Record and brief — Peugh v. United States
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‘Ny SUPREME COURT
mee” OF THE UNITED STATES
No. 12-62
Title Marvin Peugh, Petitioner
V
United States
Docketed July 17, 2012
Linked with 11A1188
Lower Ct: United States Court of Appeals for the Seventh Circuit
Case Nos.: (10-2184)
Decision Date March 28, 2012
Questions
Presented
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~
Jun 132012 Application (11A1188) to extend the time to file a petition for a writ of certiorar| from June
26, 2012 to August 10, 2012, submitted to Justice Kagan
Jun 132012 Application (11A1188) granted by Justice Kagan extending the time to file until August
10, 2012.
Jul 162012 Petition for a writ of certiorari filed. (Response due August 16, 2012)
Aug 72012 Order extending time to file response to petition to and including September 17, 2012
Aug 16 2012 Brief amicus curiae of Illinois Association of Criminal Defense Lawyers filed
Sep 10 2012 Order further extending time to file response to petition to and including October 12
2012
Oct 12 2012 Brief of respondent United States in opposition filed
Oct 23 2012 Reply of petitioner Marvin Peugh filed
Oct 24 2012 DISTRIBUTED for Conference uf November 9, 2012
Nov92012 Petition GRANTED
Dec 18 2012 SET FOR ARGUMENT ON Tuesday. February 26. 2013
Dec 26 2012 Joint appendix filed. (Statement of costs filed)
Dec 26 2012 Brief of petitioner Marvin Peugh filed.
Dec 26 2012 Motion to file Volume II of the joint appendix under seal filed by petitioner Marvin Peugh
Jan2 2013 Brief amicus curiae of Illinois Association of Criminal Defense Lawyers filed (Distributed)
Jan32013 Record from U.S.C.A. for 7th Circuit is electronic
Jan9 2013 Motion DISTRIBUTED for Conference of February 15, 2013.
Jan 10 2013 CIRCULATED
Jan 25 2013 Brief of respondent United States filed. (Distributed)
Feb 19 2013 Motion to file Volume II of the joint appendix under seal GRANTED
Feb 19 2013 Reply of petitioner Marvin Peugh filed. (Distributed)
Feb 26 2013 Argued. For petitioner Stephen B. Kinnaird, Washington, D.C. For respondent Eric J
Feigin, Assistant to the Solicitor General. Department of Justice. Washington. D. C
PETITION
FOR
WRIT OF
CERTIORARI
RECORD oe ti tae
AND |
ae 12-6 2 JUL 16 2012
OFFICE OF THE (1 ;
IN THE
Supreme Court of the United States
MARVIN PEUGH. Petitioner.
Vv.
UNITED STATES OF AMERICA, Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
STEPHEN B. KINNAIRD STEPHANOS BIBAS
Counsel of Record University of Pennsylvania Law
CANDICE CASTANEDA School Supreme Court Clinic
Paul Hastings LLP 3501 Sansom Street
875 15th Street. N.W. Philadelphia. PA 19104
Washington, DC 20005 (215) 746-2297
stephenkinnaird@paulhastings.com
(202) 551-1700
ALLAN A. ACKERMAN
ERIKA L.. LEONARD 39 South LaSalle Street
Amy E. JENSEN Suite 1218
Paul Hastings LLP Chicago, IL 60603
600 Peachtree St.. Ste. 2400 (312) 332-2891
Atlanta. GA 30308
(404) 815-2400 Counsel for Petitioners
Library of Concress
Law Library
ry
QUESTION PRESENTED
The U.S. Sentencing Guidelines Manual directs a
court to “use the Guidelines Manual in effect on the
date that the defendant is sentenced” unless “the
court determines that use of the Guidelines Manual
in effect on the date that the defendant is sentenced
would violate the Ex Post Facto Clause of the United
States Constitution.” Eight courts of appeals have
held that the Ex Post Facto Clause is violated where
retroactive application of the Sentencing Guidelines
creates a significant risk of a higher sentence. In the
decision below, however, the Seventh Circuit has held
that the Ex Post Facto Clause is never violated by
retroactive application of the Sentencing Guidelines
because the Guidelines are advisory, not mandatory.
The question presented is:
Does a sentencing court violate the Ex Post
Facto Clause by using the U.S. Sentencing
Guidelines in effect at the time of sentencing
rather than the Guidelines in effect at the
time of the offense, if the newer Guidelines
create a significant risk that the defendant
will receive a longer sentence?
fie
TABLE OF CONTENTS
Page(s)
SFIS Oy IG OEP ocincnsncccccsnsevsscesccessébesecsseosnces i
ee I Ba I ivtkiescnsacsnseciniitncacinnctnnincncel ili
ee Ce Bee I itiitccccvitiicnsiiiaieiieiocienmmamns v
PETITION FOR A WRIT OF CERTIORARI............. 1
OPINIONS AND ORDERS BELOW.......................... 1
ee bnncicccnincninnintinnscniecintiiaiinnininiiepeiialstaiiaiiae tates ia l
Pe ee Be re Ei cceccsccescccsscttcvlicntibeencenens l
oe oxy og tt a, 4 eee 2
REASONS FOR GRANTING THE PETITION ......... 7
I. THE COURTS OF APPEALS ARE DEEPLY
DIVIDED ON THE QUESTION PRESENTED
vinduuncteneieiineiiieimaiieddeniamamameana ae 7
II. THE SEVENTH CIRCUIT'S DECISION IS
INCONSISTENT WITH SUPREME COURT
PRECEDENT AND DISREGARDS THE
SIGNIFICANT RISK THAT APPLYING
HARSHER GUIDELINES WILL RESULT IN
A LONGER SENTENCE...........................0065- 12
Ill. THE QUESTION PRESENTED AFFECTS
THOUSANDS OF SENTENCES .................. 19
IV. THIS CASE IS A CLEAN VEHICLE............ 20
CEO UE eee ccecncevcccssssonstassteniensidannasaanmaneneneimiatl 22
-lil-
TABLE OF APPENDICES
Page(s)
APPENDIX A
Peugh v. United States, Opinion No. 10-2184,
U.S. Court of Appeals for the Seventh Circuit,
ER Ce la
APPENDIX B
United States v. Peugh, Criminal No. 3:08-cr-
50014-1, May 4, 2010 Order of U.S. District
Court for the Northern District of Illinois....14a
APPENDIX C
Excerpts of Sentencing Transcript, United
States v. Peugh, No. 08 CR 50014, Vol. 2
RS Es GRE Why BE cccsccecccccccccssccncssascoccons 26a
APPENDIX D
U.S. SENTENCING GUIDELINES MANUAL
§§ 2F1.1(a), 2F1.1(b)(1)(n), 3C1.1, and 5A
APPENDIX E
U.S. SENTENCING GUIDELINES MANUAL
§§ 1B1.11, 2B1.1(a)(1), 2B1.1(b)(1)G), 3C1.1,
Ee a OE 52a
-]V-
TABLE OF APPENDICES
(continued)
Page(s)
APPENDIX F
Amendment 617 to the U.S. Sentencing
Guidelines, U.S. SENTENCING GUIDELINES
MANUAL App. C vol. II,
"| ERR res ensauseonca om 64a
APPENDIX G
Amendment 653 to the U.S. Sentencing
Guidelines, U.S. SENTENCING GUIDELINES
MANUAL App. C vol. II,
-V-
TABLE OF AUTHORITIES
Page(s)
CASES
Cal. Dep’t of Corrections v. Morales,
I en eslaliaianlalil 18
Gall v. United States,
TSE EWES ewe Enews Frere 12,13
Garner v. Jones,
I 7,9, 12,18
Miller v. Florida,
I A a alee 7,9, 15
Rita v. United States,
I i 9, 13, 14
United States v. Booker,
I le passim
United States v. Carter,
490 F.3d 641 (8th Cir. 2007) .............cccccccccccccescese 10
United States v. Demaree,
459 F.3d 791 (7th Cir. 2006) ........................ passim
United States v. Favara,
615 F.3d 824 (7th Cir. 2010),
cert. denied, 131 S. Ct. 1812 (2011) ..................... 11
United States v. Forrester,
616 F.3d SBS (Gtta Cir. BOD) ....ccccccecccecccccccccecss 9,10
-vi-
TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Lanham,
617 F.3d 873 (6th Cir. 2010), cert. denied,
I a eel 9
United States v. Lewis,
606 F.3d 193 (4th Cir. 2010) .......0...0.0 cee 9,13
United States v. Maldonado,
ee ae En ll
United States v. Ortiz,
621 F.3d 82 (2d Cir. 2010),
cert. denied, 131 S. Ct. 1813 (2011) ................... 8,9
United States v. Reasor,
418 F.3d 466 (5th Cir. 20085) ................................ 10
United States v. Ricardo-Rodriguez,
F&F fe Le eC 11
United States v. Robertson,
fe tg. fs |. Er eeeeeeesee ll
United States v. Sandoval,
668 F.3d 865 (7th Cir. 2011), cert. denied,
Ef Ee een 11
United States v. Thompson,
518 F.3d 832 (10th Cir. 2008) ................... ena 10
United States v. Turner,
548 F.3d 1094 (D.C. Cir. 2008) .................... passim
-vii-
TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Wasson,
679 F.3d 938 (7th Cir. BOUZ) .............ccccccccccccccccecs 11
United States v. Wetherald,
636 F.3d 1315 (11th Cir. 2010) ............. 8, 9, 13, 14
United States v. Wood,
GED ce PU GI ree BO ccicccccsevecnccccccscccscoccccecets y
Weaver v. Graham,
EES ee oe Ne OE ee 7
CONSTITUTION, STATUTES, AND GUIDELINES
i 1
CS a ee eT: MENTE Te 4
18 U.S.C. § 3553(a)(4)(A) (2OO6G).....................cccececcecees 3
EE ne EROS Re one ee a Ne 1
U.S. SENTENCING GUIDELINES MANUAL § 2F 1.1
I i Na 5, 17
U.S. SENTENCING GUIDELINES MANUAL § 3C1.1
SEPT Wie, SUT alnisiaccinniiccsdesdeipnncelnarnentennnietibieeaiiipeiiiiiiidiniiiias 5
U.S. SENTENCING GUIDELINES MANUAL § 5A
I TN, et 5
U.S. SENTENCING GUIDELINES MANUAL
ERS EA AN A oe ee 8, 10
-Vili-
U.S. SENTENCING GUIDELINES MANUAL
§ 2B1.1(a)(1) (Nov. 1, 2009).............. iliieliciadiati tai 6
U.S. SENTENCING GUIDELINES MANUAL
§ 2B1.1(b)(1)(j) (Nov. 1, 2009) .................. eee 6
U.S. SENTENCING GUIDELINES MANUAL § 3C1.1
I Raa a a 6
U.S. SENTENCING GUIDELINES MANUAL § 5A
NS SRE ae Ei eee seen ae me 6
U.S. SENTENCING GUIDELINES MANUAL
fH A ERT en enn aN En Re 4
OTHER AUTHORITIES
Brief for the United States,
Gabayzadeh v. United States, No. 11-1034,
Bs We EE ccnctinntciphcinmssivioveseinieveinnennins passim
Brief for the United States, Plaintiff-Appellee,
United States v. Peugh, No. 10-2184
I I CR I ic srnrerinianmnpsnnenninnnitatiies 5
Brief for the United States,
Sandoval v. United States, No. 11-9492,
AER E ene nen passim
Brief of Marvin Peugh,
Defendant-Appellant, United States v.
Peugh, No. 10-2184 (7th Cir. April 21, 2011)........ 6
Defendant’s Objections to Presentence
Investigation Report,
United States v. Peugh, No. 08-CR-50014
CS Tk, CEE eiiccrnssnndenanimeivetntdininminmemiieis 5
Stephanos Bibas, Plea Bargaining Outside the
Shadow of Trial, 117 HARV. L. REV. 2463
IIIT ssiieeenlheueaeineiiamilipeeianiiahiaiibihanaieeiaa
U.S. SENTENCING COMMISSION, 2011 ANNUAL
SS eran
U.S. SENTENCING COMMISSION, 2011
SOURCEBOOK OF FEDERAL SENTENCING
AS RT en nen eRe
U.S. SENTENCING GUIDELINES MANUAL App. C,
Ns See UII cis ctnsecnninshininiedinnneibinietunmmeneenenst
PETITION FOR A WRIT OF CERTIORARI
Marvin Peugh respectfully petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Seventh Circuit in this case.
OPINIONS AND ORDERS BELOW
The judgment of the United States District Court
for the Northern District of Illinois is unreported but
reprinted at App. 14a-25a, and the oral ruling of the
district court is reproduced at App. 28a. The Seventh
Circuit’s opinion and order, affirming the judgment of
the district court, is reported at 675 F.3d 736 and
reprinted at App. la-13a.
JURISDICTION
The Seventh Circuit entered its opinion and order
and its judgment on March 28, 2012. On June 13,
2012, Justice Kagan granted application 11A1188,
extending the time within which to file a petition for
a writ of certiorari to and including August 10, 2012.
This Court has jurisdiction pursuant to 28 U.S.C.
§ 1254(1).
PROVISIONS INVOLVED
The Ex Post Facto Clause of the U.S. Constitution
provides, “No... ex post facto Law shall be passed.”
U.S. Const. art. I, § 9, cl. 3. The relevant provisions
of the 1998 U.S. SENTENCING GUIDELINES MANUAL
(§§ 2F1.1, 3C1.1, and 5A) and the 2009 USS.
SENTENCING GUIDELINES MANUAL (§§ 1B1.11, 2B1.1,
3C1.1, 5A, and Appendix C, Vol. II, Amendments 617
and 653) are reproduced in appendices D-G to this
petition at App. 44a-68a.
-2-
STATEMENT OF THE CASE
This case presents an important and recurring
constitutional issue on which the federal courts of
appeals are intractably divided: whether, in the wake
of United States v. Booker, 543 U.S. 220 (2005), the
retroactive application of the Sentencing Guidelines
violates the Ex Post Facto Clause when the newer
Guidelines create a significant risk of a harsher
sentence than would have been imposed under
Guidelines in effect at the time of the crime. The
Solicitor General has previously declared that the
“courts of appeals are divided” 5-1 on the question.
The D.C., Second, Fourth, Sixth and Eleventh
Circuits find an ex post facto violation in such
circumstances. By contrast, only one circuit—the
Seventh Circuit, the court below—has held to the
contrary that the Ex Post Facto Clause is not
implicated because the Guidelines are advisory. Brief
for the United States at 8, 10-11, Sandoval v. United
States, No. 11-9492 (S. Ct. May 2012) (“Sandoval
BIO”); accord Brief for the United States at 16-17,
Gabayzadeh v. United States, No. 11-1034 (S. Ct. May
2012) (“Gabayzadeh BIO”). The circuit split is
acknowledged and entrenched. The courts of appeals
in the majority have explicitly rejected the Seventh
Circuit’s analysis, and the Seventh Circuit (despite
acknowledging its position as the minority rule) has
repeatedly refused to reconsider its precedent.
Indeed, the circuit split is broader than the
Government suggests, with three other courts of
appeals applying ex post facto analysis to advisory
guidelines after Booker.
Resolving the circuit conflict is critical to
maintaining the goal of uniform federal sentencing,
-3-
and the Solicitor General has acknowledged that this
“circuit conflict may warrant this Court’s review in
an appropriate case.” Sandoval BIO at 10-11;
Gabayzadeh BIO at 16-17. This is such a case.
