Peugh v. U.S., 2013 WL 2459523 (6/10/13) - The S. Ct. held it violates the ex post facto clause to sentence a defendant under a version of the Sentencing Guidelines that calls for a higher guideline range than the Guidelines version at the time of the offense. In the course of holding that applying the higher range presents a sufficient risk of increasing the measure of punishment attached to the crime, the 5-justice majority (all the "liberals" plus Justice Kennedy) the Court discussed the strong effect the guidelines have on what sentence is ultimately imposed, citing, among other things, the fact that sentencing courts must start with the guideline range, the need for sufficiently compelling reasons for justifying the extent of a variance, and the presumption of reasonableness on appeal. The Court noted only about a fifth of sentences are variances or departures not requested by the government and that sentences do tend to go up when the guidelines become harsher. In sum, the "Guidelines are the lodestone of sentencing." So you can see this case would be helpful to us in a case where there is a concern that the d. ct. might upwardly vary and not so helpful to an argument for a downward variance. The Court says the ex post facto clause does not prevent a district court from considering the newer, harsher guidelines as the latest Commission wisdom in reaching a sentencing decision. Justice Kennedy did not join one part of Justice Sotomayor's opinion where she explains the ex post facto clause is about "fundamental justice" and notes a higher guideline range puts more pressure on defendants to plea guilty.
Justice Thomas in a dissent joined by the other "conservatives" stresses the advisory nature of the Guidelines that guide the d.ct. to impose sentences consistent with the statutory mandate of § 3553(a) and concludes there is not sufficient risk of an increased sentence when applying the newer, harsher guidelines. A "nudging" towards a guideline sentence does not create a sufficient risk. He expressed doubt that a circuit court would ever reverse a sentence that was within either the old or the new guideline range. In a part of the dissent only Justice Thomas agrees with, he suggests the Court should overturn the "sufficient risk" test created in California Department of Corrections v. Morales, 514 U.S. 499 (1995)---an opinion he wrote.