United States v. Michael Vallone , 752 F.3d 690 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-3690, 08-4246, 08-4320,
09-1864 & 09-2174
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL A. VALLONE, ROBERT W.
HOPPER, TIMOTHY S. DUNN, and
EDWARD BARTOLI,
Defendants-Appellants.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 04 CR 372 — Charles R. Norgle, Sr., Judge
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
SUBMITTED SEPTEMBER 6, 2013 — DECIDED MAY 16, 2014
2 Nos. 08-3690, 08-4246, 08-4320,
09-1864 & 09-2174
Before ROVNER and WILLIAMS, Circuit Judges and YOUNG,
District Judge.*
ROVNER, Circuit Judge. This case returns to us on remand
from the Supreme Court of the United States. The defendants
were convicted of engaging in a sophisticated tax-fraud con-
spiracy that caused a loss of income-tax revenue to the govern-
ment exceeding $60 million. We affirmed the defendant’s
convictions and sentences in United States v. Vallone, 698 F.3d
416 (7th Cir. 2012); and we assume the reader’s familiarity with
that decision. Five of the six defendants thereafter jointly
petitioned the Supreme Court for a writ of certiorari, contend-
ing (among other points) that their sentences violate the ex post
facto clause, U.S. CONST. art. I, § 9, cl. 3, because the district
court sentenced each of them using the version of the Sentenc-
ing Guidelines in effect at the time of his sentencing rather than
the more favorable version in effect at the time of his offenses.
The Court granted the defendants’ petition, vacated the
judgment, and remanded the case for reconsideration in light
of the Court’s recent decision in Peugh v. United States, 133
S. Ct. 2072 (2013). See Dunn v. United States, 133 S. Ct. 2825,
reh’g denied, 134 S. Ct. 42 (2013). Pursuant to Circuit Rule 54,
the parties have submitted memoranda setting forth their
respective positions as to what action this court should take in
light of Peugh. We now conclude that no violation of the ex post
facto clause occurred in sentencing any of the four defendants
*
The Honorable Richard L. Young, Chief Judge of the United States District
Court for the Southern District of Indiana, sitting by designation.
Nos. 08-3690, 08-4246, 08-4320, 3
09-1864 & 09-2174
before us, as the relevant change in the Guidelines occurred in
November 2001, and the conspiracy of which the defendants
were convicted did not conclude until 2003. We therefore again
affirm the sentences imposed on Vallone, Hopper, Dunn, and
Bartoli1 and reinstate our previous opinion as modified by the
reasoning we set forth below.
The tax-related crimes charged in this case ended late in
2003. In sentencing the various defendants, however, the
district court applied the 2007 and 2008 versions of the Guide-
lines in effect at the time of their sentencings. See 18 U.S.C.
§ 3553(a)(4)(A)(ii); U.S.S.G. § 1B1.11(a) & (b)(1) (court shall use
Guidelines Manual in effect at time of sentencing unless doing
so would violate ex post facto clause). Hopper argued both
below and on appeal that this constituted an ex post facto
violation, because the tax loss table used to establish his base
offense level, see U.S.S.G. § 2T4.1, had been changed to his
detriment after his active participation in the criminal activity
ended.2 Both the district court and this court rejected that
argument on the strength of our decision in United States v.
Demaree, 459 F.3d 791 (7th Cir. 2006), which reasoned that, in
view of the advisory-only status of the guidelines after United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), no ex post
facto problem was posed by applying the version of Guidelines
in effect at sentencing, even if that version treated the defen-
1
Defendant Cover died on December 31, 2013.
2
Defendant Dowd made the same argument, but he did not seek certiorari.
4 Nos. 08-3690, 08-4246, 08-4320,
09-1864 & 09-2174
dant’s crimes more harshly than the one in effect at the time of
his offense. See Vallone, 698 F.3d at 494–95; R. 1085 at 12–13, 17.
