Jaclyn Belczyk at 3:20 PM ET
The arguments put forward by the Government and the dissent cannot unseat the conclusion that Peugh's case falls within Calder's third category of ex post facto violations. "[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." ... That is precisely what the amended Guidelines did here. Doing so created a "significant risk" of a higher sentence for Peugh ... and offended "one of the principal interests that the Ex Post Facto Clause was designed to serve, fundamental justice."The ruling reversed the Seventh Circuit's decision, resolving a circuit split. Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan joined the opinion in full. Justice Anthony Kennedy joined except as to Part III-C, which discussed how the holding "is consistent with basic principles of fairness that animate the Ex Post Facto Clause." Justice Clarence Thomas filed a dissenting opinion, joined by Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito as to Parts I and II-C. Alito filed a dissenting opinion, in which Justice Antonin Scalia joined.
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