual
sentencing
judge
use
guidelines
range
starting
point
analysis
impose
sentence
within
range
freeman
plurality
opinion
slip
even
sentencing
judge
sees
reason
vary
guidelines
judge
uses
sentencing
range
beginning
point
explain
decision
deviate
guidelines
real
sense
basis
sentence
ibid
emphasis
added
see
also
sotomayor
concurring
judgment
slip
stating
outside
context
federal
rule
criminal
procedure
plea
agreement
normal
course
district
judge
calculation
guidelines
range
applicable
charged
offenses
serve
basis
term
imprisonment
imposed
district
may
ultimately
sentence
given
defendant
outside
guidelines
range
deprive
guidelines
force
framework
sentencing
indeed
rule
incorrect
guidelines
calculation
procedural
error
ensures
remain
starting
point
every
sentencing
calculation
federal
system
similarly
appellate
review
reasonableness
using
guidelines
benchmark
helps
promote
uniformity
tend
ing
iron
sentencing
differences
booker
courts
appeals
may
presume
sentence
reasonable
see
rita
may
consider
extent
deviation
guidelines
part
reasonableness
review
gall
miller
sentencing
regime
puts
place
procedural
hurdle
practice
make
imposition
sentence
less
likely
see
difficult
case
miller
relevant
differences
florida
sentencing
scheme
current
federal
sentencing
regime
florida
legislature
made
sentence
unreviewable
whereas
federal
system
courts
appeals
may
required
presume
sentence
reasonable
florida
scheme
sentencing
departing
guideline
range
required
provide
clear
convincing
reasons
departure
whereas
applied
exacting
standard
review
variances
rather
held
district
varying
federal
guidelines
provide
explanation
adequate
extent
departure
see
gall
contrary
arguments
advanced
government
justice
thomas
dissent
hereinafter
dissent
see
brief
post
differences
dispositive
although
federal
system
procedural
rules
establish
gentler
checks
sentencing
discretion
florida
nevertheless
impose
series
requirements
sentencing
courts
cabin
exercise
discretion
common
sense
indicates
general
system
steer
district
courts
sentences
peugh
points
considerable
empirical
evidence
indicating
sentencing
guidelines
intended
effect
influencing
sentences
imposed
judges
even
booker
rendered
sentencing
guidelines
advisory
district
courts
vast
majority
cases
imposed
either
sentences
sentences
depart
downward
guidelines
government
motion
see
sentencing
commission
sourcebook
federal
sentencing
statistics
figure
ed
ussc
less
cases
since
district
courts
imposed
sentences
absent
government
motion
see
ibid
see
also
stith
booker
rules
rev
moreover
sentencing
commission
data
indicate
guidelines
range
moves
offenders
sentences
move
see
ussc
final
quarterly
data
report
fy
figure
ussc
report
continuing
impact
booker
federal
sentencing
pt
pp
federal
system
adopts
procedural
measures
intended
make
guidelines
lodestone
sentencing
retrospective
increase
guidelines
range
applicable
defendant
creates
sufficient
risk
higher
sentence
constitute
ex
post
facto
violation
holding
today
consistent
basic
principles
fairness
animate
ex
post
facto
clause
framers
considered
ex
post
facto
laws
contrary
first
principles
social
compact
every
principle
sound
legislation
federalist
rossiter
ed
madison
clause
ensures
individuals
fair
warning
applicable
laws
guards
vindictive
legislative
action
see
weaver
graham
see
also
post
even
concerns
directly
implicated
however
clause
also
safeguards
fundamental
fairness
interest
government
abide
rules
law
establishes
govern
deprive
person
liberty
life
carmell
sentencing
guidelines
represent
federal
government
authoritative
view
appropriate
sentences
specific
crimes
peugh
committed
crime
recommended
sentence
months
sentenced
months
purpose
effect
change
guidelines
calculation
increase
rates
length
incarceration
fraud
miller
citing
florida
bar
amendment
rules
criminal
procedure
sentencing
guidelines
per
curiam
internal
quotation
marks
alterations
omitted
retrospective
increase
measure
punishment
raises
clear
ex
post
facto
concerns
previously
recognized
instance
defendant
charged
increased
punishment
crime
likely
feel
enhanced
pressure
plead
guilty
see
carmell
weaver
pressure
disappear
simply
guidelines
range
advisory
defendant
aware
range
intended
usually