Peugh rejected our reasoning in Demaree. The Supreme
Court emphasized that the Guidelines continue to play a
significant role at sentencing notwithstanding the fact they no
longer bind the judge’s choice of sentence after Booker. The
district judge must still begin by properly calculating the
Guidelines range, 133 S. Ct. at 2080, and although he has the
authority and discretion to impose a sentence outside that
range, the advisory range, which represents the Sentencing
Commission’s view as to what constitutes an appropriate
sentence, remains a benchmark throughout the processes of
sentencing and appellate review, id. at 2083. Indeed, if the
judge is contemplating a sentence outside of the Guidelines
range, he must consider the extent of the deviation from that
range and satisfy himself that there is a compelling justification
for it. Id. These requirements mean that “[i]n the usual sentenc-
ing, … the judge will use the Guidelines range as the starting
point in the analysis and impose a sentence within the range.”
Id. (quoting Freeman v. United States, 131 S. Ct. 2685, 2692 (2011)
(plurality opinion)). Even when a judge decides to impose a
non-Guidelines sentence, the Guidelines represent the basis for
the sentence in the sense that the advisory range constitutes
both the starting and reference points for that sentence. Id.
(quoting Freeman). Similarly, a reviewing court may presume
that a within-range sentence is reasonable, and when con-
fronted with a sentence below or above the range will consider
whether the extent of the variance is appropriate in compari-
son with the advisory range. Id. In short: “The federal system
Nos. 08-3690, 08-4246, 08-4320, 5
09-1864 & 09-2174
adopts procedural measures intended to make the Guidelines
the lodestone of sentencing. A retrospective increase in the
Guidelines range applicable to a defendant [thus] creates a
sufficient risk of a higher sentence to constitute an ex post facto
violation.” Id. at 2084.
Obviously our reliance on Demaree as the basis for rejecting
the ex post facto argument can no longer stand; we therefore
retract the relevant portions of our prior opinion, 698 F.3d at
489, 494–95, and consider anew whether in fact the defendants’
ex post facto rights were violated by the district court’s use of
the 2007 and 2008 Guidelines in determining their sentences.
We shall assume arguendo that each of the four defendants
before us is entitled to advance the ex post facto argument,
although among these four only Hopper preserved such an
argument by making it to us earlier. The certiorari petition filed
by these defendants candidly acknowledged that fact and
suggested that any question of waiver could be addressed by
this court on remand. See Petition for Writ of Certiorari, Dunn,
et al. v. United States, 2013 WL 703419, at *9 & n.5 (Feb. 25, 2013)
(No. 12-1056). We do not understand the Court’s remand order
to foreclose consideration of whether the defendants other than
Hopper waived the ex post facto issue; but in view of our
conclusion that their ex post facto rights were not violated, we
need not take up that issue.
The one and only change in the Guidelines that the defen-
dants contend affected them adversely is the revision to the tax
table which establishes the base offense level for the sorts of tax
evasion and tax fraud offenses of which the defendants were
found guilty. See U.S.S.G. § 2T4.1. The change took effect with
6 Nos. 08-3690, 08-4246, 08-4320,
09-1864 & 09-2174
the 2001 version of the Guidelines. Previously, the tax table
would have specified a base offense level of 25 for losses
approximating $60 million, which is the loss for which most of
the defendants in this case were held to account. See § 2T4.1(T)
(Nov. 2000); after the revision, the table specified a base offense
level of 30. See § 2T4.1(M) (Nov. 2001). There is no doubt that
this change was adverse to the defendants. The question, then,
is whether this change can be said to have taken effect after the
defendants’ offenses were completed; only then could it be
characterized as a retrospective change implicating their ex post
facto rights. Cf. United States v. Cruz, 522 F. App’x 352, 353 n.1
(7th Cir. 2013) (nonprecedential decision) (although court
applied November 2012 Guidelines rather than November
2009 or 2010 Guidelines in effect at time of defendant’s offense,
“[n]o Ex Post Facto Clause issues are present in this case, …
because the relevant portions of the November 2012 Sentencing
Guidelines do not provide a higher applicable sentencing
range than the November 2009 and November 2010 Sentencing
Guidelines”).