Unlike prior cases that have come before this Court,
this case is free of defects that would make it an
unsuitable vehicle for resolving the question
presented. Mr. Peugh raised the issue in both the
district court and the court of appeals, and both
courts squarely addressed it. The Seventh Circuit’s
rule materially lengthened his sentence: Mr. Peugh’s
70-month sentence, which was at the bottom of the
range calculated under the 2009 Guidelines in effect
at the time of his sentence, was 24 months above the
top of the range calculated under the 1998 Guidelines
in effect at the time of his offense. Finally, given the
length of Mr. Peugh’s sentence, there is no risk that
this case will become moot during the pendency of
this Court’s review. This Court should grant review
and resolve this important constitutional issue that
affects large numbers of sentences in the federal
courts.
A. Legal Background
The Sentencing Reform Act of 1984, as amended,
directs sentencing courts to consider a number of
factors in imposing a sentence, including Guidelines
issued by the Sentencing Commission. 18 U.S.C.
§ 3553(a)(4)(A) (2006). The statute directs a court to
consider the Guidelines “in effect on the date the
defendant is sentenced.” Jd. § 3553(a)(4)(A)(ii). The
Guidelines implement that statute with the proviso
that “[ijf the court determines that use of the
Guidelines Manual in effect on the date that the
defendant is sentenced would violate the Ex Post
-4-
Facto Clause of the United States Constitution, the
court shall use the Guidelines Manual in effect on the
date that the offense of conviction was committed.”
U.S. SENTENCING GUIDELINES MANUAL § 1B1.11(b)
(2011).
B. Facts and Proceedings Below
In 2010, a jury convicted Mr. Peugh of five counts
of bank fraud under 18 U.S.C. § 1344 related to loans
received for farming businesses Mr. Peugh ran with
his cousin (one count pertaining to allegedly
fraudulent loan activity and four counts pertaining to
an alleged check-kiting scheme).' App. 3a, 5a. Mr.
Peugh is currently serving a 70-month prison term
for these offenses. See id. 6a. He and his cousin,
Steven Hollewell, were accused of engaging in a loan
fraud and check kiting scheme lasting from January
1999 to August 2000. Jd. 2a. Mr. Peugh’s cousin
received a 12-month sentence as a result of a
negotiated plea of guilty to one count, and the other
counts were dropped in exchange for Mr. Hollewell’s
testifying for the United States. Jd. 6a.
At sentencing, Mr. Peugh challenged the court’s
use of the 2009 Guidelines rather than the 1998
Guidelines in effect at the time of his offenses,”
asserting that using the newer Guidelines violated
1 Mr. Peugh was acquitted on bank fraud counts 1 and 2,
convicted of bank fraud count 3, acquitted on check-kiting
counts 6 and 7, and convicted of check-kiting counts 4, 5, 8 and
9. App. 3a, 5a.
2 The court of appeals referred throughout the opinion to the
“1999 Guidelines” (see, e.g., App. 5a, 8a), but the Guidelines in
effect in 1999 at the time of the offenses were actually published
in November 1, 1998, and thus are referred to in this petition as
the “1998 Guidelines.”
-5-
the Ex Post Facto Clause because they resulted in a
longer sentence not authorized at the time of the
offense. Jd. 5a, 28a; see also Defendant’s Objections
to Presentence Investigation Report 1-2, United
States v. Peugh, No. 08-CR-50014 (N.D. Ill. Apr. 2,
2010). The district court, relying on United States v.
Demaree, 459 F.3d 791, 795 (7th Cir. 2006), rejected
Peugh’s argument on the ground that the Guidelines
are not mandatory, but merely advisory. App. 28a
(“The court is bound by the holding in Demaree, and,
accordingly, the court overrules the defendant’s
objection to use of the 2009 guidelines manual.”).
Application of the 2009 Guidelines rather than
the 1998 Guidelines significantly increased the
Guidelines sentencing range. The presentencing
report calculated the offense level under the 1998
Guidelines as 19, but the Government argued in the
court of appeals that, if the 1998 Guidelines applied,
there should be an additional two-level enhancement
for obstruction of justice, bringing the total offense
level to 21. Brief for the United States, Plaintiff-
Appellee, at 11, United States v. Peugh, No. 10-2184
(7th Cir. July 5, 2011); see also U.S. SENTENCING
GUIDELINES MANUAL § 2F1.1 (Nov. 1, 1998) (App.
44a-46a) (for fraud offenses, including bank fraud,
the base offense level is 6, and 13 levels are added for
losses over $2.5 million); id. § 3C1.1 (two-level
enhancement for obstruction of justice) (App. 47a).
Under the 1998 Guidelines, a total offense level of 21
would result in a sentencing range of 37 to 46
months. Id. § 5A (App. 48a). By contrast, the district
court calculated a total offense level of 27 under the
2009 Guidelines: a base offense level of 7 (per
Amendment 653, to the Sentencing Guidelines,
effective November 1, 2003, App. 68a), and
-6-
enhancements of 18 levels for losses of at least $2.5
million (per Amendment 617, to the Sentencing
Guidelines, effective November 1, 2001, App. 64a-
67a), plus 2 levels for obstruction of justice.
Sentencing Transcript, United States v. Peugh, No. 08
CR 50014, Vol. 2, at 42 (N.D. Ill. May 4, 2010) App.
37a; see U.S. SENTENCING GUIDELINES MANUAL §§
2B1.1(a)(1), 2B1.1(b)(1)G), 3C1.1 (Nov. 1, 2009)3 (App.
52a-59a). The 2009 Guideline range for a total
offense level of 27 was 70-87 months. U.S.
SENTENCING GUIDELINES MANUAL § 5A (Nov. 1, 2009)
(App. 62a). The district court chose to impose the
lowest sentence within the 2009 Guidelines range (70
months) on Mr. Peugh. App. 2a; App. 17a; App. 40a-
41a. The district court expressed no opinion on the
sentence it would have imposed had it applied the
1998 Guidelines instead.
On appeal, Mr. Peugh again argued that his
sentencing violated the Ex Post Facto Clause,
because the 2009 Guidelines called for a sentence 33
to 41 months longer than called for under the 1998
Guidelines. App. 5a, 8a-9a. Retroactive application
of the 2009 Guidelines undeniably resulted in a
harsher sentence: Mr. Peugh’s 70-month sentence
was at the very bottom of the 2009 Guidelines range,
but was 24 months longer than even the top of the
1998 Guidelines range. See Brief of Marvin Peugh,
Defendant-Appellant at 30, United States v. Peugh,
3 Amendment 617 deleted the fraud-and-deceit guideline of
2F 1.1 and consolidated it with the general economic-crimes
guideline of 2B1.1. App. 64a-67a.
-7-
No. 10-2184 (7th Cir. April 21, 2011)*; compare App.
47a-5la and App. 59a-63a. The court of appeals, like
the district court, relied on Demaree in rejecting
Peugh’s argument. App. 8a.
REASONS FOR GRANTING THE PETITION
I. THE COURTS OF APPEALS ARE DEEPLY
DIVIDED ON THE QUESTION PRESENTED
The Ex Post Facto Clause “bar[s} enactments
which, by retroactive operation, increase’ the
punishment for a crime after its commission.”
Garner v. Jones, 529 U.S. 244, 249 (2000). “[C]entral
to the ex post facto prohibition is a concern for ‘the
lack of fair notice and governmental restraint” when
punishment is increased after the fact. Miller v.
Florida, 482 U.S. 423, 430 (1987) (quoting Weaver v.
Graham, 450 U.S. 24, 30 (1981)). Even where the
increase in punishment may depend on the exercise
of discretion, the Ex Post Facto Clause is violated if
the later enactment applied to the defendant’s
sentence “created a significant risk of increasing his
punishment.” Garner, 529 U.S. at 255.
The U.S. Sentencing Guidelines require that a
sentencing court “use the Guidelines Manual in effect
on the date that the defendant is sentenced,” but “[ilf
the court determines that use of the Guidelines
Manual in effect on the date that the defendant is
sentenced would violate the Ex Post Facto Clause of
4 The Seventh Circuit observed that as a result of application of
the 2009 Guidelines, “Peugh’s advisory range jumped by more
than 20 months,” App. 8a (Peugh, 675 F.3d at 741), but more
precisely it increased the upper limit of the range by 41 months,
resulting in a sentence 24 months above the top of the 1998
range.
-8-
the United States Constitution, the court shall use
the Guidelines Manual in effect on the date that the
offense of conviction was committed.” U.S.
SENTENCING GUIDELINES MANUAL § 1B1.11 (2009)
(App. 52a). In 2005, this Court held that “the federal
sentencing statute ... makes the Guidelines
effectively advisory. It requires a sentencing court to
consider Guidelines ranges, ..., but it permits the
court to tailor the sentence in light of other statutory
concerns as well.” Booker, 543 U.S. at 245—46
(Breyer, J., remedial majority opinion) (citations
omitted).
In the wake of Booker, an entrenched and
acknowledged split has arisen among the federal
courts of appeals on whether retroactive application
of Sentencing Guidelines adopted after’ the
commission of the offense can violate the Ex Post
Facto Clause. See, e.g., United States v. Ortiz, 621
F.3d 82, 86 (2d Cir. 2010) (application of Ex Post
Facto Clause to sentencing “has divided the courts of
appeals”), cert. denied, 131 S. Ct. 1813 (2011); United
States v. Wetherald, 636 F.3d 1315, 1320 (11th Cir.
2010) (“Our sister circuits have split on the impact of
Booker in regards to the Ex Post Facto Clause.”). In
Demaree, the Seventh Circuit held categorically that
the Ex Post Facto Clause no longer applies to
retroactive application of the Sentencing Guidelines,
because the Ex Post Facto Clause “appllies] only to
laws and regulations that bind rather than advise.”
459 F.3d at 795.
As the Solicitor General has stated in other cases,
five other courts of appeals (the D.C., Second, Fourth,
Sixth, and Eleventh Circuits) have expressly
“disagreed [with Demaree] and concluded that the
-9-
Guidelines may implicate the Ex Post Facto Clause
even though they are advisory.” Sandoval BIO at 11.
Rejecting “the facial analysis applied in Demaree”
and relying on Garner, the D.C. Circuit held that “the
existence of discretion does not foreclose an ex post
facto claim, as Demaree supposed.” United States v.
Turner, 548 F.3d 1094, 1100 (D.C. Cir. 2008).
Rather, the proper test is whether, as applied to the
defendant’s sentence, retroactive application of the
Sentencing Guidelines creates a significant risk of
increased incarceration. Jd. at 1098-1100 (citing
Garner, 529 U.S. at 251, and Miller, 482 U.S. at 432,
433, 435). The court reasoned that “practically
speaking, applicable Sentencing Guidelines provide a
starting point or ‘anchor’ for judges and are likely to
influence the sentences judges impose.” Jd. at 1099.
Judges are also more likely to impose sentences
within the Guidelines range because such sentences
are entitled to a presumption of reascnableness on
appeal. Jd. (citing Rita v. United States, 551 U.S. 338
(2007)). The Second, Fourth, Sixth, and Eleventh
Circuits have explicitly adopted the reasoning of
Taylor and rejected that of Demaree. See Ortiz, 621
F.3d at 86—88; United States v. Lewis, 606 F.3d 193,
199 (4th Cir. 2010); United States v. Lanham, 617
F.3d 873, 889—90 (6th Cir. 2010), cert. denied, 131 S.
Ct. 2443 (2011); Wetherald, 636 F.3d at 1322.
The disagreement in the circuits is wider than the
Government has acknowledged. In United States v.
Wood, 486 F.3d 781, 789-91 (3d Cir. 2007), the Third
Circuit, although not discussing Booker, vacated and
remanded a sentence because application of a post-
offense amendment of the Sentencing Guidelines
would violate the Ex Post Facto Clause. And in
United States v. Forrester, 616 F.3d 929, 946 (9th Cir.
-10-
2010), the Ninth Circuit remanded for resentencing
because the Ex Post Facto Clause prevented
application of Guidelines amended after the end date
of the conspiracy that “would impose a harsher
punishment than would the version in effect when
the offense was committed, [and thus] the court ‘shall
use the Guidelines Manual in effect on the date that
the offense of conviction was committed.” Id. at 946—
48 (quoting U.S. SENTENCING GUIDELINES MANUAL
§1B1.11, App. 52a); see also United States v. Reasor,
418 F.3d 466, 479 & n.12 (5th Cir. 2005) (holding
post-Booker that on remand the district court should
apply the earlier rather than the later advisory
guidelines to avoid ex post facto violations). Two
other circuits have embraced the majority rule in
dicta. See United States v. Carter, 490 F.3d 641, 643
(8th Cir. 2007) (noting that the “retrospective
application of the Guidelines implicates the ex post
facto clause” and rejecting the Demaree rule, but
finding that the defendant had forfeited the issue)
(internal quotation marks omitted); United States v.
Thompson, 518 F.3d 832, 869-70 (10th Cir. 2008)
(acknowledging under plain-error review that the Ex
Post Facto Clause was implicated when offender was
disadvantaged by application of Guidelines adopted
after the offense, but holding that the Guidelines
applied by the district court did not post-date the
offense). Finally, the First Circuit (while avoiding
the constitutional issue) applies a rule in conflict with
the Seventh Circuit’s. It follows a “commonsense
protocol,” under which courts “ordinarily employ the
{G]uidelines in effect at sentencing only where they
are as lenient as those in effect at the time of the
offense; when the [G]uidelines have been made more
severe in the interim, the version in effect at the time
-l]-
of the crime is normally used... .” United States uv.
Ricardo-Rodriguez, 630 F.3d 39, 42 (1st Cir. 2011)
(quoting United States v. Maldonado, 242 F.3d 1, 5
(ist Cir. 2001)).
Despite acknowledging the circuit split and its
isolation as the minority-rule circuit, the Seventh
Circuit has consistently rejected entreaties to
reconsider Demaree. That court denied petitions for
panel rehearing and rehearing en banc in Demaree
itself. 459 F.3d at 792. In the decision below, the
court stated: “We... stand by Demaree’s reasoning—
the advisory nature of the guidelines vitiates any ex
post facto problem—and again decline the invitation
to overrule it.” App. 8a; see also United States v.
Wasson, 679 F.3d 938, 951 (7th Cir. 2012) (declaring
that “f{ajlthough [the defendant] urges us to
reconsider our holding and reminds us that ours is a
minority view among the circuits, he offers nothing
new to convince us that we should change course on
this issue now”) (internal citations omitted); United
States v. Sandoval, 668 F.3d 865, 870 (7th Cir. 2011)
(noting that the court has “consistently upheld”
Demaree), cert. denied, 132 S. Ct. 1987 (2012); United
States v. Robertson, 662 F.3d 871, 876 (7th Cir. 2011)
(refusing to overrule Demaree); United States uv.
Favara, 615 F.3d 824, 829 (7th Cir. 2010) (Demaree
forecloses challenge to sentence based on Ex Post
Facto Clause), cert. denied, 131 S. Ct. 1812 (2011).
Accordingly, there is an entrenched split of authority
on this important constitutional question regarding
application of the Ex Post Facto Clause, which only
this Court can resolve.
-12-
Il. THE SEVENTH CIRCUIT'S DECISION IS
INCONSISTENT WITH SUPREME COURT
PRECEDENT AND DISREGARDS THE
SIGNIFICANT RISK THAT APPLYING
HARSHER GUIDELINES WILL RESULT IN
A LONGER SENTENCE.