exert
controlling
influence
sentence
impose
therefore
persuaded
argument
advanced
government
also
suggested
dissent
animating
principles
ex
post
facto
clause
implicated
case
government
argues
sentencing
commission
insulated
legislative
interference
see
brief
precedents
make
clear
coverage
ex
post
facto
clause
limited
legislative
acts
see
garner
recognizing
change
parole
board
rules
given
adequate
showing
run
afoul
ex
post
facto
clause
true
held
irizarry
defendant
expectation
subject
due
process
protection
sentenced
within
guidelines
range
contrary
dissent
view
see
post
ex
post
facto
clause
merely
protect
reliance
interests
also
reflects
principles
fundamental
justice
carmell
iv
government
principal
argument
constitutional
violation
case
sentencing
guidelines
lack
sufficient
legal
effect
attain
status
law
within
meaning
ex
post
facto
clause
whereas
guidelines
ha
force
effect
laws
booker
guidelines
government
contends
lost
status
due
advisory
nature
dissent
echoes
argument
post
distinction
government
draws
necessarily
fine
one
precedents
firmly
establish
changes
law
need
bind
sentencing
authority
order
violate
ex
post
facto
clause
example
law
run
afoul
clause
even
alter
statutory
maximum
punishment
attached
crime
lindsey
washington
considered
ex
post
facto
challenge
washington
law
altering
statutory
penalty
grand
larceny
range
years
imprisonment
mandatory
term
years
imprisonment
although
upper
boundary
sentencing
power
punish
remained
unchanged
enough
petitioners
deprived
opportunity
receive
sentence
give
freedom
custody
control
prior
expiration
term
emphasis
added
addition
cases
make
clear
presence
discretion
displace
protections
ex
post
facto
clause
garner
series
cases
example
considered
validity
ex
post
facto
clause
state
laws
altering
terms
discretionary
parole
early
release
available
prisoners
see
garner
morales
weaver
although
cases
reached
differing
conclusions
respect
whether
ex
post
facto
violation
none
indicate
mere
fact
prisoner
guaranteed
parole
rather
received
parole
board
fatal
claim
see
garner
morales
weaver
government
challenge
holdings
rather
argues
essence
guidelines
much
like
guideposts
enough
like
fences
give
rise
ex
post
facto
violation
contrasts
sentencing
guidelines
florida
system
issue
miller
government
indicates
really
place
substantial
legislative
constraint
judge
exercise
sentencing
discretion
brief
explained
length
difference
federal
system
scheme
considered
miller
one
degree
kind
florida
system
achieve
binding
legal
effect
brief
mandating
sentence
every
case
rather
achieved
binding
legal
effect
set
procedural
rules
standards
appellate
review
combination
encouraged
district
courts
sentence
within
guidelines
see
miller
detailed
ways
federal
sentencing
regime
booker
government
elaborates
argument
sentencing
guidelines
adequate
legal
force
constitute
ex
post
facto
violation
reviewing
various
features
sentencing
regime
view
tend
render
guidelines
purely
advisory
noted
district
courts
may
presume
sentence
reasonable
may
appropriate
cases
impose
sentence
based
disagreement
commission
views
pepper
slip
sentences
reviewed
deferential
standard
see
supra
government
accurately
describes
several
attributes
federal
sentencing
booker
conclusion
draws
isolating
features
system
ultimately
supportable
government
account
guidelines
one
among
many
persuasive
sources
sentencing
consult
different
policy
paper
brief
government
argument
fails
acknowledge
however
district
courts
required
consult
policy
paper
order
avoid
reversible
procedural
error
must
consider
extent
deviation
given
policy
paper
ensure
justification
sufficiently
compelling
support
degree
variance
gall
courts
appeals
turn
permitted
presume
sentence
comports
particular
policy
paper
reasonable
courts
appeals
considering
whether
district
sentence
reasonable
weigh
extent
departure
given
policy
paper
determining
whether
district
abused
discretion
see
simply
case
sentencing
guidelines
merely
volume
district
reads
academic
interest
course
sentencing
course
government
dissent
point
notwithstanding
rule
retrospective
application
higher
guidelines
range
violates
ex
post
facto
clause
sentencing
courts
free
give
careful
consideration
current