The defendants were convicted of multiple crimes, but for
present purposes the pertinent one is the offense of conspiracy,
given its nature as a continuing offense. Each of the defendants
was convicted on Count One of the superseding indictment,
which pursuant to 18 U.S.C. § 371 charged them with conspir-
ing to defraud the United States by interfering with the
collection of income taxes by the Internal Revenue Service
(“IRS”) and by committing offenses against the United States
through, inter alia, aiding and abetting the preparation and
presentation of false and fraudulent income tax returns to the
Nos. 08-3690, 08-4246, 08-4320, 7
09-1864 & 09-2174
IRS. The evidence revealed that the conspiracy began in 1994
and ended in 2003. Notably, that time period straddles the
former and current version of the tax loss table.
In United States v. Vaughn, 433 F.3d 917 (7th Cir. 2006), on
which the government relies, the defendant likewise had been
convicted of conspiracy under section 371. As here, the
conspiracy began prior to the effective date of the November
2001 version of the Guidelines but did not conclude until after
that date. In view of the continuing nature of the conspiracy
offense, which brought the offense within the scope of the later
version of the Guidelines, we concluded that it was appropri-
ate to sentence the defendant under that version notwithstand-
ing that it punished him more severely than prior versions. Id.
at 921–22. Our reasoning, because it bears directly on the
arguments made here, is worth quoting at some length:
This court previously has determined that, when
a defendant is convicted of an offense that com-
menced before but continued after the enactment
of an amendment to the Sentencing Guidelines,
he shall be subject to the amended version of the
Guidelines at sentencing. See United States v.
Parolin, 239 F.3d 922, 926 n. 2 (7th Cir. 2001)
(upholding the district court’s application of the
amended Guidelines, given that the defendant
“engaged in conduct subsequent to the effective
date of the 1995 amendments.”). This rule holds
particular force in a conspiracy case, where as we
noted in United States v. Couch, the crime typi-
cally is “not a singular, discrete offense that
8 Nos. 08-3690, 08-4246, 08-4320,
09-1864 & 09-2174
occurs at a point in time and fades into the past”
but rather represents an “ongoing course of
criminal conduct.” 28 F.3d 711, 714 (7th Cir.
1994). A defendant convicted of conspiracy may
be sentenced under a version of the Guidelines
enacted at any time prior to his withdrawal from
the conspiracy—even if he took no overt acts in
furtherance of the conspiracy post-enactment.
“Withdrawal requires an affirmative act to either
defeat or disavow the purposes of the conspir-
acy, such as making a full confession to the
authorities or communicating to co-conspirators
that one has abandoned the enterprise.” See
United States v. Hall, 212 F.3d 1016, 1023 (7th Cir.
2000) (holding that, because the defendant did
not “affirmatively disavow[ ] the purposes of the
conspiracy” before the guideline amendments
became effective, he was subject to those Guide-
lines at sentencing) (emphasis removed).
433 F.3d at 921–22 (footnotes omitted).
Vaughn’s holding was not framed as one addressing ex post
facto concerns3 but its rationale is nonetheless of a piece with
the cases that do deal expressly with the ex post facto clause. It
bears noting in this regard that prior to Booker (and Demaree),
when the Guidelines were mandatory, we did recognize that
3
Our decision mentioned the ex post facto clause only once, in a parentheti-
cal within a footnote collecting cases from other circuits. See 433 F.3d at 922
n.9 (citing United States v. Lightbourn, 115 F.3d 291, 923–94 (5th Cir. 1997)).
Nos. 08-3690, 08-4246, 08-4320, 9
09-1864 & 09-2174
the retroactive application of a more punitive version of the
Guidelines to an offense predating that version was contrary
to the ex post facto clause. See United States v. Seacott, 15 F.3d
1380, 1383–86 (7th Cir. 1994); United States v. Kopshever, 6 F.3d
1218, 1222–23 (7th Cir. 1993), abrogated on other grounds by
United States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012). Even so,
we repeatedly held that when a defendant was engaged in a
continuing crime like conspiracy, or multiple offenses compris-
ing a single course of closely related conduct, and he did not
terminate that conduct until after the effective date of a new,
more punitive guideline, it was both appropriate and consis-
tent with the ex post facto clause to apply the revised guideline.
