First, Justice Sotomayor is really establishing herself as the Court’s current sentencing scholar, particularly as to Guidelines issues. By my quick tally, since taking her seat in 2009, she has drafted or significantly contributed to seven or eight important sentencing cases, while others are at two or three. I imagine her status as the Court’s only member to have regularly sentenced defendants as a trial court judge has something to do with this—she often seems to be the voice expressing the practicalities of sentencing (both from the defendants’ and judges’ standpoints), which has carried the day in Peugh and some of her other recent opinions (Pepper and Southern Union come to mind, as does the Alleyne concurrence). Scalia’s and Breyer’s overall impact may prove to be greater, but Sotomayor appears to be asserting herself in this area (and willing to spar with Alito).
Second, following that thought and in line with some of the comments [to this prior Peugh post], the Peugh opinion is about the actual practice of federal sentencing versus how the system operates in theory. The dissent was sunk by its first argument—that the Guidelines do not constrain district court discretion. While in theory, based on the language and structure of 3553(a) and the Court’s reasonableness review jurisprudence, that may be true (and every defense attorney argues in the hopes of making it true), the realities of in-the-trenches sentencing demonstrate that increased Guideline ranges equal increased sentences (and thus risk of increased punishment under ex post facto analysis). This fact is well-documented by the Commission’s recent Booker report, it’s yearly data, it’s survey of judges; and a host of academic articles concerning the psychological process of judges when sentencing (i.e., anchoring and adjustment, etc.—see footnote 1 in Judge Calabresi’s concurrence in Ingram [discussed here]). It’s why DOJ advocates to members of Congress and the Commission for additional sentencing enhancements—increased risk to defendants of higher punishments means more bargaining power for prosecutors. Query whether the majority’s argument weakens if variance rates climb both in number and, most importantly, length.
Third, while I don’t think this opinion is going to have huge practical effects on federal sentencing because the Seventh Circuit was an outlier (and there is likely harmless error in many of those cases), the opinion may have a lot of rhetorical value. Defendants basically got a win-win here—assurance that they will be sentenced under the most favorable Guidelines per the majority and lots of juicy language to quote when they argue for a variance per the dissent. I would expect to see Peugh cited in a lot of future federal sentencing memos.
Judges, however, may have gotten the short end of the stick because they now face even more complexity when they determine sentences (a trend that has continued since Booker). Before Puegh, they had to calculate the Guidelines, then decide on departures, then consider a 3553(a) variance (seven factors; four purposes of punishment). Now, Peugh suggests courts should also consider how the evolution of the Guideline at issue (pre- and post-offense) weighs on the sentence. That could mean at least two more Guideline calculations (1987 version if Doug Berman is your defense counsel and the current, harsher version of the Guidelines if you are facing a prosecutor who reads this blog), but it could mean even more (what about Guideline ranges before and after major changes by the Commission, e.g., before and after SOX or Dodd-Frank, to demonstrate that evolution?).