version
guidelines
representing
recent
views
agency
charged
congress
developing
sentencing
policy
see
post
citing
demaree
render
holding
purely
semantic
district
courts
must
begin
sentencing
analysis
guidelines
effect
time
offense
use
calculate
sentencing
range
correctly
guidelines
anchor
district
discretion
appellate
review
process
ways
described
newer
guidelines
meanwhile
status
one
many
reasons
district
might
give
deviating
older
guidelines
status
simply
equivalent
ex
post
facto
purposes
finally
government
contends
rule
ex
post
facto
clause
violated
application
increased
guidelines
range
tension
cases
indeed
largely
undo
booker
remedy
sixth
amendment
violation
found
brief
guidelines
binding
enough
trigger
ex
post
facto
violation
argument
goes
must
binding
enough
trigger
sixth
amendment
violation
well
government
argument
assumes
sixth
amendment
ex
post
facto
clause
share
common
boundary
facts
basis
higher
sentence
manner
raises
sixth
amendment
concerns
set
sentencing
rules
sufficiently
determinate
run
afoul
ex
post
facto
clause
sixth
amendment
ex
post
facto
clause
inquiries
analytically
distinct
sixth
amendment
cases
focused
given
finding
fact
required
make
defendant
legally
eligible
severe
penalty
ex
post
facto
cases
contrast
focused
whether
change
law
creates
significant
risk
higher
sentence
whether
sentence
conformity
new
guidelines
substantially
likely
booker
remedy
designed
subsequently
calibrated
exploit
precisely
distinction
intended
promote
sentencing
uniformity
avoiding
sixth
amendment
violation
light
statistics
invoked
petitioner
see
supra
appears
far
achieving
balance
nothing
say
today
undo
es
holdings
booker
rita
gall
kimbrough
recent
sentencing
cases
arguments
put
forward
government
dissent
unseat
conclusion
peugh
case
falls
within
calder
third
category
ex
post
facto
violations
ex
post
facto
clause
forbids
government
enhance
measure
punishment
altering
substantive
used
calculate
applicable
sentencing
range
morales
precisely
amended
guidelines
created
significant
risk
higher
sentence
peugh
garner
offended
one
principal
interests
ex
post
facto
clause
designed
serve
fundamental
justice
carmell
reasons
reverse
judgment
seventh
circuit
remand
case
proceedings
consistent
opinion
ordered
thomas
dissenting
marvin
peugh
petitioner
writ
certiorari
appeals
seventh
circuit
june
justice
thomas
chief
justice
scalia
justice
alito
join
parts
dissenting
constitution
prohibits
congress
passing
ex
post
facto
laws
art
cl
retroactive
application
guidelines
alter
punishment
affixed
petitioner
crime
violate
affirm
seventh
circuit
decision
denying
petitioner
ex
post
facto
claim
therefore
respectfully
dissent
well
established
ex
post
facto
law
includes
law
changes
punishment
inflicts
greater
punishment
law
annexed
crime
committed
calder
bull
dall
opinion
chase
precedents
relevant
inquiry
determining
whether
law
inflicts
greater
punishment
whether
retroactive
application
change
law
created
sufficient
risk
increasing
measure
punishment
attached
covered
crimes
garner
jones
quoting
california
dept
corrections
morales
retroactive
application
subsequently
amended
guidelines
create
sufficient
risk
increasing
defendant
punishment
two
reasons
first
guidelines
constrain
discretion
district
courts
thus
legal
effect
defendant
sentence
second
extent
amended
guidelines
create
risk
defendant
might
receive
harsher
punishment
risk
results
guidelines
persuasive
force
legal
effect
guidelines
help
district
judges
impose
sentences
comply
risk
increased
sentence
essence
risk
accurate
sentence
sentence
line
statutory
scheme
penological
goals
guideline
changes
help
district
courts
achieve
statutory
sentencing
goals
create
risk
increased
sentence
cognizable
ex
post
facto
clause
never
held
government
action
violates
ex
post
facto
clause
merely
influences
exercise
sentencing
judge
discretion
federal
sentencing
guidelines
constrain
discretion
district
courts
said
repeatedly
guidelines
advisory
booker
remedial
opinion
breyer
reason
district
courts
may
presume
sentence
appropriate
gall
see
also
nelson
per
curiam
guidelines
range
presumed
reasonable
rita
sentencing
enjoy
benefit
legal
presumption
guidelines
sentence
apply
rather
district
courts