Review is also warranted because the categorical
Demaree rule adopted by the Seventh Circuit is
irreconcilable with this Court’s precedent. Under the
Ex Post Facto Clause, an enactment that affords
discretion in determining criminal punishment
cannot be constitutionally applied if it “create[s] a
significant risk of increased punishment.” Garner,
529 U.S. at 255. Here, the 2009 Guidelines, even
though advisory, created just such a significant risk
that Peugh would suffer increased punishment. The
sentencing range calculated under the 2009
Guidelines (70-87 months) was nearly twice that
calculated under the 1998 Guidelines (37-46 months)
and influenced the sentence that the district court
imposed.
The significant risk that substantially increased
Guidelines ranges will result in_ increased
punishment derives from the very nature of the
Sentencing Reform Act post-Booker. The Guidelines,
even though advisory, are “the starting point and
initial benchmark” for sentencing. Gall v. United
States, 552 U.S. 38, 49 (2007). “The district courts,
while not bound to apply the Guidelines, must
consult those Guidelines and take them into account
when sentencing.” Booker, 543 U.S. at 264 (Breyer,
J., remedial majority opinion). If a district court
attempts to impose a sentence outside that range, it
“must consider the extent of the deviation [of the
-13-
intended sentence from the Guideline range] and
ensure that the justification is sufficiently compelling
to support the degree of the variance.” Gall, 552 U.S.
at 50 (emphasis added). Accordingly, even the
advisory Sentencing Guidelines “serve[ ] to cabin the
potential sentence that may be imposed,” Wetherald,
636 F.3d at 1321, and thus “are likely to influence the
sentences judges impose,” Turner, 548 F.3d at 1099;
accord Lewis, 606 F.3d at 199-203.
Moreover, the Guidelines provide a framework
that influences prosecutors’ and defendants’ plea
bargains. See, e.g., Stephanos Bibas, Plea Bargaining
Outside the Shadow of Trial, 117 HARV. L. REV. 2463,
2533 (2004) (discussing the Guidelines as mental
anchors that frame plea bargaining “by establishing
clear baselines for likely sentences after trial”). The
retroactive application of harsher Guidelines affects
not only the decision to plead guilty, but also the
offenses and conduct that the defendant will admit
and the sentence recommended by the prosecutor.
Application of the 1998 Guidelines may have affected
the Government's strategy with regard to plea offers,
as well as Mr. Peugh’s decision to plead not guilty to
all counts (nearly half of which eventually resulted in
acquittals) even in the face of his co-defendant Mr.
Hollewell’s decision to plead guilty to one count and
escape prosecution on the remaining counts. Harsher
Guidelines inexorably increase the risk that courts
will impose greater sentences of imprisonment than
they would have imposed under more lenient
Guidelines.
Finally, in Rita, this Court determined that “a
court of appeals may apply a presumption of
reasonableness to a district court sentence that
-14-
reflects proper application of the Sentencing
Guidelines.” Rita, 551 U.S. at 347. This presumption
provides a clear incentive to sentencing within the
Guidelines range: “judges are more likely to sentence
within the Guidelines to avoid the increased scrutiny
that is likely to result from imposing a sentence that
is outside the Guidelines.” Turner, 548 F.3d at 1099.
Not only is a district court more likely to sentence in
the Guideline range, but such sentences are more
likely to be upheld on appeal.
{O]nce a sentencing judge correctly applies
the Guidelines range, the defendant’s relief
is limited. [A court of appeals] will disturb
the sentence if, but only if, [it] is left with the
definite but firm conviction that the district
committed a clear error in judgment in
weighing the § 3553(a) factors by arriving at
a sentence that lies outside the range of
reasonable sentences dictated by the facts of
the case.
Wetherald, 636 F.3d at 1322 (internal quotation
marks omitted). Indeed, Booker, having excised the
constitutionally offensive provisions of the statute,
sought to ensure that sentencing under advisory
Guidelines would approximate sentencing under the
mandatory Guidelines system that Congress initially
devised. The critical “features” of the post-Booker
statute—district court consu!tation of the Guidelines
and appellate review of sentences for substantive
unreasonableness—“continue to move sentencing in
Congress’ preferred direction, helping tu avoid
excessive sentencing disparities while maintaining
flexibility sufficient to individualize sentences where
-]5-
necessary.” Booker, 543 U.S. at 264-65 (Breyer, J.,
remedial majority opinion).
For all these reasons, and others, the statistical
evidence has consistently revealed not much change
in sentencing practices post-Booker. Turner, 548 F.3d
at 1099. The vast majority of sentences imposed by
federal courts each year fall within the Guidelines
range. For example, excluding cases where the
government itself sought a departure or variance, 3
out of 4 times a court sentenced a federal offender
within the Guidelines range in fiscal year 2011; only
1 in 4 times did a court impose a sentence below the
Guidelines range. U.S. SENTENCING COMMISSION,
2011 ANNUAL REPORT 35-37 (2011). In most cases,
therefore, the Guidelines exert significant influence
over sentencing decisions and form the initial basis
for all sentencing.
There can be little doubt that application of the
2009 Guidelines created a significant risk that Mr.
Peugh suffered a longer sentence than he would have
received under the 1998 Guidelines. The district
court’s choice to sentence Mr. Peugh to 70 months’
imprisonment, at the very bottom of the 2009
Guidelines range, indicated that Mr. Peugh merited
the lowest punishment typically imposed for this type
of offense and offender. While it is theoretically
possible that the district court could have imposed
the same sentence under the 1998 Guidelines, an Ex
Post Facto Clause violation depends on the likely
practical effect on the actual sentence. Miller, 482
U.S. at 432; Turner, 548 F.3d at 1100. Here, this
Court need not speculate on the effect of the 2009
Guidelines because the district court explicitly
deferred to them. While acknowledging that it was
-16-
free to apply “its own penal philosophy,” the district
court stated that:
[T]he Seventh Circuit has cautioned that as
a matter of prudence and in recognition of
the Commission’s knowledge, experience,
and staff resources, an individual judge
should think long and _ =hard before
substituting his personal penal philosophy
for that of the Commission.
Here the Court does not disagree with the
policy implicit in Section 2B1.1 of imposing
increasingly stricter punishments’ on
defendants that cause increasingly larger
amounts of loss. ... I am not convinced this
general policy should be disregarded in this
particular case.
App. 34a-35a. After rejecting Peugh’s arguments for
a downward variance, the district court specifically
declared that it would defer to the 2009 Guidelines
range:
Here the loss amount exceeded $2.5 million,
which resulted in an 18-level enhancement.
However, when considering that the base
offense level is only seven and considering
the particular facts of this case, the court
does not disagree with the policy of imposing
a stricter punishment on defendants that
cause significant amounts’- of loss.
Accordingly, the court will give the amount
of loss calculations and _ the_ resulting
advisory guidelines range the appropriate
amount of deference in this case.
App. 37a (emphasis added).
-17-
The same “general policy” of “imposing
increasingly stricter punishments on defendants that
cause increasingly larger amounts of loss” in section
2B1.1 of the 2009 Guidelines was also present in
section 2F1.1 of the 1998 Guidelines; the only
relevant intervening changes were the increase in the
base offense levels and the increased enhancement
levels for this particular amount of loss, to which the
district court deferred without independent analysis.
See supra at 4-6. The 2009 Guidelines clearly caused
the district court to impose a longer sentence upon
Mr. Peugh than it would have imposed under the
1998 Guidelines. Having found Mr. Peugh barely to
deserve a sentence within the heartland of sentences
contemplated by the 2009 Guidelines, it is highly
unlikely that the district court (applying the 1998
Guidelines) would have found compelling
justifications to impose a sentence that would have
been 50% higher (and two years greater) than the
upper limit of the Guidelines range. Application of
the harsher 2009 Guidelines at a minimum created a
significant risk that Mr. Peugh received a longer
sentence than otherwise would have been imposed,
and thus contravened the Ex Post Facto Clause.
The Seventh Circuit’s categorical Demaree rule
forecloses the as-applied analysis of significant risk
required by this Court’s Ex Post Facto Clause
precedent. Indeed, the Seventh Circuit consciously
(and impermissibly) refused to apply the significant-
risk standard. The Demaree court acknowledged that
“(tlhe test for an ex post facto law has been variously
stated by the Supreme Court” to include “whether it
poses a significant risk of enhanced punishment,” and
such a standard would be satisfied by “even voluntary
sentencing guidelines, for official guidelines even if
-18-
advisory are bound to influence judge’s sentencing
decisions.” 459 F.3d at 794. Nonetheless, the
Demaree court decided that the touchstone of an ex
post facto violation should instead be the discretion of
the sentencing judge. “His choice of a sentence,
whether within or without the Guidelines range, is
discretionary”; “the applicable guideline nudges him
towards the sentencing range, but his freedom to
impose a reasonable sentence outside the range is
unfettered.”. Jd.5 The Demaree rule is thus a
conscious departure from the _ significant-risk
standard and flatly at odds with this Court’s
precedent. As this Court noted in Garner, “[t]he
presence of discretion does not displace the
protections of the Ex Post Facto Clause.” Garner, 529
U.S. at 253. Rather, “[t]he controlling inquiry” is
“whether retroactive application of the change in ...
law created ‘a sufficient risk of increasing the
measure of punishment attached to the covered
crimes.” TZId. at 250-51 (quoting Cal. Dep't of
Corrections v. Morales, 514 U.S. 499, 509 (1995)).
5 Demaree also involved very different facts, where the district
court sentenced the defendant to 30 months——-squarely within
the 27 to 33 month Guideline sentencing range in effect at the
time of sentencing—but stated on the record that the
defendant’s sentence under the more lenient Guidelines in effect
at the time of the offense (18 to 24 months) would have been an
upward deviation to 27 months. /d. at 792. There is no
comparable express determination in this case by the sentencing
court that the defendant’s sentence should have exceeded the
range calculated under the more ienient Guidelines, if those
were to apply. Moreover, the minimal difference between Ms.
Demaree’s sentence under the competing sets of Guidelines at
issue—3 months—limited the impact of the court’s decision
regarding which Guidelines should apply. In Mr. Peugh’s case,
the choice of which Guidelines to apply results in a sentencing
differential of 33-41 months.
-19-
This Court should grant review to resolve the circuit
split and vindicate the long-standing significant-risk
standard under the Ex Post Facto Clause.
Il. THE QUESTION PRESENTED AFFECTS
THOUSANDS OF SENTENCES.
The question presented is indisputably important.
It directly influences potentially thousands of
individuals sentenced by federal courts and the
federal policy of sentencing uniformity. Federal
courts used the Guidelines to sentence 86,201 federal
offenders in fiscal year 2011, and the Seventh Circuit
alone sentenced 3,064. U.S. SENTENCING
COMMISSION, 2011 SOURCEBOOK OF FEDERAL
SENTENCING STATISTICS tbl. 2. The Sentencing
Commission continually amends the Guidelines in
light of experience with federal sentencing, adopting
760 amendments to the Guidelines between 1987 and
2011, many of them substantive changes that affect
the calculation of sentencing ranges. See USS.
SENTENCING GUIDELINES MANUAL app. C, vols. I-III
(2011). Accordingly, the question will frequently
recur of whether Guidelines amended after the
commission of the offense may be applied consistently
with the Ex Post Facto Clause.
Furthermore, timely resolution of the circuit
conflict furthers the federal policy of sentencing
uniformity. Booker, 543 U.S. at 253 (Breyer, J.,
remedial majority opinion) (“Congress’ basic goal in
passing the Sentencing Act was to move the
sentencing system in the direction of increased
uniformity.”). It undermines uniformity if the district
courts in the Seventh Circuit apply completely
different Guidelines to a given offense than would all
the federal district courts in majority-rule circuits.
-20-
Because the conflict is about the application of a
constitutional provision, the U.S. Sentencing
Commission cannot resolve the split but must await
this Court’s resolution. Moreover, the circuit conflict
unfairly invites strategic prosecution by the
Government. In cases where there are alternative
venues, such as multi-state conspiracies, federal
prosecutors can choose to indict a defendant in the
Seventh Circuit to ensure harsher punishment (or
exert more leverage in plea negotiations). This
Court's immediate resolution of the circuit conflict
serves the interest of justice and fair sentencing.
IV. THIS CASE IS A CLEAN VEHICLE
The decision below presents the Court with a
clean vehicle for resolving the circuit split. As noted
above, in opposing other petitions for certiorari on
this issue, the government has acknowledged that the
“circuit conflict may warrant this Court’s review in
an appropriate case.” Sandoval BIO at 141;
Gabayzadeh BIO at 17. The facts of Sandoval and
Gabayzadeh that were unsuitable for certiorari are
not present here, making this case appropriate for
review.
Unlike the defendants in Sandoval and
Gabayzadeh, Mr. Peugh preserved this issue for
review by raising it at his sentencing hearing in the
district court and on appeal, and both courts
addressed it. App. 5a; App. 28a; supra at 4-7. By
contrast, the defendant in Sandoval did not raise the
issue until her appeal to the Seventh Circuit.
Because she had not preserved the issue, it could be
reviewed only for plain error. Sandoval BIO at 12.
The issue was likewise not preserved in Gabayzadeh.
See Gabayzadeh BIO at 7 (“Petitioner did not address
-2]-
th{fe ex post facto} question at any point in the
proceedings below, and neither the district court nor
the court of appeals addressed it.”).
Furthermore, the government argued in its
Sandoval brief that use of the newer Sentencing
Guidelines did not necessarily prejudice the
defendant, because her sentence still fell within the
range of the older guidelines. Sandoval BIO, at 13.
Mr. Peugh’s sentence under the 2009 Guidelines, in
contrast, fell far outside the 1998 Guidelines range,
and was indeed almost 50% greater than the upper
limit of that range. See supra at 5-7. His sentence
was at the very bottom of the 2009 range, implying
that the district court might well have imposed a
lower sentence if the range had been even lower. See
Turner, 548 F.3d at 1100. There is at least a
significant risk that the high 2009 Guidelines may
have influenced the district judge to impose a longer
sentence than he would have imposed under the 1998
Guidelines. Therefore, the Government cannot raise
the same claim of lack of prejudice that it raised in
Sandoval.
Finally, this Court often forgoes review in
sentencing cases when it is likely that a sentence will
expire before this Court could reach a decision. There
is no such risk of mootness here. Mr. Peugh received
his 70-month sentence in 2010, and thus he will
remain in custody throughout the October Term 2012
in which this case would be decided. This case is the
perfect vehicle for resolving the question presented.
-29.
CONCLUSION
For the foregoing reasons, this Court should grant
the petition for a writ of certiorari.
Respectfully submitted,
STEPHEN B. KINNAIRD
Counsel of Record
CANDICE CASTANEDA
Paul Hastings LLP
875 15th Street, N.W.
Washington, DC 20005
STEPHENKINNAIRD@PAULHASTINGS.COM
(202) 551-1700
ERIKA L. LEONARD
AMY E. JENSEN
Paul Hastings LLP
600 Peachtree St., Ste. 2400
Atlanta, GA 30308
(404) 815-2400
STEPHANOS BIBAS
University of Pennsylvania Law School
Supreme Court Clinic
3501 Sansom Street
Philadelphia, PA 19104
(215) 746-2297
-23-
ALLAN A. ACKERMAN
39 South LaSalle Street
Suite 1218
Chicago, IL 60603
(312) 332-2891
Counsel for Petitioner
July, 2012
APPENDIX
la
APPENDIX A
UNITED STATES COURT OF APPEALS,
SEVENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff—Appellee,
v.