See, e.g., United States v. Vivit, 214 F.3d 908, 917–19 (7th Cir.
2000); United States v. Hall, 212 F.3d 1016, 1023–24 (7th Cir.
2000); United States v. Boyd, 208 F.3d 638, 648 (7th Cir. 2000),
cert. granted in part & judgment vacated on other grounds, 531 U.S.
1135, 121 S. Ct. 1072 (2001); United States v. Jackson, 983 F.2d
757, 771 (7th Cir. 1993). As the Supreme Court has explained,
“Critical to relief under the Ex Post Facto Clause is not an
individual’s right to less punishment, but the lack of fair notice
and governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime was
consummated.” Weaver v. Graham, 450 U.S. 24, 30, 101 S. Ct.
960, 965 (1981); see also Lynce v. Mathis, 519 U.S. 433, 441, 117 S.
Ct. 891, 895–96 (1997); Miller v. Florida, 482 U.S. 423, 430, 107 S.
Ct. 2446, 2451 (1987). We reasoned that when a defendant
continues with an ongoing crime or course of criminal conduct
past the effective date of a revised guideline, such that his
conduct straddles the original and amended versions of that
10 Nos. 08-3690, 08-4246, 08-4320,
09-1864 & 09-2174
guideline, he is on notice that his conduct will be subject to the
new provision. The choice is his whether to cease or persist;
and if he chooses to keep going down the wrong path, the
application of the new guideline and a harsher penalty cannot
be said to have taken him by surprise. Boyd, 208 F.3d at 648–49;
Jackson, 983 F.2d at 771. Notably, as the passage from Vaughn
quoted above acknowledges, our cases have treated a defen-
dant’s failure to withdraw from an ongoing conspiracy as the
equivalent of active involvement in the conspiracy for this
purpose; thus, even if the defendant took no overt acts in
furtherance of the conspiracy after the effective date of the
Guidelines provision in question, so long as he did not
withdraw from the conspiracy, we have deemed it appropriate
to apply the new provision to him. 433 F.3d at 922; see also Hall,
212 F.3d at 1023–24; Boyd, 208 F.3d at 648.
Since Peugh was decided, we have returned to our former
ex post facto sentencing jurisprudence. See, e.g., United States v.
Woodard, 744 F.3d 488, 497 (7th Cir. 2014). As before Demaree,
we will sustain the application of a new, more punitive version
of the Guidelines to the defendant’s offense conduct so long as
that conduct straddled the effective date of the new version.
See United States v. Hallahan, 744 F.3d 497, 513–14 (7th Cir.
2014). Given that the defendants in this case were convicted of
the continuing offense of conspiracy, then, the relevant inquiry
for purposes of their ex post facto claim is whether that conspir-
acy continued past the effective date of the amended (and
more punitive) version of the tax table.