must
make
individualized
assessment
appropriate
sentence
based
facts
presented
gall
supra
moreover
district
may
freely
depart
range
recommended
guidelines
based
individualized
determination
guidelines
yield
excessive
sentence
particular
case
also
based
policy
guidelines
spears
per
curiam
see
pepper
slip
ur
decisions
make
clear
district
may
appropriate
cases
impose
sentence
based
disagreement
commission
views
true
district
judge
decides
sentence
warranted
must
ensure
justification
sufficiently
compelling
support
degree
variance
major
departure
supported
significant
justification
minor
one
gall
demonstrate
guidelines
constrain
judge
rather
comports
notion
explanation
essential
meaningful
appellate
review
ibid
district
departs
recommended
range
appeals
may
presume
sentence
unreasonable
ourts
appeals
must
review
sentences
whether
inside
outside
significantly
outside
guidelines
range
deferential
standard
applicable
guideline
may
nudg
sentencing
judge
toward
sentencing
range
freedom
impose
reasonable
sentence
outside
range
unfettered
demaree
none
petitioner
arguments
contrary
persuasive
petitioner
first
contends
guidelines
constrain
district
courts
discretion
improperly
calculating
applicable
guidelines
reversible
error
brief
petitioner
cf
gall
argument
non
sequitur
guidelines
serve
advisory
purpose
district
courts
consider
range
established
guidelines
reason
district
courts
must
begin
sentencing
proceedings
correctly
calculating
applicable
guidelines
range
fact
courts
must
give
due
consideration
recommendation
expressed
correct
guidelines
mean
guidelines
constrain
district
discretion
impose
appropriate
sentence
simply
means
district
courts
must
consider
correct
exercising
discretion
petitioner
next
argues
guidelines
limit
district
discretion
sentences
falling
outside
guidelines
likely
reversed
substantive
unreasonableness
brief
petitioner
doubt
however
reversal
likely
outcome
district
judge
justify
sentence
based
agreement
either
two
guidelines
old
new
district
calculated
sentencing
range
new
guidelines
sentenced
defendant
sentence
fell
within
range
provided
old
guidelines
difficult
label
sentence
substantively
unreasonable
cast
doubt
every
sentence
issued
old
guidelines
similarly
hard
imagine
appeals
reverse
sentence
substantive
unreasonableness
range
guidelines
effect
time
offense
fell
within
range
guidelines
case
provides
apt
example
considering
factors
district
concluded
sentence
within
amended
guidelines
range
appropriate
sentence
case
app
sentence
undoubtedly
upheld
appeal
district
remand
determined
sentence
within
amended
guidelines
appropriate
light
facts
essential
point
new
guidelines
promulgated
reasonableness
review
meaningfully
constrain
discretion
district
courts
sentence
offenders
within
either
two
ranges
majority
argues
opinion
miller
supports
conclusion
retroactive
application
advisory
guidelines
violates
ex
post
facto
clause
see
ante
miller
leads
opposite
conclusion
florida
superimposed
narrowed
presumptive
sentencing
ranges
statutory
sentencing
ranges
particular
crimes
judge
imposed
sentence
within
narrower
presumptive
range
need
give
written
explanation
reasons
selecting
sentence
sentence
subject
appellate
review
ibid
judge
imposed
sentence
outside
presumptive
range
however
required
provide
convincing
reasons
quoting
rule
crim
proc
based
facts
proved
beyond
reasonable
doubt
justified
departure
concluding
retroactive
application
scheme
violated
ex
post
facto
clause
reasoned
florida
guidelines
simply
provide
flexible
use
exercise
discretion
instead
create
high
hurdle
must
cleared
discretion
ould
exercised
cites
miller
proposition
applying
amended
sentencing
guidelines
increase
defendant
recommended
sentence
violate
ex
post
facto
clause
notwithstanding
fact
sentencing
courts
possess
discretion
deviate
recommended
sentencing
range
ante
claim
supported
miller
guidelines
miller
violated
ex
post
facto
clause
precisely
constrained
sentencing
judge
discretion
federal
guidelines
contrast
thing
indeed
opinions
made
abundantly
clear
guidelines
create
high
hurdle
hurdle
must
cleared
discretion
exercised
miller
rather
guidelines
flexible
inform
district
courts
discretion
ibid
accordingly
retroactive
application