MARVIN PEUGH,
Defendant—Appellant.
No. 10—2184.
Argued Sept. 20, 2011.
Decided March 28, 2012.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division,
Frederick J. Kapala, District Judge, Presiding.
D.C. No. 08-CR-50014-1
2a
Counsel Michael D. Love (argued), Attorney, Office
of the United States Attorney, Rockford, IL, for
Plaintiff—Appellee.
Allan A. Ackerman (argued), Attorney, Chicago, IL,
for Defendant—Appellant.
Before ROVNER, WOOD and WILLIAMS, Circuit
Judges.
OPINION
ROVNER, Circuit Judge:
Marvin Peugh was convicted after a jury trial of
five counts of bank fraud, sentenced to 70 months’
imprisonment, and ordered to pay nearly two million
dollars in restitution. He challenges his conviction
and sentence on the following grounds: that his
indictment was multiplicitous; that the prosecution
did not present sufficient evidence to prove his guilt
beyond a reasonable doubt; that his sentence violated
the ex post facto clause; that the district court
miscalculated the loss and restitution amounts; that
an enhancement for obstruction of justice should not
have been imposed; and that the disparity between
his sentence and his co-defendant’s was improper.
We affirm. ¢
I.
In 1996 Peugh and his first cousin, Steven
Hollewell, formed two companies to do business with
the farmers of [llinois: the Grainery, Inc., which
bought, stored, and sold grain, and Agri—Tech, Inc.,
which provided custom farming. services. to
landowners and tenants. When the Grainery began
to experience cash-flow problems in 1999, the cousins
obtained bank loans from the State Bank of Davis
3a
(later known simply as the State Bank) by falsely
representing that valuable contracts existed for
future grain deliveries from Agri-Tech to the
Grainery. They also inflated the balances of bank
accounts under their control by writing a series of
bad checks between accounts. As a result of these
activities, Peugh and Hollewell were charged with
two bank-fraud schemes—loan fraud and check
kiting—in violation of 18 U.S.C. § 1344.
The indictment alleged that from January 1999 to
August 2000 Peugh and Hollewell executed both
schemes multiple times. Counts 1~3 charged the two
men with defrauding State Bank of more than $2.5
million by supporting loan applications’ with
materially fraudulent and misleading information,
specifically, financial reports describing the sham
grain-delivery contracts between Agri—Tech and the
Grainery. According to the indictment, Peugh and
Hollewell applied for the first loan in January 1999
($2,000,000), the second in February 2000 ($200,000),
and the third in June 2000 ($350,000). Counts 4—9 of
the indictment charged Peugh and Hollewell with
five instances of check kiting by writing a series of
bad checks between business and personal accounts.
This scheme allowed the cousins to overdraw an
account at Savanna Bank by $471,000.
Peugh pleaded not guilty to all charges. Hollewell
pleaded guilty to one count of check kiting and agreed
to testify against Peugh in exchange for the other
counts being dropped.
At trial Hollewell testified that the grain-delivery
contracts between Agri—Tech and the Grainery were
a sham from the start: he and Peugh had never
intended for Agri—-Tech to deliver grain to the
4a
Grainery and Agri—Tech had no means to fulfill the
contracts. Hollewell’s admissions were supported by
the testimony of Bernard Reese, who was Agri—Tech’s
secretary and a member of its board of directors.
Reese explained that Agri—Tech did not own any
grain, that the board had never approved the buying
or selling of grain, and that he had never seen the
grain-delivery contracts before the _ criminal
investigation of Peugh and Hollewell began. A
representative from State Bank then testified that
approval of the Grainery loans depended on the
existence of the Agri—Tech grain-delivery contracts,
which composed nearly half of the Grainery’s assets
in contracts.
The jury also heard testimony about the check-
kiting scheme. An FBI expert on check kites
described his analysis of Peugh and Hollewell’s bank
records and testified that the cousins had engaged in
a check kite from April to August of 2000. Hollewell’s
father, Harlan Hollewell (“Harlan”), testified that his
son and Peugh came to him in August 2000 after
officials from Savanna Bank confronted them with an
overdraft of approximately $471,000. According to
Harlan, Peugh and Hollewell implored him to cover
this deficit—they told him that the bank was
demanding immediate payment and that they could
face jail time if he did not supply the money—and he
complied.
Peugh testified in his own defense. As to the
grain-delivery contracts between Agri—Tech and the
Grainery, he conceded that Agri—Tech had no grain to
sell, but he insisted that the contracts were
nonetheless made in good faith. Agri—Tech customers
were to supply the grain, he claimed, though he
5a
admitted that no Agri—Tech customer had actually
agreed to supply grain. Regarding the check kite,
Peugh maintained that he had not intended to
defraud Savanna Bank; the bank was never in
danger of loss, he said, because Harlan had
previously promised to cover any overdrafts. (Harlan
testified to the contrary.) Peugh could not explain,
however, why he and Holiewell risked the check kite
if Harlan was willing to supply the funds they
needed. The jury found Peugh guilty of the charges
in counts 3, 4, 5, 8, and 9 and acquitted him of the
rest.
At sentencing Peugh raised a number of objections
to the presentence report. He first argued that
sentencing him under the 2009 guidelines (then in
effect) rather than under the 1999 guidelines (in
effect at the time he committed his offenses) would
violate the ex post facto clause because it would
result in a significantly higher sentencing range. The
court rejected this argument based on United States
v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006), in
which we held that using the guidelines in effect at
the time of sentencing rather than the time of the
offense does not violate the ex post facto clause
because the guidelines are merely advisory.
Peugh also challenged the presentence report’s
loss-amount calculation, contending that the loss
amount should have been reduced by the interest he
paid on the loans. The court, however, agreed with
the government that the interest payments were
irrelevant because they did not reduce the loans’
outstanding principal balance. Peugh similarly
argued that the money Harlan paid to cover the bank
overdraft should be subtracted from the loss amount,
6a
but the court explained that Harlan made this
payment after the bank had detected the loss, and
only money paid to a victim before detection of an
offense can be deducted.
Peugh next objected to the presentence report's
restitution calculation, arguing that he should not
have to pay restitution for the loans described in
counts 1 and 2 because he was acquitted on those
counts. But the court concluded that the Mandatory
Victim Restitution Act required restitution to be
made for all three loans because a preponderance of
the evidence showed all three to have been part of the
loan-fraud scheme alleged in count 3, on which Peugh
was convicted.
Finally, Peugh contended that he should receive
the same prison sentence as Hollewell—12 months—
to avoid an unwarranted disparity in sentences. The
district court rejected this argument because, unlike
Hollewell, Peugh went to trial, did not assist the
government, and obstructed justice by perjuring
himself.
The court sentenced Peugh within the guidelines
to 70 months’ imprisonment and three years’
supervised release and made Peugh and Hollewell
jointly and severally liable for restitution in the
amount of $1,967,055.30. This was the total
outstanding balance due on the three loans, less what
the bank was able to recover by disposing of
collateral. The check-kiting money was not included
in the restitution amount because it had been repaid
by Harlan.
7a
II.
A. Multiplicity
On appeal Peugh argues for the first time that the
indictment in his case was multiplicitous. An
indictment is multiplicitous—and a violation of the
Fifth Amendment’s double jeopardy clause—if it
charges a single offense in more than one count. See
United States v. Hassebrock, 663 F.3d 906, 916 (7th
Cir. 2011); United States v. Allender, 62 F.3d 909, 912
(7th Cir. 1995). According to Peugh, counts 1—3
charged him three times with fraudulently obtaining
a single loan, and so his loan-fraud conviction should
be reversed. Because Peugh did not raise this issue
in the district court, we review for plain error. See
Hassebrock, 663 F.3d at 916.
There was no plain error in the district court’s
failure to strike counts 1-3 for multiplicity. The
indictment did not charge Peugh with fraudulently
obtaining just one loan; rather, counts 1~3 charged
him with fraudulently obtaining three loans in the
course of a single bank-fraud scheme. Each loan
constituted a separate “execution” of the scheme, and
each execution of a bank-fraud scheme can be
charged in a separate count. See, e.g., Allender, 62
F.3d at 912; United States v. Longfellow, 43 F.3d 318,
323 (7th Cir. 1994); United States v. De La Mata, 266
F.3d 1275, 1287 (11th Cir. 2001); United States v.
Colton, 231 F.3d 890, 909 (4th Cir. 2000). Conduct
generally qualifies as an “execution” rather than an
“act in furtherance” when it is chronologically and
substantively distinct and subjects the victim to
additional risk of loss. Longfellow, 43 F.3d at 323—24.
Here, although one bank made all of the loans, Peugh
and Hollewell applied for each loan at a different
8a
times with different supporting documents, and each
loan put the bank at additional risk of loss.
B. Sufficiency of Evidence
Peugh next contends that the prosecution failed to
prove one of the elements of his offense beyond a
reasonable doubt: his specific intent to defraud State
Bank. But intent need not be proved by direct
evidence; the jury was free to infer Peugh’s intent to
defraud from his actions—for instance his submitting
on three occasions fraudulent and misleading
information to State Bank in support of loan
applications—and disbelieve his contrary testimony.
See United States v. Howard, 619 F.3d 723, 727 (7th
Cir. 2010). Because a rational jury could have found
beyond a reasonable doubt that Peugh intended to
defraud State Bank, the evidence of his intent was
sufficient to support his conviction. See United States
v. Durham, 645 F.3d 883, 892 (7th Cir. 2011).
C. Ex Post Facto/ Demaree
Peugh renews his argument that the district court
violated the ex post facto clause by calculating his
sentence under the 2009 rather than the 1999
guidelines, which were in effect at the time he
committed his offenses. Under the 2009 guidelines,
Peugh’s advisory range jumped by more than 20
months. Peugh acknowledges that our holding in
United States v. Demaree, 459 F.3d 791, 795 (7th Cir.
2006), undercuts his position, but he urges us to
reconsider that case and overrule it. We, however,
stand by Demaree’s reasoning—the advisory nature of
the guidelines vitiates any ex post facto problem—
and again decline the invitation to overrule it, see,
e.g., United States v. Robertson, 662 F.3d 871, 876
(7th Cir. 2011); United States v. Holcomb, 657 F.3d
9a
445, 448—49 (7th Cir. 2011); United States v. Favara,
615 F.3d 824, 829 (7th Cir. 2010).
D. Loss Amount
Peugh maintains that the district court should
have reduced the loss amount by ‘213,000—the
interest he paid on the loans from State Bank—
because he gave this money to his victim before the
fraud was discovered. Under the guidelines, “money
returned ... to the victim before the offense was
detected” is to be credited against loss. U.S.S.G. §
2B1.1, Application Note 3(E)(i); United States v.
Hausmann, 345 F.3d 952, 960 (7th Cir. 2003).
We have not had occasion to address whether
interest payments should be credited against loss in
fraudulent loan cases, but we conclude that the
district court correctly declined to deduct Peugh’s
interest payments from the loss amount. These
payments were not money “returned” to State Bank:
they did not reduce the loans’ outstanding principal
balance; instead they were exchanged for value in the
form of time holding the bank’s money. See United
States v. Johnson, 16 F.3d 166, 171 (7th Cir. 1994)
(explaining that in fraudulent loan cases, loss is
measured “by the difference in value exchanged
rather than simply by the face value of the loan or by
the gross amount of money that changes hands”).
Moreover, the guidelines specify that “interest of any
kind” is to be excluded from the loss amount. See
U.S.S.G. § 2B1.1, Application Note 3(D)(i). This
implies that interest, whether paid or unpaid, is to
play no role in the loss calculation. In other words, if
interest accrued does not increase the loss amount—
and it did not here—then interest paid should not
reduce it either. See United States v. Allen, 88 F.3d
10a
765, 771 (9th Cir. 1996) (“[T]he district court used
only the loan principal to calculate the ‘amount of the
loan;’ it did not consider accrued interest. Therefore,
payments made toward interest cannot be considered
as repayments made on the loan.”); United States uv.
Coghill, 204 Fed.Appx. 328, 330 (4th Cir. 2006)
(unpublished) (holding that neither interest accrued
nor interest paid should factor into the loss amount).
Additionally, money spent to facilitate fraud is not
deductible from the loss amount, see United States v.
Spano, 421 F.3d 599, 607 (7th Cir. 2005), and Peugh’s
interest payments facilitated his loan-fraud scheme
by keeping him in good standing with State Bank
while he fraudulently obtained additional loans.
Peugh also contends, as he did in the district
court, that the loss amount should have been reduced
by the $471,000 that Harlan paid to cover the
cousins’ check-kiting overdraft. Harlan repaid this
money to Savanna Bank years before Peugh and
Hollewell were charged with a crime; according to
Peugh, this means that the money was returned
“before the offense was detected” by the victim. We
disagree. A victim can detect an offense without
understanding its full scope, and “[t]he time to
determine [the] loss in a check-kiting scheme is the
moment the loss is detected,” United States v. Mau,
45 F.3d 212, 216 (7th Cir. 1995). Savanna Bank
officials may have been unaware when _ they
demanded repayment that they had uncovered part
of a scheme involving at least 275 bad checks, but
this does not undermine the district court’s
conclusion that the bank detected Peugh’s offense as
soon as it discovered its loss.
lla
E. Restitution
Peugh renews his objection to paying restitution
in the amount of $1,967,055.30, which is the sum of
the outstanding balances of the three loans described
in counts 1—3, less collateral. He points out that the
jury acquitted him on counts 1 and 2 and that
restitution can be assessed only for losses related to a
count of conviction; thus, he reasons, he should only
have to pay restitution for the $350,000 loan
described in count 3.
Peugh is correct that he can be required to pay
restitution only for losses caused by crimes of which
he was convicted, see United States v. Frith, 461 F.3d
914, 920-21 (7th Cir. 2006); United States v. Belk,
435 F.3d 817, 819—20 (7th Cir. 2006), but he is wrong
that the district court should not have ordered him to
pay restitution for all three loans described in the
indictment. When a “scheme” is an element of the
offense of conviction—as it is in bank fraud, see 18
U.S.C. § 1344—the Mandatory Victim Restitution Act
requires restitution for the losses caused by the entire
scheme, even if the defendant is not convicted of all of
the conduct that caused loss. See 18 U.S.C. §
3663A(a)(2); Belk, 435 F.3d at 819-20. Here, Peugh
was convicted on count 3—which alleged that he
fraudulently obtained a $350,000 loan as part of a
broader scheme to defraud State Bank of more than
$2.5 million—and the district court found by a
preponderance of the evidence that the loans
described in counts 1 and 2 were part of that scheme.
Because restitution is calculated based on a
preponderance of the evidence, see 18 U.S.C. §
3664(e); United States v. Danford, 435 F.3d 682, 689
(7th Cir. 2006)—a lower standard than beyond a
12a
reasonable doubt—Peugh’s acquittals on counts 1 and
2 had no bearing on the amount of restitution to be
ordered for his conviction on count 3.
F. Enhancement for Obstruction of Justice (Perjury)
Peugh also argues that the district court abused
its discretion by raising his offense level by two on
the basis that he obstructed justice. We disagree.