None of the defendants disputes that the conspiracy
continued beyond November 1, 2001; but three of them
Nos. 08-3690, 08-4246, 08-4320, 11
09-1864 & 09-2174
(Hopper, Dunn, and Bartoli) argue that because they were no
longer involved in the conspiracy as of that date, the ex post
facto clause precludes application of the revised tax table to
them. But as Vaughn and many other decisions make clear,
simply because the defendants may no longer have been active
participants in the conspiracy does not mean that they had
withdrawn from the conspiracy and could not be held culpable
for what occurred after that point. 433 F.3d at 922. “As we have
pointed out before, ‘[i]t is not … all that easy to withdraw from
a conspiracy,’ and it is the defendant's burden [at sentencing]
to show that he did.” United States v. Julian, 427 F.3d 471, 473
(7th Cir. 2005) (quoting Hall, 212 F.3d at 1023). “Simply ceasing
to participate even for extended periods of time is not suffi-
cient to show withdrawal.” Id. Instead, withdrawal requires
affirmative action on the defendant’s part to defeat or disavow
the unlawful goal of the conspiracy. Id. None of the defendants
cites any evidence that would be sufficient to support a finding
that he withdrew from the conspiracy, in the sense that our
cases require, prior to November 1, 2001. Indeed, each of these
three defendants has previously made an argument materially
identical to the one he is making now (Hopper and Dunn in
challenging the relevant loss amount for sentencing purposes,
and Bartoli in making a statute of limitations argument), and
we rejected all of those arguments in our prior decision. 698
F.3d at 493–94 (Hopper); id. at 500–01 (Dunn); id. at 511–13
(Bartoli). Despite their contention that a fresh exploration of
this question is in order, the defendants identify nothing that
they have not already argued and that we have not already
considered on this subject. As we have noted, the failure to
12 Nos. 08-3690, 08-4246, 08-4320,
09-1864 & 09-2174
withdraw from a conspiracy that continues beyond the
effective date of a new guideline renders the defendant subject
to that guideline even if he terminated his active involvement
before the revised guideline took effect. See Hall, 212 F.3d at
1023–24; Boyd, 208 F.3d at 648.
This leaves defendants with a secondary argument that
because the vast majority (between 98 and 99 percent) of the
$60-plus million tax loss in this case was incurred before the
revised tax table took effect, the ex post facto clause should
foreclose application of the revised table regardless of the later
end date of the conspiracy. The argument has the greatest force
in Hopper’s case, as the government conceded at his sentenc-
ing that he should be held to account for a lesser loss amount
of $56 million, 100 percent of which was incurred prior to 2001.
R. 1085 at 17–18.
Whatever its superficial appeal, the argument fails. As we
have been emphasizing, the conspiracy continued well past the
November 1, 2001 effective date of the new table. That the
conspiracy may have resulted in relatively few documented
losses beyond that date does not nullify the fact that the crime
was ongoing. Proof of actual pecuniary loss has never been
necessary to the charge of conspiracy, including a section 371
conspiracy. See Dennis v. United States, 384 U.S. 855, 860, 86
S. Ct. 1840, 1844 (1966) (“the alleged concert of action—the
common decision and common activity for a common
purpose[—] … lay at the core of the alleged [section 371]
offense”); Hammerschmidt v. United States, 265 U.S. 182, 188,
44 S. Ct. 511, 512 (1924) (“It is not necessary that the govern-
ment shall be subjected to property or pecuniary loss by the
Nos. 08-3690, 08-4246, 08-4320, 13
09-1864 & 09-2174
fraud, but only that its legitimate official action and purpose
shall be defeated by misrepresentation, chicane, or the over-
reaching of those charged with carrying out the governmental
intention.”); Haas v. Henkel, 216 U.S. 462, 479, 30 S. Ct. 249,
253–54 (1910); United States v. D’Andrea, 585 F.2d 1351, 1354
(7th Cir. 1978), overruled on other grounds by United States v.
Read, 658 F.2d 1225, 1236 & n. 7 (7th Cir. 1981); see also, e.g.,
United States v. Tuohey, 867 F.2d 534, 537 (9th Cir. 1989); United
States v. Puerto, 730 F.2d 627, 630–31 (11th Cir. 1984); United
States v. Pintar, 630 F.2d 1270, 1277–78 (8th Cir. 1980); United
States v. Burgin, 621 F.2d 1352, 1357–58 (5th Cir. 1980). The
essence of conspiracy, after all, is the agreement to commit an
unlawful act; it is therefore not necessary to show that the
conspiracy succeeded in its illicit aim. E.g., United States v.
Jiminez Recio, 537 U.S. 270, 274–75, 123 S. Ct. 819, 822 (2003). So
the fact that the losses were tapering off does not exempt the
defendants from the rule that continuation of the crime will
subject them to a revision in the Guidelines that takes effect
during the life of the conspiracy. This was true in Vaughn, for
example, where more than 90 percent of the U.S. Treasury
checks that were the object of the charged conspiracy had
already been stolen, fraudulently endorsed, deposited, and
laundered by the time the new loss table took effect. See 433
F.3d at 923.