constitute
violation
ex
post
facto
clause
notwithstanding
discretion
district
courts
impose
appropriate
sentences
anywhere
within
statutory
range
guidelines
influenc
sentences
imposed
judges
ante
guidelines
helping
district
courts
impose
sentences
consistent
difficult
see
guideline
designed
lead
courts
impose
sentences
line
fixed
statutory
objectives
ever
constitute
ex
post
facto
violation
exactly
concludes
district
courts
charged
imposing
sentences
greater
necessary
comply
sentencing
purposes
set
forth
pepper
slip
quoting
district
task
impose
sentences
reflect
punitive
goals
justice
deterrence
protection
public
rehabilitation
easily
stated
goal
difficult
achieve
enter
sentencing
guidelines
sentencing
reform
act
instructs
sentencing
commission
promulgate
guidelines
reflect
basic
objectives
district
courts
must
consider
rita
see
also
crafting
guidelines
commission
began
empirical
examination
presentence
reports
setting
forth
judges
done
past
rita
supra
citing
sentencing
commission
guidelines
manual
ussg
commission
modif
ied
adjust
ed
past
practice
interests
greater
rationality
avoiding
inconsistency
complying
congressional
instructions
like
rita
supra
individual
judge
limited
experience
upon
draw
commission
capacity
base
determinations
empirical
data
national
experience
guided
professional
staff
appropriate
expertise
kimbrough
internal
quotation
marks
omitted
commission
updates
guidelines
regularly
new
information
becomes
available
consults
prosecutors
defenders
law
enforcement
groups
civil
liberties
associations
experts
penology
others
ensure
guidelines
continue
goals
rita
supra
see
also
booker
noting
commission
modify
guidelines
light
learns
thereby
encouraging
finds
better
sentencing
practices
light
extensive
study
amendments
guidelines
produce
sentencing
ranges
better
comport
factors
commission
fulfilled
mission
recommending
sentences
generally
consistent
sentences
fall
within
guidelines
range
time
part
explains
sentences
presumed
appeal
reflect
discretionary
decision
district
accords
commission
view
rita
supra
case
furnishes
ready
example
prior
sentencing
congress
directed
commission
consider
whether
fraud
guidelines
deter
particular
offenses
light
increases
statutory
maximum
penalties
certain
fraud
crimes
bank
fraud
ussg
app
amdt
reason
amendment
effective
quoting
crime
penalty
enhancement
act
stat
produced
amended
guidelines
based
commission
assessment
economic
crime
issues
number
years
ussg
app
amdt
reason
amendment
effective
amended
guidelines
sentencing
range
district
concluded
sentence
appropriate
sentence
app
neither
statutory
sentencing
range
changed
time
petitioner
offense
sentencing
thus
quite
incorrect
say
reliance
information
reflected
amended
guidelines
violated
ex
post
facto
clause
underscored
fact
even
holding
requires
district
courts
calculate
guidelines
range
effect
time
offense
eliminate
risk
higher
sentence
district
judge
remains
free
consider
range
produced
amended
guidelines
see
demaree
judge
certainly
entitled
take
advice
sentencing
commission
thus
mere
fact
new
guidelines
promulgated
creates
risk
increased
sentence
even
district
courts
required
calculate
guidelines
effect
time
offense
petitioner
presented
evidence
indicating
portion
risk
increased
sentence
flows
retroactive
application
amended
guidelines
portion
flows
existence
absence
evidence
even
agreed
advisory
guidelines
ex
post
facto
laws
find
risk
increased
sentence
created
retroactive
application
guidelines
ex
post
facto
purposes
ii
today
opinion
also
demonstrates
unworkability
ex
post
facto
jurisprudence
current
precedent
whenever
change
law
creates
risk
increased
sentence
must
determine
whether
risk
sufficient
see
morales
sufficiently
see
ante
violate
ex
post
facto
clause
analysis
test
devolved
little
exercise
judicial
intuition
return
original
meaning
clause
stated
justice
chase
classic
calder
formulation
laws
sort
ex
post
facto
increase
punishment
annexed
crime
addressed
ex
post
facto
clause
mere
decade
constitution
ratified
calder
justice
chase
described
four
types
ex
post
facto
laws
relevant
justice
chase
third
category
indicated
law
changes
punishment
inflicts
greater
punishment
law
annexed
crime
committed