The district court explained tha! the obstruction-of-
justice enhancement under U.S.S.G. § 3C1.1 was
appropriate in this case because Peugh perjured
himself at trial. The court cited evidence of Peugh’s
material, willful, and false statements, see United
States v. Ellis, 548 F.3d 539, 545 (7th Cir. 2008), by
discussing how his statements conflicted with the
testimony of Steven Hollewell, Harlan Hollewell, and
Bernard Reese. Peugh attributes these conflicts to
lies or outdated recollections on the part of the
others—noting for instance Harlan’s inability to
remember all the details of his business dealings with
his son and Peugh—but we see no reason to disturb
the «istrict court’s assessment of the testimony.
G. Sentencing Disparity
Finally, Peugh argues that the disparity between
his six-year sentence and Hollewell’s one-year
sentence was improper under 18 U.S.C. § 3553(a)(6),
which calls for similar sentences for similarly
situated defendants. He points out that neither he
nor Hollewell had prior convictions and that both
were charged with the same offenses. That, however,
is where the similarities end. Only Hollewell pleaded
guilty and cooperated with the government. Peugh
instead went to trial and obstructed justice by
perjuring himself. Such distinctions warrant
13a
disparate sentences. See United States v. Doe, 613
F.3d 681, 690—91 (7th Cir. 2010).
AFFIRMED.
l4a
APPENDIX B
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
Plaintiff,
V.
MARVIN PEUGH,
Defendant.
Case Number: 08 CR 50014-1
USM Number: 30209-424
Daniel J. Cain,
Defendant’s Attorney.
Date of Imposition of Judgment May 04, 2010.
Filed May 12, 2010
by
Michael W. Dobbins
Clerk, U.S. District Court.
JUDGMENT IN A CRIMINAL CASE
15a
The Defendant:
C1) Pleaded guilty to count(s)
C—C pleaded nolo contendere
to count(s) which was
accepted by the court.
& was found guilty on Three, Four, Five,
count(s) after a plea of not Eight, & Nine of the
guilty. Superseding
Indictment |
The defendant is adjudicated guilty of these
offenses:
Title & Nature of Offense
Section Offense Ended Count
18 USC § 1344 _ __— Bank fraud 06/05/2000 3s
18 USC § 1344 Bank Fraud 08/2000 4s
18 USC § 1344 BankFraud 07/12/2000 5s
18 USC § 1344 BankFraud 07/21/2000 8s & 9s
The defendant is sentenced as provided in pages 2
through 6 of this judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984.
&) The defendant has One, Two, Six, & Seven of the
been found not guilty Superseding Indictment
on count(s)
&} Count(s) Counts 1-9 of Original
Indictment (1 is & are
dismissed.
It is ordered that the defendant must notify the
United States attorney for this district within 30 days
of any change of name, residence, or mailing address
until all fines, restitution, costs, and _ special
16a
assessments imposed by this judgment are fully paid.
If ordered to pay restitution, the defendant must
notify the court and United States attorney of
material changes in economic circumstances.
05/04/2010
Date of imposition of
Judgment
Is/
Signature of Judge
Frederick J. Kapala, United
States District Judge
Name and Title of Judge
Date May 11, 2010
17a
IMPRISONMENT
The defendant is hereby committed to the custody
of the United States Bureau of Prisons to be
imprisoned for a total term of:
70 Months on Counts 3, 4, 5, 8 & 9 of the
Superseding Indictment to run concurrently.
v4)
The court makes the following recommendations
to the Bureau of Prisons:
The defendant should be designated to Oxford,
Wisconsin.
The defendant is remanded to the custody of the
United States Marshal.
The defendant shall surrender to the United
States Marshal for this district:
Cj at __ Cj) a.m. [J p.m. on
Cas notified by the United States Marshal.
The defendant shall surrender for service of
sentence at the institution designated by the
Bureau of Prisons:
before 2 p.m. on July 12, 2010
C as notified by the United States Marshal.
0 As notified by the Probation or Pretrial
Services Office.
18a
RETURN
I have executed this judgment as follows:
Defendant delivered on to
a , with a certified copy
of this judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED
STATES MARSHAL
SUPERVISED RELEASE
Upon release from imprisonment, the defendant
shall be on supervised release for a term of:
3 Years on Counts 3, 4, 5, 8, & 9 of the
Superseding Indictment to run concurrently.
The defendant must report to the probation office
in the district to which the defendant is released
within 72 hours of release from the custody of the
Bureau of Prisons.
The defendant shall not commit another federal,
state or local crime.
The defendant shall not unlawfully possess a
controlled substance. The defendant shall refrain
from any unlawful use of a controlled substance. The
defendant shall submit to one drug test within 15
days of release from imprisonment and at least two
periodic drug tests thereafter, as determined by the
court.
19a
[(] The above drug testing condition is suspended,
based on the court's determination that the
defendant poses a low risk of future substance
abuse. (Check, if applicable.)
& The defendant shall not possess a firearm,
ammunition, destructive device, or any other
dangerous weapon. (Check, if applicable.)
& The defendant shall cooperate in the collection of
DNA as directed by the probation officer. (Check,
if applicable.)
[]) The defendant shall comply’ with the
requirements of the Sex Offender Registration
and Notification Act (42 U.S.C. § 16901, et seq.)
as directed by the probation officer, the Bureau of
Prisons, or any state sex offender registration
agency in which he or she resides, works, is a
student, or was convicted of a qualifying offense.
(Check, if applicable.)
(1) The defendant shall participate in an approved
program for domestic violence. (Check, if
applicable.)
If this judgment imposes a fine or restitution, it is
a condition of supervised release that the defendant
pay in accordance with the Schedule of Payments
sheet of this judgment.
The defendant must comply with the standard
conditions that have been adopted by this court as
well as with any additional conditions on the
attached page.
STANDARD CONDITIONS OF SUPERVISION
(1) the defendant shall not leave the judicial
district without the permission of the court or
20a
probation officer;
(2) the defendant shall report to the probation
officer and shall submit a truthful and complete
written report within the first five days of each
month;
(3) the defendant shall answer truthfully all
inquiries by the probation officer and follow the
instructions of the probation officer;
(4) the defendant shall support his or her
dependents and meet other family responsibilities;
(5) the defendant shall work regularly at a lawful
occupation, unless excused by the probation officer for
schooling, training, or other acceptable reasons;
(6) the defendant shall notify the probation officer
at least ten days prior to any change in residence or
employment;
(7) the defendant shall refrain from excessive use
of alcohol and shall not purchase, possess, use,
distribute, or administer any controlled substance or
any paraphernalia related to any _ controlled
substances, except as prescribed by a physician;
(8) the defendant shall not frequent places where
controlled substances are illegally sold, used,
distributed, or administered;
(9) the defendant shall not associate with any
persons engaged in criminal activity and shall not
associate with amy person convicted of a felony,
unless gra *!od permission to do so by the probation
officer;
(10) the defendant shall permit a probation officer
to visit him or her at any time at home or elsewhere
2la
and shall permit confiscation of any contraband
observed in plain view of the probation officer;
(11) the defendant shall notify the probation
officer within seventy-two hours of being arrested or
_ questioned by a law enforcement officer;
(12) the defendant shall not enter into any
agreement to act as an informer or a special agent of
a law enforcement agency without the permission of
the court; and
(13) as directed by the probation officer, the
defendant shall notify third parties of risks that may
be occasioned by the defendant's criminal record or
personal history or characteristics and shal] permit
the probation officer to make such notifications and
to confirm the defendant’s compliance with such
notification requirement.
SPECIAL CONDITIONS OF SUPERVISION
(1) If the special assessment and restitution are
not paid in full during the term of incarceration,
then, during the term of supervised release, the
defendant shall pay to the clerk of court at least ten
percent of the defendant’s gross earnings minus
federal and state income tax withholding to satisfy
these obligations.
(2) The defendant shall notify the court and the
Attorney General of any material change in the
defendant’s economic circumstances that might affect
the defendant’s ability to pay restitution.
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal
monetary penalties under the schedule of payments
on Sheet 6.
22a
Assessment Fine Restitution
TOTALS $500.00 $ $ 1,967,055.30
[) The determination of restitution is deferred
until . An Amended Judgment in a Criminal
Case (AO 245C) will be entered after such
determination.
& The defendant must make restitution (including
community restitution) to the following payees in
the amount hsted below.
If the defendant makes a partial payment,
each payee shall receive an approximately
proportioned payment, unless specified otherwise
in the priority order or percentage payment
column below. However, pursuant to 18 U.S.C.
§ 3664(i), all nonfederal victims must be paid
before the United States is paid.
Name of Restitution Priority or
Payee Total Loss* Ordered Percentage
State Bank 1,967,055.30 1,967,055.30
1718S. Dirck
Drive
Freeport,
IL 61032
TOTALS $ 1,967,055.30 §$ 1,967,055.30
C) Restitution amount ordered pursuant to plea
agreement $
* Findings for the total amount of losses are required under
Chapters 109A, 110, 110A, and 113A of Title 18 for offenses
committed on or after September 13, 1994, but before April 23,
1996.
23a
& The defendant must pay interest on restitution
and a fine of more than $2,500, unless the
restitution or fine is paid in full before the
fifteenth day after the date of the judgment,
pursuant to 18 U.S.C. § 3612(f). All of the
payment options on Sheet 6 may be subject to
penalties for delinquency and default, pursuant
to 18 U.S.C. § 3612(g).
C) The court determined that the defendant does not
have the ability to pay interest and it is ordered
that:
[J the interest requirement is waived for the ()
fine () restitution.
[) the interest requirement for the [) fine (J
restitution is modified as follows:
SCHEDULE OF PAYMENTS
Having assessed the defendant's ability to pay.
payment of the total criminal monetary penalties is
due as follows:
A (© Lump sum payment of $ due
immediately, balance due
[) not later than , or
[J] in accordance [J] C, 0 D, 0 E, or O F
below; or
B ®& Payment to begin immediately (may be
combined with (] C, (11 D, or & F below); or
C (] Payment in equal (e.g., weekly,
monthly, quarterly) installments of $
over a period of (e.g., months or
24a
years), to commence (e.g., 30 or
60 days) after the date of this judgment; or
D (J Payment in equal (e.g., weekly,
monthly, quarterly) installments of $
over a period of (e.g., months or
years), to commence (e.g., 30 or
60 days) after release from imprisonment to a
term of supervision; or
E () Payment during the term of supervised
release will commence within (e.g., 30
or 60 days) after release from imprisonment.
The court will set the payment plan based on
an assessment of the defendant’s ability to
pay at that time; or
F & Special instructions regarding the payment
of criminal monetary penalties:
Payments to be made through the inmate
financial responsibility program.
Unless the court has expressly ordered otherwise,
if this judgment imposes imprisonment, payment of
criminal monetary penalties is due during
imprisonment. All criminal monetary penalties,
except those payments made through the Federal
Bureau of Prisons’ Inmate Financial Responsibility
Program, are made to the clerk of the court.
The defendant shall receive credit for all
payments previously made toward any criminal
monetary penalties imposed.
GJ Joint and Several
Defendant and Co-Defendant Names and Case
Numbers (including defendant number), Total
Od
25a
Amount, Joint and Several Amount, and
corresponding payee, if appropriate.
Marvin Peugh, 08 CR 50014-1, Total Amount:
$1,967,055.30, Joint & Several Amount:
$1,967,055.30 Steven Hollewell, 08 CR 50014-2,
Total Amount $1,967,055.30, Joint & Several
Amount $1,967,055.30
The defendant shall pay the cost of prosecution.
The defendant shall pay the following court
cost(s):
The defendant shall forfeit the defendant’s
interest in the following property to the United
States:
Payments shall be applied in the following order:
(1) assessment, (2) restitution principal,
(3) restitution interest, (4) fine principal, (5) fine
interest, (6) community restitution, (7) penalties, and
(8) costs, including cost of prosecution and court
costs.
26a
APPENDIX C
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Vv.
MARVIN PEUGH,
Defendant.
Docket Number: 08 CR 50014
VOLUME 2
TRANSCRIPT OF PROCEEDINGS
(Sentencing Hearing)
BEFORE THE HONORABLE
FREDERICK J. KAPALA
Rockford, Illinois
Tuesday, May 4, 2010
1:30 o’clock p.m.
27a
APPEARANCES:
For the Government:
HON. PATRICK J. FITZGERALD
United States Attorney
(308 West State Street,
Rockford, IL 61101) by
MR. MICHAEL D. LOVE
Assistant U.S. Attorney
For the Defendant:
SREENAN & CAIN
(321 West State Street, Suite 803,
Rockford, IL 61101) by
MR. DANIEL J. CAIN
MR. CHRISTOPHER A. DE RANGO
Also Present:
MR. BRUCE BUHR
Special Agent, FBI
MS. JENNIFER TABORSKI
Probation Office
Court Reporter:
Mary T. Lindbloom
211 South Court Street
Rockford, Illinois 61101
(815) 987-4486
28a
/Excerpt Page 28]
First defendant argues that the application of the
1999 guidelines manual would have resulted in a
much lower total offense level than is calculated
under the current manual, and, therefore, using the
2009 guidelines manual, quote, imposes a significant
risk of enhanced punishment and is violative of the
ex post fact clause facto clause of them Constitution.
The defendant recognizes that the Seventh Circuit
decision in United States v. Demaree, which held
that a post-offense change in an advisory guidelines
range does not create an ex post facto violation, but
nonetheless continues to pursue this argument. The
court is bound by the holding in Demaree, and,
accordingly, the court overrules the defendant’s
objection to the use of the 2009 guidelines manual.
[Excerpt Pages 90-107]
I thank everyone for their efforts in helping to
resolve these difficult issues. I’ve considered the
presentence report and accompanying materials. I’ve
considered the arguments made by the government
and the defendant. I’ve considered the evidence
that’s been presented, as well as the defendant’s
statement. I’ve considered the sentencing guideline
calculations and all of the other sentencing factors
contained in Section 3553(a).
The defendant has been found guilty of five counts
of bank fraud. With regard to determining an
appropriate sentence, the guidelines calculations
have taken into account the loss amount, the fact
that the defendant obstructed justice, and his lack of
criminal history.
29a
I agree with the government that Mr. Peugh is
more responsible for the loan fraud. In the count
involving loan fraud, the defendant took a leadership
role. I hold Mr. Hollewell and Mr. Peugh equally
responsible for the check kiting offenses. I think
Mr. Cain was right and I can see where he could
conclude that during Mr. Hollewell’s sentencing I
said that Mr. Peugh was more responsible. I think
Mr. Love has pointed out that I said that he urged
and directed Mr. Hollewell in the check kiting
scheme, but as I sit here now, I think they were both
equally responsible for that.
I note that the fraud perpetrated by the defendant
was an elaborate scheme. This was just not one
instance of bad judgment. These offenses occurred
over an extended period of time. The defendant
literally had years in which to reflect on what he was
doing and numerous opportunities to terminate his
dishonest conduct.
In mitigation, the defendant has completed his
associate’s degree and has held steady employment
throughout his life. He has had no prior history of
arrests. The defendant’s family is aware of his arrest
and these offenses and remains supportive. He has
the support of a great many people who have taken
time away from their lives and their jobs and their
activities to come here to court and demonstrate their
high regard for him.
I note that this offense did not result in any
physical harm to another person.
I note that the loss amount is just above the loss
calculation that resulted in an offense level increase
of 18. The next highest level increase is seven
million.
30a
I note, as Kevin Walsh observed, that he has
endured much public scrutiny and professional
discredit. He’s received numerous letters of support.