Indeed, we have sustained the application of a revised
guideline on this basis even when the particular conduct
triggering the guideline was complete before the guideline
took effect. Our decision in Vivit is a prime example.
14 Nos. 08-3690, 08-4246, 08-4320,
09-1864 & 09-2174
In that case, we upheld the application of a guideline
specifying a two-level increase in the defendant’s offense level
for the use of a minor to commit the offense, see U.S.S.G.
§ 3B1.4, notwithstanding the fact that the minors in question all
had been employed in the scheme prior to the effective date of
that particular provision. 214 F.3d at 916–19. The defendant in
Vivit was a physician who had been convicted of 16 counts of
mail fraud based on his submission of reimbursement claims
to insurance companies that significantly over-represented the
nature and degree of care he had provided to the patients in
question; some of the patients involved in the scheme to
defraud were minors. The fraudulent scheme began in 1993
and ended in 1996. It was while the scheme was ongoing that
the Guidelines were amended in November 1995 to provide for
the offense-level increase to reflect the use of minors. Vivit
contended that the application of that new provision to him
violated the ex post facto clause, given that all of the fraudulent
mailings involving minors were complete before that provision
of the Guidelines took effect.
We began our analysis by noting the significance of the
“one-book rule,” which requires that the Guidelines be applied
as “a cohesive whole” and not “in a piecemeal fashion.” Id. at
917 (citing U.S.S.G. § 1B1.11(b)(1) and United States v. Boula, 997
F.2d 263, 266 (7th Cir. 1993)). In other words, where a defen-
dant’s criminal conduct spans multiple versions of the Guide-
lines, a court will not pick and choose among the various
provisions of those versions depending on the date of the
particular conduct in question; it will apply one version to the
entirety of the defendant’s conduct. See id.; § 1B1.11(b)(2) (“The
Nos. 08-3690, 08-4246, 08-4320, 15
09-1864 & 09-2174
Guidelines Manual in effect on a particular date shall be
applied in its entirety. The court shall not apply, for example,
one guideline section from one edition of the Guidelines
Manual and another guideline section from a different edition
of the Guidelines Manual. …”). Which version the court shall
use will depend on the ex post facto clause: the version in effect
at the time of the defendant’s sentencing will be used unless
that version treats him more harshly than the version in effect
at the time of his crime, in which case the latter version will be
used. See § 1B1.11(a) & (b)(1). Either way, one edition of the
Guidelines will govern all aspects of his sentence.
§ 1B1.11(b)(2); Vivit, 214 F.3d at 917. So the merit of Vivit’s ex
post facto claim depended not on when the specific acts
involving minors took place, but rather on when his mail fraud
“offense” could be said to have occurred, for purposes of
selecting the relevant version of the Guidelines. See § 1B1.11(a)
& (b)(1).
Although mail fraud, in contrast to conspiracy, is not a
continuing offense, we concluded that because Vivit’s multiple
mail fraud convictions were to be grouped together under the
section 3D1.2 of the Guidelines (as they involved substantially
the same harm), it was appropriate to treat those convictions
collectively as the equivalent of a continuing offense or a single
course of criminal conduct that straddled the revision in the
Guidelines. 214 F.3d at 918–19. The last act of mail fraud for
which Vivit had been convicted occurred in August 1996, after
the effective date of the November 1995 Guidelines incorporat-
ing the new use-of-a-minor provision. Consequently, it was
appropriate to sentence Vivit using the 1995 Guidelines, as the
16 Nos. 08-3690, 08-4246, 08-4320,
09-1864 & 09-2174
Guidelines themselves instructed. Id.; see § 1B1.11(b)(3) (where
defendant has been convicted of two offenses, one of which
was committed before the effective date of a revised version of
the Guidelines and the other after, the revised Guidelines shall
be applied to both offenses). This did not violate the ex post
facto clause, we reasoned, because Vivit was on notice by virtue
of the longstanding grouping rules of the Guidelines that his
offenses would be grouped for sentencing and that, conse-
quently, if he committed a mail fraud offense after the revised
version of the Guidelines took effect that was closely related to
his earlier mail fraud offenses, he would be sentenced under
the revised version. Id. at 919; see also Hallahan, 744 F.3d at
513–14; United States v. Pagán-Ferrer, 736 F.3d 573, 598–99 (1st
Cir. 2013), petition for cert. filed (U.S. Feb. 14, 2014) (No. 13-
8744).