violates
ex
post
facto
clause
ibid
justice
chase
emphasis
increases
punishment
annexed
crime
grounded
english
common
law
accurately
reflected
original
understanding
ex
post
facto
clause
see
part
infra
unfortunately
rapidly
deviated
formulation
kring
missouri
declared
law
passed
commission
offence
relation
offence
consequences
alters
situation
party
disadvantage
ex
post
facto
law
quoting
justice
washington
jury
charge
hall
cas
cc
emphasis
added
took
nearly
century
decide
kring
departure
calder
explanation
original
understanding
ex
post
facto
clause
unjustified
collins
youngblood
overruling
kring
following
collins
disavowal
kring
held
law
ex
post
facto
produces
sufficient
risk
increasing
measure
punishment
attached
covered
crimes
morales
supra
morales
avoided
kring
disadvantage
test
failed
reconnect
ex
post
facto
original
understanding
term
sufficient
risk
test
also
depends
upon
empirical
analysis
yield
determinative
answers
courts
ill
equipped
handle
see
ner
rule
terms
show
significant
risk
respondent
must
demonstrate
evidence
drawn
rule
practical
implementation
agency
charged
exercising
discretion
retroactive
application
result
longer
period
incarceration
earlier
rule
fundamentally
sufficient
risk
test
like
disadvantage
defendant
test
wrongly
focuses
particular
sentence
defendant
might
receive
rather
punishment
annexed
crime
practical
difficulties
test
apparent
even
application
morales
considered
amendment
california
parole
procedures
allowed
certain
circumstances
board
prison
terms
decrease
frequency
parole
suitability
hearings
sufficient
risk
test
compelled
speculate
possible
effects
new
law
various
individuals
prison
terms
ultimately
held
amendment
violate
ex
post
facto
clause
narrow
class
prisoners
covered
amendment
reasonably
expect
prospects
early
release
parole
enhanced
opportunity
annual
hearings
morales
supra
nothing
text
history
ex
post
facto
clause
suggests
hinge
expectations
prisoners
defendants
many
days
spend
prison
although
latin
phrase
post
facto
literally
encompasses
law
passed
fact
collins
long
recognized
phrase
term
art
established
meaning
time
founding
ibid
blackstone
offers
first
key
understanding
established
meaning
opposed
laws
rendered
innocent
conduct
criminal
fact
see
blackstone
commentaries
hereinafter
blackstone
laws
deprive
citizens
notice
fair
warning
therefore
affront
man
reason
freewill
see
blackstone
thus
considered
illegitimate
see
also
federalist
cooke
ed
madison
post
facto
laws
contrary
first
principles
social
compact
every
principle
sound
legislation
reason
ex
post
facto
laws
rightly
described
formidable
instruments
tyranny
hamilton
prohibition
bulwark
favour
personal
security
subject
calder
supra
opinion
chase
although
blackstone
confined
discussion
ex
post
facto
laws
laws
retroactively
declaring
innocent
acts
criminal
authorities
confirm
laws
retroactively
increasing
punishment
also
understood
ex
post
facto
time
founding
see
wooddeson
systematical
view
laws
england
treated
course
vinerian
lectures
discussing
acts
parliament
principally
affect
punishment
making
therein
innovation
creating
forfeiture
disability
incurred
ordinary
course
law
story
commentaries
constitution
abr
prohibition
ex
post
facto
laws
reaches
every
law
whereby
act
crime
aggravated
enormity
punishment
justice
chase
formulation
reflects
understanding
calder
every
law
changes
punishment
inflicts
greater
punishment
law
annexed
crime
committed
ex
post
facto
view
courts
must
compare
punishment
affixed
crime
time
offense
punishment
affixed
time
sentencing
latter
harsher
former
must
apply
punishment
effect
time
offense
common
law
quite
easy
identify
law
retroactively
increased
punishment
criminal
law
generally
prescribed
particular
sentence
offense
langbein
english
criminal
trial
jury
eve
french
revolution
trial
jury
england
france
germany
schioppa
ed
world
determinate
sentencing
increase
punishment
affixed
crime
act
punishable
manner
punishable
committed
fletcher
peck
cranch
sufficient
ex
post
facto
violation
key
point
ex
post
facto
lause
looks
standard
punishment
prescribed
statute
rather
sentence
actually
imposed
lindsey
washington
focusing
punishment
affixed
law
rather
specific
sentence
imposed
furthers