These letters are replete with statements describing
the defendant as a kind, hardworking, sincere,
generous, caring, and thoughtful person. The
witnesses testifying today give the defendant high
praise.
Clyde Pitts notes that the defendant is so
considerate that he does not plow or plant when the
wind is blowing toward Mr. Pitts’ house or the
clothesline. It’s difficult for me to reconcile a person
who is so thoughtful with the man who committed
these offenses and caused literally millions of dollars
in losses. In the eyes of the writers of these letters,
Marvin Peugh is a good man, but sometimes people
who are otherwise good commit illegal acts.
I tried as hard as [I am able to make his trial as
fair as possible. He had the assistance of one of the
finest trial attorneys I know. Twelve people worked
very hard on this case as jurors. They considered all
the evidence, and, as we know, there was quite a bit
of it. They deliberated sincerely and earnestly and
unanimously came to a verdict. I am sure the jury
didn’t treat this case lightly. In fact, they acquitted
Mr. Peugh of four of the nine counts pending against
him.
Some people persist in the belief that Mr. Peugh
did not commit this crime or these crimes, but they
did not, as the jury did, see and hear all of the
evidence presented in court. 1 believe that he did
commit these crimes. I don’t think that Marvin
Peugh is an evil person, but sometimes desperate
situations lead people to do desperate things.
3la
Mr. Peugh broke the law, and when a person breaks
the law in a small way, he pays a small price, but
when a person breaks the law in a serious way, he
pays a high price.
Sentencing is a very unpleasant part of my job. I
dislike telling people who in other circumstances
could be close acquaintances, close friends that he
has to go to jail as punishment for committing a
crime. I'll tell you what. Id rather have root canal
work than tell Marvin Peugh he has to go to jail, but I
am charged with the duty and the obligation to
impose the penalty in this case.
I recognize the need for the sentence imposed to
reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment
for the offense. The sentence must afford adequate
deterrence to criminal conduct. I believe there is a
great and urgent need for the sentence in this case to
be a general deterrence to other people that might be
in a position to or consider doing these kinds of
offenses. I feel there is little need to protect the
public from further crimes of the defendant.
In his motion for a downward variance, the
defendant argues that a sentence below the advisory
guideline range is the most appropriate sentence in
this case. In support of this argument, defendant
references several considerations under Section
3553(a), such as the nature and circumstances of the
offense, including his motives for committing the
bank fraud, the history and characteristics of the
defendant, including his age and lack of criminal
history, and the need to avoid unwarranted
sentencing disparities.
32a
The court has carefully considered defendant’s
arguments, but at the same time it is important to
recognize that there are several
3553(a) considerations present in this case that do
not favor a sentence below the guideline range.
Therefore, the court will be mindful of all the Section
3553(a) factors while considering the defendant’s
arguments.
First, the defendant argues that this court should
consider cases from other district courts within the
circuit that have sentenced defendants to below
guideline ranges in fraud cases where the defendant
was motivated by something other than a desire for
profit or for personal financial gain. In support of
this argument, defendant cites United States v.
Milne, and United States v. Ranum, which somewhat
interestingly are both authored by the same judge. I
note initially that as district court cases, they would
only be persuasive authority, not binding precedent,
but after a review of these cases, I am not convinced
that a below guideline sentence is warranted in the
case.
In Milne the defendant caused a bank to suffer a
loss of more than $500,000, but then he voluntarily
reported his misconduct and cooperated with the
bank in attempting to repay his debt, doing all this
well before he was implicated in or charged with
criminal activity. In addition to considering other
factors, such as the character of the defendant, the
court found that a reduced sentence was appropriate
because the standard reduction for acceptance of
responsibility did not fully account for defendant’s
voluntary reporting of his misconduct to the bank and
his significant early efforts to ameliorate the effects
33a
of such conduct. Those same considerations are not
present in this case.
While it is true that the Milne court remarked
that it was relevant that the defendant did not spend
the bank’s money on luxury items, but rather to prop
up a failing business, it is unclear how much weight
the court gave this consideration, and, in any event,
it is evident that it was not the primary reason for
the variance.
Moreover, the court rejects defendant’s suggestion
that his fraud was not driven by desire for profit or
for personal gain just because he did not spend the
money on luxury items. The fact of the matter is that
if the Grainary would have done well, the defendant
would have profited by that success.
Similarly, the court finds the opinion in Ranum
distinguishable from the facts of this case. In Ranum
a bank loan officer exceeded his authority by making
repeated loans to a company over an extended period
of time. Once the company’s business plan failed, it
could not repay the loan, thereby causing the bank a
loss. The court noted that the defendant’s culpability
was mitigated in that he did not act for personal] gain
or for improper personal gain of another.
In this case, as I’ve said, the court finds that the
defendant did act for personal gain, even if indirectly,
by defrauding the banks into either giving his
business a loan it should not have been given or by
putting the banks at risk through the check kiting.
Thus the court does not find that the defendant’s
motive for committing these offenses warrants any
significant consideration in terms of mitigation.
34a
Instead the court finds from its consideration of
the nature and circumstances of the offenses that
defendant committed some serious crimes with some
very serious consequences. Through his actions and
schemes, the defendant caused a loss of over 2.5
million to the banks that were unfortunate enough to
do business with him.
Moreover, rather than owning up to his
wrongdoing when the Grainary continued to fail,
despite the fraudulently obtained loans, _ the
defendant compounded his criminal activity by
employing the check kiting scheme to keep the
business afloat. In doing so, the defendant knowingly
put various banks at risk of losing substantial
amounts of money. Accordingly, on balance, the court
finds that the nature and circumstances of the
offense indicate the need for a strong sentence, not a
more lenient one.
In a similar argument the defendant argues that
the fraud guidelines rely too much on the amount of
loss in determining the advisory sentencing range,
that the Sentencing Commission failed to rely on
empirical data when revising these guidelines, and,
therefore, that these guidelines are not entitled to
any deference.
It is true that after Kimbrough a sentencing judge
can have his own penal philosophy at variance with
that of the Sentencing Commission, but as noted in
United States v. Higdon, 531 F.3d 561, the Seventh
Circuit has cautioned that as a matter of prudence
and in recognition of the Commission’s knowledge,
experience, and staff resources, an individual judge
should think long and hard before substituting his
35a
personal penal philosophy for that of the
Commission.
Here the court does not disagree with the policy
implicit in Section 2B1.1 of imposing increasingly
stricter punishments on defendants that cause
increasingly larger amounts of loss. As_ the
background comment to Guideline Section 2B1.1
notes, ordinarily the sentences of defendants
convicted of federal offenses should reflect the nature
and magnitude of the loss caused or intended by their
crimes. Accordingly, along with other relevant
factors under the guidelines, loss serves as a measure
of the seriousness of the offense and the defendant’s
relative culpability. I am not convinced that this
general policy should be disregarded in this
particular case. I believe the authority defendant
cites in support of his position is distinguishable from
the circumstances of this case.
For example, defendant cites to a sentencing
memorandum from the Southern District of New
York, United States v. Adelson, again a district court
decision that does not carry the weight of binding
authority. In that case the defendant was a chief
operating officer and president of a publicly traded
corporation who engaged in a conspiracy to
materially overstate his company’s financial results
and thereby artificially inflating the price of its stock.
After the fraud was discovered, the share price
declined by 88 percent, resulting in a combined loss,
according to the government, of no less than $260
million. This amount, combined with other
sentencing enhancements, resulted in a suggested
sentence of life imprisonment. Noting that other
factors impacted the stock price, the district court
36a
rejected the government’s proposed loss amount and
found that the defendant’s intended loss of between
50 to a hundred million was a more accurate
approximation of the harm caused by the offenses.
Nevertheless, the loss amount still results in a 24-
level increase that when combined with several other
guidelines enhancements resulted in a recommended
guideline sentence of life imprisonment, which the
court in New York called an absurd guideline result
that not even the government seriously defended.
After commenting extensively on several Section
3553(a) factors, the judge in Adelson concluded that a
sentence of three and a half years’ imprisonment,
coupled with a $50 million restitution amount, was
the most appropriate sentence.
This case is quite different from Adelson in that it
does not involve nearly the same amount of loss and
certainly does not result in a, quote, absurd guideline
recommendation of life imprisonment. Thus I am not
persuaded that Adelson requires it to reject the policy
behind Section 2B1.1 and in particular the use of loss
amount as a determinative factor.
Likewise, the Bowman article that the defendant
relies on discusses high profile fraud cases involving
officers of public companies and cites as example the
Enron case and the WorldCom case. In addition, in
order to illustrate his point that the recommended
sentences for these types of offenders has grown
astronomically high, Bowman demonstrates the
changes that have occurred over a period of time in
the recommended guidelines range for a hypothetical
corporate CEO convicted of securities laws violations
that resulted in a loss of over 400 million. Because
this article focuses on offenders at the extreme end of
37a
the guidelines loss calculation, I don’t believe it is
very helpful or persuasive in a case such as this
where the loss amount is much smaller.
Here the loss amount exceeded 2.5 million, which
resulted in an 18-level enhancement. However, when
considering that the base offense level in this case is
only seven and considering the particular facts of this
case, the court does not disagree with the policy of
imposing a stricter punishment on defendants that
cause significant amounts of loss. Accordingly, the
court will give the amount of loss calculations and the
resulting advisory guidelines range the appropriate
amount of deference in this case.
In his motion for a downward variance, the
defendant also makes several arguments concerning
his history and characteristics that are properly
considered under Section 3553(a). For instance, the
defendant argues that his age of 56 and his lack of
criminal history demonstrate that a lengthy term of
imprisonment is not needed for deterrence or to
protect the public from further crimes of the
defendant. The government does not disagree with
this assessment, but it does argue that these factors
need to he considered in combination with all of the
Section 3553(a) factors.
The court agrees that the defendant’s age, which
is not taken into account by the guidelines, and his
lack of criminal history, which is accounted for by the
guidelines, make it unlikely that the defendant will
commit additional crimes in the future. These factors
can sometimes support a variance below the
guideline range. For this proposition I'll direct the
parties to United Statesv. Carter, 538 F.3d 784,
stating that a district court may properly consider a
38a
defendant's age as it relates to the possibility of him
committing crimes in the future, and United States v.
Middlebrook, 553 F.3d 572, noting that the district
court took into account the defendant’s lack of prior
criminal record. But these cases do not, of course,
mandate a sentence below the guideline range.
I note, for example, United States v. Alday, 542
F.3d 571, in which the district court determined that
the defendant’s age of 64 did not warrant a lower
sentence, and United Statesv. Hewelt, 295 Fed.
Appx. 69, noting that the district court rejected the
defendant’s request for a below guideline sentence
based in part on his age and the fact that he had no
prior criminal history.
The court has considered the defendant’s age and
lack of criminal history, but finds that these factors
are insufficient by themselves to support a sentence
below the guideline range given the other Section
3553(a) considerations, including the seriousness of
the offense and the need for general deterrence,
which I said I find is high in a case such as this one.
The defendant also argues that his conduct should
be considered aberrant behavior in an otherwise law-
abiding life. Defendant cites to the aberrant behavior
departure provision in the guidelines, Section 5K1.20,
but that departure obviously would not apply because
the defendant did not commit, quote, a_ single
criminal occurrence or a single criminal transaction,
close quote. These offenses involved significant
planning, and the offenses were not of limited
duration.
Nevertheless, the defendant argues that the court
should reject these requirements because the
Sentencing Commission failed to fulfill its
39a
institutional role in promulgating this provision. The
court finds no basis to disregard these reasonable
restrictions as they merely define the parameters of
what the Sentencing Commission felt was aberrant
behavior.
In this case there is no question in my mind that
the defendant’s criminal conduct, which was drawn
out over a long period of time, does not qualify as
aberrant behavior. Accordingly, the court rejects
defendant’s request for an aberrant behavior
departure or variance.
Another Section 3553(a) factor to consider is the
need to provide restitution to any victims of the
offense. Defendant argues that this factor warrants a
sentence below the guidelines range because if he is
imprisoned for an extended period of time, he will not
be able to generate income from farming or maintain
the leases he has for the land he rents for farming.
As Mr. Love notes, given the defendant’s earning
capacity and the amount of restitution, it does not
appear that a variance would have a significant
impact on his ability to satisfy the restitution in this
case. Also, it is true that in any case where
imprisonment is ordered along with restitution, the
imprisonment will make restitution more difficult to
pay. In any event, under the facts and circumstances
of this case, the court does not deem the ability to pay
restitution as a significant factor to support a
variance.
Finally, defendant argues that based on the need
to avoid unwarranted sentencing disparities, he
should be given a sentence consistent with the
sentence imposed on Steven Hollewell. I disagree
with that proposition and find that any resulting
40a
sentencing disparities are wholly warranted in this
case. Mr. Hollewell pled guilty before trial. He
showed a willingness to assume responsibility for his
conduct, acknowledged his culpability, and assured
the swift application of correctional measures to him.
He did not obstruct justice by committing perjury
during trial. These facts alone constitute a five-level
difference in the total offense level calculation under
the sentencing guidelines.
In addition to that, Mr. Hollewell also helped with
the government’s investigation and testified against
the defendant at trial, thereby providing substantial
assistance to the government. This resulted in a
substantial downward departure pursuant to Section
5K1.1, further demonstrating that a difference in
sentences among these codefendants is warranted.
Finally, the court recognized at the sentencing
hearing for Mr. Hollewell that his role in securing the
fraudulent obtained bank loans was minimal in
comparison to Mr. Peugh’s involvement. This also
suggests a wide difference in sentences is proper.
In view of the foregoing, I have determined that a
sentence within the guideline range is the most
appropriate sentence in this case. I conclude that a
sentence sufficient but not greater than necessary to
comply with the purpose set forth in paragraph two of
Section 3553(a)is as follows. I believe probation
would deprecate the seriousness of the offender's
conduct and would improperly minimize his
culpability and would be inconsistent with the ends of
justice.
The defendant is hereby committed to the custody
of the United States Bureau of Prisons to be
imprisoned for a total term of 70 months on each
4la
count, three, four, seven, eight, and nine. This jail
sentence is to be served concurrently on all the
counts.
Upon release from imprisonment, the defendant
shall serve a term of supervised release of three years
on each of the counts to be served concurrently. The
defendant shall comply with the standard conditions
contained in the supervised release order and shall
also comply with the following conditions. The
defendant shall not possess a firearm, ammunition,
destructive device, or any other dangerous weapon.
The defendant shall cooperate with the collection of
DNA as directed by the probation officer.
In regard to a fine, I have also considered the
factors contained in Section 3572. The court declines
to impose a fine in this case because the defendant is
unable to pay a fine and is not likely to be able to do
so. The defendant shall pay a special assessment of
$100 on each count, for a total special assessment of
$500. That amount is due immediately.
As to restitution, the government argues in its
sentencing memorandum that the submission
included in the third supplemental report -- |
misstated that. The government argues in its
sentencing memorandum and the _ submission
included in the third supplemental report that
restitution is owed to State Bank based on the entire
scheme to defraud, which includes the loans
referenced in Counts 1 and 2, for a total amount of
$1,967,055.30. The court agrees that this amount is
properly included as restitution and will be reflected
in the judgment. The restitution obligation will be
joint and several with Mr. Peugh’s codefendant,
Steven Hollewell.
42a
The defendant indicated at the _ previous
sentencing hearing that he objected to the inclusion
of the loans referenced in Counts 1 and 2 because he
was acquitted of those charges. It is true that
restitution generally is limited to the loss caused by
the crimes of which the defendant stands convicted.