Our decision in Boyd is a second example. Boyd was a
conspiracy case arising out of the criminal activities of Chi-
cago’s El Rukn street gang. Because the charged conspiracy
had ended after the Guidelines first took effect in November
1987, we held that the defendants’ ex post facto rights were not
violated when the district court sentenced them using the
Guidelines. 208 F.3d at 648. One defendant, Green, additionally
argued that it was an ex post facto error to enhance his offense
level pursuant to section 3B1.1(a) for having been a leader of
the conspiracy, in view of his demotion from El Rukn “gen-
eral” to “private” before the Guidelines took effect. We rejected
that argument too; all that mattered, in our view, was that the
conspiracy (from which Green had not withdrawn) continued
past the date on which the Guidelines took effect:
Nos. 08-3690, 08-4246, 08-4320, 17
09-1864 & 09-2174
The conspiracy of which [Green] was a member
straddled the date of promulgation, and a crime
that straddles can be punished under a guideline
promulgated after the straddle date. The straddle
rule implies punishment for conduct committed
before the date of the guideline that determined
the severity of the punishment, and we cannot
see what difference it can make whether the
pre-guideline conduct was the sale of a quantity
of drugs perhaps much greater than any that
occurred after the critical date or the exercise of
leadership responsibilities relinquished by that
date.
Id. (citations omitted)
These cases make clear that it is immaterial how much, if
any, of the pecuniary loss in this case occurred relative to the
effective date of the revised tax table. What is material is the
end date of the conspiracy. As the conspiracy continued past
the effective date of the November 2001 Guidelines which
contained the new tax table, and none of the defendants had
withdrawn from the conspiracy prior to that date, it was
appropriate to apply the 2001 Guidelines, including the revised
tax table, to the loss.
This is not to say that the defendants would have no basis
to argue that the application of the 2001 tax table had a
distorting effect on their advisory sentencing ranges, given that
so much of the loss (or in Hopper’s case, all of it) had occurred
before the more punitive version of the table became effective.
18 Nos. 08-3690, 08-4246, 08-4320,
09-1864 & 09-2174
This is an argument as to the substantive reasonableness of the
advisory range and the sentence that the court ought to have
imposed. But it was an argument that was available to the
defendants at the time they were sentenced—indeed, the entire
premise of Demaree was that after Booker, the sentencing judge
has wide discretion to entertain these very sorts of arguments.
Nothing about Peugh has altered the nature or basis of that
argument. As we have seen, regardless of whether Demaree or
a pre-Booker case like Vaughn was the controlling precedent, the
defendants were appropriately sentenced using the revised tax
table that took effect in November 2001; the effect of the tax
table on the defendants’ sentences was always self-evident,
and because the defendants were sentenced after Booker, they
were free to argue that a sentence within the advisory range
produced, in part, by the revised tax table, was substantively
unreasonable. The defendant in Vaughn made just such an
argument. See 433 F.3d at 923–25.
We therefore discern no reason for either a full remand to
the district court for de novo resentencing or a limited remand
to give the district court the opportunity to consider whether
it would be inclined to sentence the defendants differently in
light of Peugh, cf. United States v. Paladino, 401 F.3d 471, 483–84
(7th Cir. 2005). For all of the reasons we have discussed, the
district court’s use of the revised tax table was not contrary to
the ex post facto clause of the Constitution and was fully
consistent with our jurisprudence prior to Demaree, which
Peugh abrogated. We therefore reinstate our prior decision as
modified by this opinion and again AFFIRM the sentences
imposed on defendants Vallone, Hopper, Dunn and Bartoli.