goals
notice
fair
warning
recognized
blackstone
rationales
prohibition
ex
post
facto
laws
see
ross
case
mass
party
know
time
committing
offence
whole
extent
punishment
may
sometimes
matter
calculation
whether
commit
offence
considering
severity
punishment
increasing
punishment
affixed
crime
deprives
people
opportunity
plan
conduct
light
law
enhancement
crime
penalty
seems
come
within
mischief
creation
crime
penalty
therefore
may
classed
together
calder
supra
opinion
paterson
retroactive
laws
merely
create
risk
defendant
receive
higher
sentence
however
implicate
traditional
ex
post
facto
concerns
individual
contemplating
commission
given
offense
knows
may
sentenced
anywhere
within
legally
prescribed
range
may
hope
receive
lenient
sentence
may
even
good
reasons
expecting
leniency
guarantees
see
garner
scalia
concurring
part
judgment
discretion
compassionate
harsh
inherent
sentencing
scheme
denied
compassion
one
risks
offender
knowingly
assumes
law
provides
defendant
one
assurance
sentenced
within
range
affixed
offense
statute
legal
changes
alter
likelihood
particular
sentence
within
legally
prescribed
range
deprive
people
notice
fair
warning
implicate
concerns
tyranny
animated
adoption
ex
post
facto
clause
statutory
range
effect
time
petitioner
offense
remained
effect
sentencing
guidelines
sentencing
range
punishment
affixed
offense
see
part
supra
accordingly
sentencing
petitioner
amended
guidelines
violate
ex
post
facto
clause
concludes
otherwise
respectfully
dissent
alito
dissenting
marvin
peugh
petitioner
writ
certiorari
appeals
seventh
circuit
june
justice
alito
justice
scalia
joins
dissenting
agree
justice
thomas
retroactive
application
amended
advisory
guidelines
violate
ex
post
facto
clause
sufficient
risk
test
see
california
dept
corrections
morales
occasion
case
reconsider
test
merits
relation
original
understanding
clause
footnotes
kennedy
joins
opinion
except
part
compare
demaree
wetherald
ortiz
lewis
lanham
turner
cadc
left
open
question
whether
closer
appellate
review
sentence
may
order
sentencing
judge
varies
guidelines
based
solely
judge
view
guidelines
range
properly
reflect
considerations
even
case
kimbrough
quoting
rita
resolution
case
require
us
assess
merits
issue
justice
thomas
raising
issue
initiative
reject
established
ex
post
facto
clause
framework
post
decline
revisit
settled
precedent
reject
justice
thomas
assertion
case
law
become
unworkab
le
post
simply
requires
judgments
miller
employed
substantial
disadvantage
test
since
abandoned
see
california
dept
corrections
morales
relevant
question
whether
change
law
creates
significant
risk
increasing
punishment
given
crime
garner
jones
made
clear
however
result
miller
remains
sound
see
morales
government
dispute
statistics
argues
instead
relying
aggregated
data
peugh
glosses
fact
sentences
common
certain
crimes
individual
judges
less
likely
follow
guidelines
others
brief
arguments
refute
basic
point
applicable
guidelines
channel
sentences
toward
specified
range
even
fix
within
course
principle
unfairness
helps
explain
shape
clause
scope
doctrine
unto
invalidating
laws
ex
post
facto
clause
force
carmell
government
likens
sentencing
guidelines
system
parole
commission
parole
release
guidelines
established
advisory
framework
parole
decisions
see
parole
geraghty
argues
miller
indicated
retrospectively
applying
stringent
parole
guidelines
constituted
ex
post
facto
violation
issue
constitutional
validity
retrospective
application
parole
guidelines
however
miller
miller
state
lower
cases
discussing
federal
parole
guidelines
inapposite
discussion
florida
guidelines
occasion
address
whether
changes
parole
guidelines
generated
ex
post
facto
problem
may
cases
record
makes
clear
district
imposed
sentence
older
lenient
guidelines
imposed
newer
punitive
ones
case
ex
post
facto
error
may
harmless
see
chapman
california
however
government
argue
ex
post
facto
violation
harmless
indeed
argument
fail
light
fact
district
rejected
peugh
ex
post
facto
claim
keeping
circuit
precedent
applied
new
guidelines
indicated
sentencing
sentence
within
uideline
range
appropriate
sentence
case
app
footnotes
author
morales
failure
apply
original
meaning
error
succumbed