However, as the Seventh Circuit tells us in United
States v. Belk, 435 F.3d 817, in a case in which the
defendant is convicted of a scheme to defraud,
restitution for the whole scheme is in order.
Here defendant in Count 3 of the superseding
indictment was convicted of a scheme to defraud
State Bank which began in or about January 1999
and continued through August of 2000, the object of
which was to acquire loans totaling in excess of 2.5
million. Although each count, including Count 3,
alleged a separate execution of the scheme, the
defendant nevertheless was convicted of the entire
scheme. Accordingly, the entire loss amount to State
Bank is' properly included in the_ restitution
calculation.
In regard to restitution, I have also considered the
factors contained in Sections 3663 and 3664. I will
order that the defendant shall pay restitution of
$1,967,055.30 to State Bank in Freeport, [llinois.
That restitution is joint and several with the
restitution obligation of Steven Hollewell. That
restitution amount is due immediately.
During the term of incarceration, payment of the
special assessment and restitution shall be made in
accordance with the Bureau of Prisons Inmate
Financial Responsibility Program. If the outstanding
special assessment and restitution obligation are not
paid in full during the term of incarceration, then
43a
during his term of supervised release and as a
condition of that supervised release, the defendant
shall pay to the Clerk of the Court at least 10 percent
of the defendant’s gross earnings minus federal and
state income tax withholding to satisfy the special
assessment and restitution obligation.
The defendant shall notify the court and Attorney
General of any material change in his economic
circumstances that might affect the defendant’s
ability to pay restitution.
44a
APPENDIX D
1998 FEDERAL SENTENCING
GUIDELINES MANUAL
§2F 1.1. d it; ry; ~
Vv in er rfeit Instruments
Other than Counterfeit Bearer Obligations of
the United States
(a) Base Offense Level: 6
(b) Specific Offense Characteristics
(1) If the loss exceeded $2,000, increase the
offense level as follows:
Loss (Apply the Greatest) Increase in Level
(A) $2,000 or less no increase
(B) More than $2,000 add 1
(C) More than $5,000 add 2
(D) More than $10,000 add 3
(EK) More than $20,000 add 4
(F) More than $40,000 add 5
(G) More than $70,000 add 6
(H) More than $120,000 add 7
(1) More than $200,000 add 8
(J) More than $350,000 add 9
(K) More than $500,000 add 10
(L) More than $800,000 add 11
(M) More than $1,500,000 add 12
45a
(N) More than $2,500,000 add 13
(O) More than $5,000,000 add 14
(P) More than $10,000,000 add 15
(Q) More than $20,000,000 add 16
(R) More than $40,000,000 add 17
(S) More than $80,000,000 add 18.
(2) If the offense involved (A) more than minimal
planning, or (B) a scheme to defraud more than one
victim, increase by 2 levels.
(3) If the offense was committed through mass-
marketing, increase by 2 levels.
(4) If the offense involved (A) a misrepresentation
that the defendant was actiag on behalf of a
charitable, educational, religious’ or political
organization, or a government agency; or (B) violation
of any judicial or administrative order, injunction,
decree, or process not addressed elsewhere in the
guidelines, increased by 2 levels. If the resulting
offense level is less than level 10, increase to level 10.
(5) If (A) the defendant relocated, or participated
in relocating, a fraudulent scheme to another
jurisdiction to evade law enforcement or regulatory
officials; (B) a substantial part of a fraudulent scheme
was committed from outside the United States; or (C)
the offense otherwise involved sophisticated means,
increase by 2 levels. If the resulting offense level is
less than level 12, increase to level 12.
46a
(6) If the offense involved (A) the conscious or
reckless risk of serious bodily injury; or (B)
possession of a dangerous weapon (including a
firearm) in connection with the offense, increase by 2
levels. If the resulting offense level is less than level
13, increase to level 13.
(7) If the offense —
(A) substantially jeopardized the safety and
soundness of a financial institution; or
(B) affected a financial institution and the
defendant derived more than $1,000,000 in gross
receipts from the offense,
increase by 4 levels. If the resulting offense level is
less than level 24, increase to level 24.
(c) Special Instruction
(1) If the defendant is convicted under 18 U.S.C.
§ 1030(a)(4), the minimum guideline sentence,
notwithstanding any other adjustment, shall be six
months’ imprisonment.
47a
§3C1.1. structi or Impeding the
Administration of Justice
If (A) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the
administration of justice during the course of the
investigation, prosecution, or sentencing of the
instant offense of conviction, and (B) the
obstructive conduct related to (i) the defendant’s
offense of conviction and any relevant conduct; or
(ii) a closely related offense, increase the offense
level by 2 levels.
CHAPTER FIVE-
DETERMINING THE SENTENCE
PART A - SENTENCING TABLE
The Sentencing Table used to determine the
guideline range follows:
48a
SENTENCING TABLE
(in months of imprisonment)
Criminal History Category
(Criminal History Points)
Offense I II Ill
Level | (0 or 1) (2 or 3) (4,5,6)
1 0-6 0-6 0-6
2 0-6 0-6 0-6
3 0-6 0-6 0-6
4 0-6 0-6 0-6
Zone A 5 os o6 | 1-7
6 0-6 1-7 2-8
7 0-6 2-8 4-10
8 0-6 | 4-10 6-12
y 4-10 6-12 | 814
Zone B y
10 6-12 8-14 10-16
Zone C 11 8-14 10-16 | 12-18
12 10-16 | 12-18 15-21
13 12-18 15-21 18-24
14 15-21 18-24 21-27
15 18-24 21-27 24-30
16 21-27 24-30 27-33
17 24-30 27-33 30-37
18 27-33 30-37 33-41
19 30-37 23-41 37-46
20 33-41 37-46 41-51
21 37-46 41-51 46-57
49a
Criminal History Category
(Criminal History Points)
Vv Vi
Offense IV (10, 11, (13 or
Level | (7, 8, 9) 12) _ more)
1 0-6 0-6 0-6
Zone A 2 0-6 oe | 1-7
3 0-6 | 2-8 3-9
4 2-8 4-10 6-12
Zone B 5 4-10 6-12 |} 9-15
6 6-12 9-15 12-18
Zone C , | oe 12-18 15-21
8 10-16 15-21 18-24
9 12-18 18-24 21-27
10 15-21 21-27 24-30
11 18-24 24-30 27-33
12 21-27 27-33 30-37
13 24-30 30-37 33-41
14 27-33 33-41 37-46
15 30-37 37-46 41-51
16 33-41 41-51 46-57
17 37-46 46-57 51-63
18 41-51 51-63 57-71
19 46-57 57-71 63-78
20 51-63 63-78 70-87
21 57-71 70-87 77-96
50a
Criminal History Category
(Criminal History Points)
Offense I II iil
Level |(Oorl) (2or3) (4,5,6)
22 41-51 46-57 51-63
23 46-57 51-63 57-71
24 51-63 57-71 63-78
25 57-71 63-78 70-87
26 63-78 70-87 78-97
27 70-87 78-97 87-108
Zone D
28 78-97 87-108 97-121
29 87-108 97-121 108-135
30 97-121 108-135 121-151
31 108-135 121-151 135-168
32 121-151 135-168 151-188
33 135-168 151-188 168-210
34 151-188 168-210 188-235
35 168-210 188-235 210-262
36 188-235 210-262 235-293
37 210-262 235-293 262-327
38 235-293 262-327 292-365
39 262-327 292-365 324-405
40 292-365 324-405 360-life
41 324-405 360-life 360-life
42 360-life 360-life 360-life
43 life life life
5la
Criminal Mistory Category
(Criminal History Points)
Vv VI
Offense IV (10, 11, (13 or
Level | (7, 8, 9) _ 12) more)
22 63-78 77-96 84-105
23 70-87 84-105 92-115
24 77-96 92-115 100-125
25 84-105 100-125 110-137
26 92-115 110-137 120-150
27 100-125 120-150 130-162
Zone D
28 110-137 130-162 140-175
29 121-151 140-175 151-188
30 135-168 151-188 168-210
31 151-188. 168-210 188-235
32 168-210 188-235 210-262
33 188-235 210-262 235-293
34 210-262 235-293 262-327
35 235-293 262-327 292-365
36 262-327 292-365 324-405
37 292-365 324-405 360-life
38 324-405 360-life 360-life
39 360-life 360-life 360-life
40 360-life 360-life 360-life
41 360-life 360-life 360-life
42 360-life 360-life 360-life
43 life life
life
52a
APPENDIX E
2009 FEDERAL SENTENCING GUIDELINES
MANUAL
§1B1.11. Use of Guidelines Manual in Effect on
Date of Sentencing (Policy Statement)
(a) The court shall use the Guidelines Manual in
effect on the date that the defendant is sentenced.
(b) (1) If the court determines that use of the
Guidelines Manual in effect on the date that the
defendant is sentenced would violate the ex post facto
clause of the United States Constitution, the court
shall use the Guidelines Manual in effect on the date
that the offense of conviction was committed.
(2) The 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. However, if a court applies
an earlier edition of the Guidelines Manual, the court
shall consider subsequent amendments, to the extent
that such amendments are clarifying rather than
substantive changes.
(3) If the defendant is convicted of two offenses,
the first committed before, and the second after, a
revised edition of the Guidelines Manual became
effective, the revised edition of the Guidelines
Manual is to be applied to both offenses.
53a
§2B1.1. Larceny. Embezzlement, and Other
For Oo . n nvolvi en
Property: Property Damage or Destruction:
Fraud and Deceit: r 4 nses Involvin
Altered or Counterfeit Instruments Other than
Counterfeit Bearer Obligations of the United
States
(c) Base Offense Level:
(1) 7, if (A) the defendant was convicted of an
offense referenced to this guideline; and (B) that
offense of conviction has a statutory maximum term
of imprisonment of 20 years or more; or
(2) 6, otherwise.
(d) Specific Offense Characteristics
(1) If the loss exceeded $5,000, increase the
offense level as follows:
Loss (Apply the Greatest) Increase in Level
(A) $5,000 or less no increase
(B) More than $5,000 add 2
(C) More than $10,000 add 4
(D) More than $30,000 add 6
(E) More than $70,000 add 8
(F) More than $120,000 add 10
(G) More than $200,000 add 12
(H) More than $400,000 add 14
(I) More than $1,000,000 add 16
(J) More than $2,500,000 add 18
(K) More than $7,000,000 add 20
54a
(L) More than $20,000,000 add 22
(M) More than $50,000,000 add 24
(N) More than $100,000,000 add 26
(O) More than $200,000,000 add 28
(P) More than $400,000,000 add 30.
(2) (Apply the greatest) If the offense—
(A) (i) involved 10 or more victims; or (ii) was
committed through mass-marketing, increase by 2
levels;
(B) involved 50 or more victims, increase by 4
levels; or
(C) involved 250 or more victims, increase by 6
levels.
(3) If the offense involved a theft from the person
of another, increase by 2 levels.
(4) If the offense involved receiving stolen
property, and the defendant was a person in the
business of receiving and selling stolen property,
increase by 2 levels.
(5) If the offense involved misappropriation of a
trade secret and the defendant knew or intended that
the offense would benefit a foreign government,
foreign instrumentality, or foreign agent, increase by
2 levels.
(6) If the offense involved theft of, damage to,
destruction of, or trafficking in, property from a
national cemetery or veterans' memorial, increase by
2 levels.
(7) lf (A) the defendant was convicted of an
offense under 18 U.S.C. § 1037; and (B) the offense
55a
involved obtaining electronic mail addresses through
improper means, increase by 2 levels.
(8) If the offense involved (A) a misrepresentation
that the defendant was acting on behalf of a
charitable, educational, religious, or political
organization, or a government agency; (B) a
misrepresentation or other fraudulent action during
the course of a bankruptcy proceeding; (C) a violation
of any prior, specific judicial or administrative order,
injunction, decree, or process not addressed
elsewhere in the guidelines; or (D) a
misrepresentation to a consumer in connection with
obtaining, providing, or furnishing financial
assistance for an institution of higher education,
increase by 2 levels. If the resulting offense level is
less than level 10, increase to level 10.
(9) If (A) the defendant relocated, or participated
in relocating, a fraudulent scheme to another
jurisdiction to evade law enforcement or regulatory
officials; (B) a substantial part of a fraudulent scheme
was committed from outside the United States; or (C)
the offense otherwise involved sophisticated means,
increase by 2 levels. If the resulting offense level is
less than level 12, increase to level 12.
(10) If the offense involved (A) the possession or
use of any (i) devicemaking equipment, or (ii)
authentication feature; (B) the production or
trafficking of any (i) unauthorized access device or
counterfeit access device, or (ii) authentication
feature; or (C)(i) the unauthorized transfer or use of
any means of identification unlawfully to produce or
obtain any other means of identification, or (11) the
possession of 5 or more means of identification that
unlawfully were produced from, or obtained by the
56a
use of, another means of identification, increase by 2
levels. If the resulting offense level is less than level
12, increase to level 12.
(11) If the offense involved conduct described in
18 U.S.C. § 1040, increase by 2 levels. If the resulting
offense level is less than level 12, increase to level 12.
(12) If the offense involved an organized scheme
to steal or to receive stolen (A) vehicles or vehicle
parts; or (B) goods or chattels that are part of a cargo
shipment, increase by 2 levels. If the resulting offense
level is less than level 14, increase to level 14.
(13) If the offense involved (A) the conscious or
reckless risk of death or serious bodily injury; or (B)
possession of a dangerous weapon (including a
firearm) in connection with the offense, increase by 2
levels. If the resulting offense level is less than level
14, increase to level 14.
(14) (Apply the greater) If—
(A) the defendant derived more than
$1,000,000 in gross receipts from one or more
financial institutions as a result of the offense,
increase by 2 levels; or
(B) the offense (i) substantially jeopardized the
safety and soundness of a financial institution; (11)
substantially endangered the solvency or financial
security of an organization that, at any time
during the offense, (1) was a publicly traded
company; or (IJ) had 1,000 or more employees; or
(iii) substantially endangered the solvency or
financial security of 100 or more victims, increase
by 4 levels.
(C) The cumulative adjustments from
57a
application of both subsections (b)(2) and
(b)(14)(B) shall not exceed 8 levels, except as
provided in subdivision (D).
(D) If the resulting offense level determined
under subdivision (A) or (B) is less than level 24,
increase to level 24.
(15) If (A) the defendant was convicted of an
offense under 18 U.S.C. § 1030, and the offense
involved an intent to obtain personal information, or
(B) the offense involved the unauthorized public
dissemination of personal information, increase by 2
levels.
(16) (A) (Apply the greatest) If the defendant was
convicted of an offense under:
G) 18 U.S.C. § 1030, and the offense involved a
computer system used to maintain or operate a
critical infrastructure, or used by or for a government
entity in furtherance of the administration of justice,
national defense, or national security, increase by 2
levels.
(ii) 18 U.S.C. § 1030(a)(5)(A), increase by 4 levels.
(iii) 18 U.S.C. § 1030, and the offense caused a
substantial disruption of a critical infrastructure,
increase by 6 levels.
(B) If subdivision (A)({iii) applies, and the
offense level is less than level 24, increase to level
24.
