Rev. Rob Schenck of the Faith and Action program holds an umbrella while checking his phone for any U.S. Supreme Court rulings, on June 10, 2013 in Washington, D.C. (Mark Wilson/Getty Images)

A divided Supreme Court ruled Monday that tougher sentencing guidelines passed after someone commits a crime cannot be used to justify a longer sentence for the defendant.

The court ruled 5 to 4 that such a change would violate the Constitution’s prohibition against enacting laws that retroactively make an action illegal or call for greater punishment.

Even though the federal sentence guidelines are advisory, not binding, Justice Sonia Sotomayor wrote for the majority, the analysis is the same. She said the range of sentencing options contained in the guidelines “is intended to, and usually does, exert controlling influence on the sentence that the court will impose.”

In the case at hand, Marvin Peugh was accused of bank fraud and other financial crimes involving an Illinois farming business he owned with his cousin. The scheme took place in 1999 and 2000.

But Peugh was not convicted and sentenced until much later. The guidelines in place at the time of his crimes called for a sentencing range of 30 to 37 months. But when Peugh was sentenced in May 2010, the range had been toughened to 70 to 87 months.

Peugh argued that he should not be sentenced under the new regime. But a judge rejected the claim and sentenced him to 70 months. His conviction and sentence were upheld by the U.S. Court of Appeals for the 7th Circuit.

Sotomayor was joined in overturning that decision by the rest of the court’s liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan — plus Justice Anthony M. Kennedy.

Federal sentencing guidelines originally were enacted to be binding. But the court ruled in 2005 that that ran afoul of the Constitution. The remedy was to make them advisory. But Sotomayor said the guidelines still carry enormous weight.

“That a district court may ultimately sentence a given defendant outside the guidelines range does not deprive the guidelines of force as the framework for sentencing,” Sotomayor wrote.

“Indeed, the rule that an incorrect guidelines calculation” can be reason for appeal “ensures that they remain the starting point for every sentencing calculation in the federal system.”

The court rejected the government’s position that because the guidelines did not carry the legal effect of a “law,” they do not violate the ex post facto clause.

Justice Clarence Thomas, in dissent, largely agreed with the government’s view, and was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr.

Along the way, Thomas apologized for a previous court decision that he wrote and that the majority on Monday in part relied on: 1995’s California Dept. of Corrections v. Morales.

“As the author of Morales, failure to apply the original meaning [of the ex post facto clause] was an error to which I succumbed,” Thomas wrote in a footnote.

“The guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant’s sentence,” Thomas wrote. “We have never held that government action violates the Ex Post Facto Clause when it merely influences the exercise of the sentencing judge’s discretion.”

The case is Peugh v. United States.

Raisin reserve

The justices ruled unanimously that California raisin growers could go forward with their challenge to a New Deal-era marketing program that requires them to turn over part of their crop to the government.

The court took no position on the legality of the Agricultural Marketing Agreement Act of 1937. But it said Marvin and Laura Horne of Fresno, who have done business since 1969 as Raisin Valley Farms, could challenge the law without first paying a nearly $600,000 fine imposed because they did not turn over part of their raisin crop.

The agricultural act was designed to help support prices for farm products. In this case, a board composed of raisin growers and handlers decide how much to keep out of the market in years of bumper crops.

Farmers are not paid for the raisin reserve, and the Hornes contend the program violates their Fifth Amendment protection against seizure of property without compensation.

In a letter to the secretary of agriculture in 2002, the Hornes compared the program to “involuntary servitude,” and added “This is America, not a communist state.”

But the Hornes’ objections have not proceeded very far because of legal procedural problems, and the U.S. Court of Appeals for the 9th Circuit said it did not have jurisdiction.

The Hornes should pay the fine, the court said, then seek a refund in the Court of Federal Claims.

But Monday’s decision, written by Thomas, sent the case back to lower courts to consider the Hornes’ suit.

“When a party raises a constitutional defense to an assessed fine, it would make little sense to require the party to pay the fine in one proceeding and then turn around and sue for recovery of that same money in another proceeding,” he wrote.

The case is Horne v. Department of Agriculture.