Daniel M. Levy


In 2005, the U.S. Supreme Court held that the Federal Sentencing Guidelines violated a defendant’s Sixth Amendment right to a jury trial because they allowed a judge to depart from a mandatory range based on facts not presented to a jury. As a solution, the Court modified the Guidelines to be “advisory,” yet curiously held that sentences were still subject to appellate review for reasonableness. Given this tension, U.S. courts of appeals are split on whether the Guidelines are “laws,” subject to the Ex Post Facto Clause of the U.S. Constitution. This Note argues that the Guidelines are advisory, given the level of deference the Supreme Court and circuit courts have recently given to sentencing judges in departures from the Guidelines, and thus they are not “laws” under the Ex Post Facto Clause.

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