(17) If the offense involved —
(A) a violation of securities law and, at the
time of the offense, the defendant was (i) an officer
or a director of a publicly traded company; (ii) a
58a
registered broker or dealer, or a person associated
with a broker or dealer; or (iii) an investment
adviser, or a person associated with an investment
adviser; or
(B) a violation of commodities law and, at the
time of the offense, the defendant was (i) an officer
or a director of a futures commission merchant or
an introducing broker; (ii) a commodities trading
advisor; or (ili) a commodity pool operator,
increase by 4 levels.
(e) Cross References
(1) If (A) a firearm, destructive device, explosive
material, or controlled substance was taken, or the
taking of any such item was an object of the offense;
or (B) the stolen property received, transported,
transferred, transmitted, or possessed was a firearm,
destructive device, explosive material, or controlled
substance, apply §2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses);
Attempt or Conspiracy), §2D2.1 (Unlawful
Possession; Attempt or Conspiracy), §2K1.3
(Unlawful Receipt, Possession, or Transportation of
Explosive Materials; Prohibited Transactions
Involving Explosive Materials), or §2K2.1 (Unlawful
Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving
Firearms or Ammunition), as appropriate.
(2) If the offense involved arson, or property
damage by use of explosives, apply §2K1.4 (Arson;
Property Damage by Use of Explosives), if the
resulting offense level is greater than _ that
determined above.
59a
(3) If (A) neither subdivision (1) nor (2) of this
subsection applies; (B) the defendant was convicted
under a _ statute proscribing false, fictitious, or
fraudulent statements or representations generally
(e.g. 18 U.S.C. § 1001, § 1341, § 1342, or § 1343); and
(C) the conduct set forth in the count of conviction
establishes an offense specifically covered by another
guideline in Chapter Two (Offense Conduct), apply
that other guideline.
(4) If the offense involved a cultural heritage
resource, apply §2B1.5 (Theft of, Damage to, or
Destruction of, Cultural Heritage Resources;
Unlawful Sale, Purchase, Exchange, Transportation,
or Receipt of Cultural Heritage Resources), if the
resulting offense level is greater than that
determined above.
§3C1.1. Obstructing __ or Impeding the
Administration of Justice
If (A) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the
administration of justice with respect to the
investigation, prosecution, or sentencing of the
instant offense of conviction, and (B) the obstructive
conduct related to (i) the defendant's offense of
conviction and any relevant conduct; or (ii) a closely
related offense, increase the offense level by 2 levels.
CHAPTER FIVE-
DETERMINING THE SENTENCE
PART A - SENTENCING TABLE
The Sentencing Table used to determine the
guideline range follows:
Zone A
Zone B
Zone C
60a
SENTENCING TABLE
(in months of imprisonment)
Criminal History Category
(Criminal History Points)
Offense I II Ill
Level | (0 or 1) (2 or 3) (4, 5, 6)
1 0-6 0-6 0-6
2 0-6 0-6 0-6
3 0-6 0-6 0-6
4 0-6 0-6 0-6
5 0-6 0-6 1-7
6 0-6 1-7 2-8
7 0-6 2-8 4-10
8 0-6 4-10 6-12
9 4-10 6-12 8-14
10 6-12 8-14 10-16 _
11 8-14 10-16 | 12-18
12 10-16 12-18 15-21
13 12-18 15-21 18-24
14 15-21 18-24 21-27
15 18-24 21-27 24-30
16 21-27 24-30 27-33
17 24-30 27-33 30-37
18 27-33 30-37 33-41
19 30-37 33-41 37-46
20 33-41 37-46 41-51
21 37-46 41-51 46-57
Zone A
Zone B
Zone C
6la
Criminal History Category
(Criminal History Points)
Vv VI
Offense IV (10, 11, (13 or
Level | (7, 8, 9) 12) more)
1 0-6 0-6 0-6
2 0-6 0-6 1-7
3 0-6 2-8 3-9
4 2-8 4-10 6-12
5 4-10 6-12 9-15
6 6-12 9-15 12-18
7 8-14 12-18 15-21
8 10-16 15-21 18-24
9 12-18 18-24 21-27
10 15-21 21-27 24-30
11 18-24 24-30 27-33
12 21-27 27-33 30-37
13 24-30 30-37 33-41
14 27-33 33-41 37-46
15 30-37 37-46 41-51
16 33-41 41-51 46-57
17 37-46 46-57 51-63
18 41-51 51-63 57-71
19 46-57 57-71 63-78
20 51-63 63-78 70-87
21 57-71 70-87 77-96
62a
Criminal History Category
(Criminal History Points)
Offense I II Ill
Level | (Oor 1) (2 or 3) (4, 5, 6)
22 41-51 46-57 51-63
23 46-57 51-63 57-71
24 51-63 57-71 63-78
25 57-71 63-78 70-87
26 63-78 70-87 78-97
27 70-87 78-97 87-108
Zone D
28 78-97 87-108 97-121
29 87-108 97-121 108-135
30 97-121 108-135 121-151
31 108-135 121-151 135-168
32 121-151 135-168 151-188
33 135-168 151-188 168-210
34 151-188 168-210 188-235
35 168-210 188-235 210-262
36 188-235 210-262 235-293
37 210-262 235-293 262-327
38 235-293 262-327 292-365
39 262-327 292-365 324-405
40 292-365 324-405 360-life
41 324-405 360-life 360-life
42 360-life 360-life 360-life
43 life life life
63a
Criminal! History Category
(Criminal History Points)
Vv VI
Offense IV (10, 11, (13 or
Level | (7, 8,9) 12) more)
22 63-78 77-96 84-105
23 70-87 84-105 92-115
24 77-96 92-115 100-125
25 84-105 100-125 110-137
26 92-115 110-137 120-150
27 100-125 120-150 130-162
Zone D
28 110-137 130-162 140-175
29 121-151 140-175 151-188
30 135-168 151-188 168-210
31 151-188 168-210 188-235
32 168-210 188-235 210-262
33 188-235 210-262 235-293
34 210-262 235-293 262-327
35 235-293 262-327 292-365
36 262-327 292-365 324-405
37 292-365 324-405 360-life
38 324-405 360-life 360-life
39 360-life 360-life 360-life
40 360-life 360-life 360-life
41 360-Llife 360-life 360-life
42 360-life 360-life 360-life
43 life life life
64a
APPENDIX F
2001 FEDERAL SENTENCING GUIDELINES
AMENDMENT
617. Amendment:
A replacement guideline with accompanying
commentary is inserted as §2B1.1 (Larceny,
Embezzlement, and Other Forms of Theft; Offenses
Involving Stolen Property; Property Damage or
Destruction; Fraud and Deceit; Forgery; Offenses
Involving Altered or Counterfeit Instruments Other
than Counterfeit Bearer Obligations of the United
States).
Chapter Two is amended by striking Part F in its
entirety as follows:
“PART F - OFFENSES INVOLVING
FRAUD OR DECEIT
§2F 1.1. Fraud and Deceit; Forgery;
Offenses Involving Altered or Counterfeit
Instruments Other than
Bearer Obligations of the United States
(a) Base Offense Level: 6
(b) Specific Offense Characteristics
(1) If the loss exceeded $2,000, increase the
offense level as follows:
65a
Loss (Apply the Greatest) Increase in Level
(A) $2,000 or less no increase
(B) More than $2,000 add 1
(C) More than $5,000 add 2
(D) More than $10,000 add 3
(E) More than $20,000 add 4
(F) More than $40,000 add 5
(G) More than $70,000 add 6
(H) More than $120,000 add 7
(1) More than $200,000 add 8
(J) More than $350,000 add 9
(K) More than $500,000 add 10
(L) More than $800,000 add 11
(M) More than $1,500,000 add 12
(N) More than $2,500,000 add 13
(O) More than $5,000,000 add 14
(P) More than $10,000,000 add 15
(Q) More than $20,000,000 add 16
(R) More than $40,000,000 add 17
(S) More than $80,000,000 add 18.
(2) If the offense involved (A) more than
minimal planning, or (B) a scheme to defraud
more than one victim, increase by 2 levels.
(3) If the offense was committed through
mass-marketing, increase by 2 levels.
66a
(4) If the offense involved (A) a
misrepresentation that the defendant was
acting on behalf of a charitable, educational,
religious or political organization, or a
government agency; or (B) a misrepresentation
or other fraudulent action during the course of
a bankruptcy proceeding; or (C) a violation of
any prior, specific judicial or administrative
order, injunction, decree, or process not
addressed elsewhere in the guidelines, increase
by 2 levels. If the resulting offense level is less
than level 10, increase to level 10.
(5) If the offense involved—
(A) the possession or use of any device-
making equipment;
(B) the production or trafficking of any
unauthorized access device or counterfeit
access device; or
(C) G) the unauthorized transfer or use
of any means of identification unlawfully to
produce or obtain any other means of
identification; or (ii) the possession of 5 or
more means of identification that
unlawfully were produced from another
means of identification or obtained by the
use of another means of identification,
increase by 2 levels. If the resulting offense
level is less than level 12, increase to level 12.
(6) If (A) the defendant relocated, or
participated in relocating, a fraudulent scheme
to another jurisdiction to evade law
enforcement or regulatory officials; (B) a
substantial part of a fraudulent scheme was
67a
committed from outside the United States; or
(C) the offense otherwise involved
sophisticated means, increase by 2 levels. If
the resulting offense level is less than level 12,
increase to level 12.
(7) If the offense involved (A) the conscious
or reckless risk of serious bodily injury; or (B)
possession of a dangerous weapon (including a
firearm) in connection with the offense,
increase by 2 levels. If the resulting offense
level is less than level 13, increase to level 13.
(8) If the offense —
(A) substantially jeopardized the safety
and soundness of a financial institution; or
(B) affected a financial institution and
the defendant derived more _ than
$1,000,000 in gross receipts from the
offense,
increase by 4 levels. If the resulting offense
level is less than level 24, increase to level 24.
(c) Special Instruction
(1) If the defendant is convicted under 18
U.S.C. § 1030(a)(4), the minimum guideline
sentence, notwithstanding any other
adjustment, shall be Six months’
imprisonment.
Effective Date: The effective date of this
amendment is November 1, 2001.
68a
APPENDIX G
2003 FEDERAL SENTENCING GUIDELINES
AMENDMENT
653. Amendment: Sections 2Bl.1, 2E5.3, 2J1.2,
and 274.1, effective January 25, 2003 (see USSC
Guidelines Manual Appendix C (Volume ID),
Amendment 647), are repromulgated with the
following changes:
Section 2B1.1 is amended by striking subsection
(a) as follows:
"(a) Base Offense Level: 6”,
and inserting the following:
"(a) Base Offense Level:
(2)7, if (A) the defendant was convicted of an
offense referenced to this guideline; and (B) that
offense of conviction has a statutory maximum
term of imprisonment of 20 years or more; or
(3)6, otherwise."....
Effective Date: The effective date of this
amendment is November 1, 2003.
OPPOSITION
BRIEF
No. 12-62
Jn the Supreme Court of the Gnited States
MARVIN PEUGH, PETITIONER
Vv.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
DONALD B. VERRILLI, JR.
Solicitor General
Counsel of Record
LANNY A. BREUER
Assistant Attorney General
WILLIAM C. BROWN
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the Ex Post Facto Clause required the dis-
trict court to consult the version of the advisory Sen-
tencing Guidelines in effect at the time of petitioner’s
offenses, rather than the version in effect at the time of
his sentencing, in determining the appropriate sentence
under 18 U.S.C. 3553(a).
(I)
TABLE OF CONTENTS
Page
RIT xcocsissesinsiipncusigianbieiannieniiniienistetaiiiainienutesisitineniunnuttasiniitiae 1
SITTIN cssicncccsccmmnacuinennnenessilignesinimiiiagenietiiienabipnutataitiaiiadidseatiiatinesiiaas 1
TTT asi ssseceitennisentceapeenieiiemtebeiidincinncialesia es diebdibdihatiaibanaaiaiasininaiuniaiaiiaait l
ER cer cccrieremnmnnnmnnnemnnnmnninenmns 5
SII csnicstiicnsaeaiihbeiiierieiniaaantinasiletdainaaitaaiasepc anal initeaaialite 13
TABLE OF AUTHORITIES
Cases:
Dorsey v. United States, 132 S. Ct. 2321 (2012) ......... 10
Gall v. United States, 552 U.S. 38 (2007) ................. 6, 7, 10, 11
Hensley v. United States, 130 S. Ct. 1284 (2010).................... 5
Irizarry v. United States, 553 U.S. 708 (2008).................. 7,12
Kimbrough v. United States, 552 U.S. 85 (2007) ................ 3,7
Nelson v. United States, 555 U.S. 350 (2009) .........0....0..0.0.. 12
Miller v. Florida, 482 U.S. 423 (1987) .........cccccccceecceeeteeeeeeeeeees 5
Pepper v. United States, 131 S. Ct. 1229 (2011)........ 2,3, 7, 11
Rita v. United States, 551 U.S. 338 (2007)................... 6, 10, 11
Spears v. United States, 555 U.S. 261 (2009)............ccceeeeees 7
United States v. Booker, 543 U.S. 220 (20085) ................ 2, 6, 10
United States v. Deegan, 605 F.3d 625 (8th Cir. 2010),
cert. denied, 131 S. Ct. 2094 (2011)... eens 9,11
United States v. Demaree, 459 F.3d 791 (7th Cir. 2006),
cert. denied, 551 U.S. 1167 (2007) ..............ccccccccceseeeeees 4,5,8
United States v. Forrester, 616 F.3d 929 (9th Cir. 2010)....... g
United States v. Gilmore, 599 F.3d 160 (2d Cir. 2010)......... 11
United States v. Lanham, 617 F.3d 873 (6th Cir. 2010),
cert. denied, 131 S. Ct. 2443 (2011) 20... eeceeeeeeseeneeeees 9
United States v. Lewis, 606 F.3d 193 (4th Cir. 2010) ............. )
United States v. Murray, 648 F.3d 251 (5th Cir. 2011),
cert. denied, 132 S. Ct. 1065 (2012) ..............cecesssereeesesenees 9
(ITT)
Cases—Continued: Page
United States v. Ortiz, 621 F.3d 82 (2d Cir. 2010),
cert. denied, 131 S. Ct. 1813 (2011) ...... ccc eeececeeeeeteneees 9
United States v. Rodriguez, 630 F.3d 39 (1st Cir. 2010)......11
United States v. Seacott, 15 F.3d 1380 (7th Cir. 1994)........... 6
United States v. Turner, 548 F.3d 1094 (D.C. Cir. 2008)....... i)
United States v. Wetherald, 636 F.3d 1315 (11th Cir.),
cert. denied, 132 S. Ct. 360 (2011) oo... cee ceeeeeeeeeteeeeeeeees )
United States v. Wood, 486 F.3d 781 (3d Cir.),
cert. denied, 552 U.S. 855 (2007) ...........cccecccceceeeeeeeseeereeeenens i)
Constitution, statutes, guidelines and rules:
U.S. Const. Art. I, § 9, Cl. 3 (Ex Post Facto Clause)... passim
Be ie et cictnenncitennessinspsctneininticnsiinmnitpeumeununenenennenmmmaetens 1,2
ee SD crrsicitsnnnsstenensieseenenismncandinnniadinamenianiememiedtid 6
Be s virsecnsscosenninnesemnenenesensnnnnmeneayl 2,4, 7, 10, 11
ae a TTT inc cetinisieiitesiaisecepdandaieihidditianmiemmmmmninedeninteiel 8
le cc ccasecnsevtenscsveinsenmnsinnnesenesnnenmienes 3
le aE nrriseccnencireenssnenimetnmenmmeenencemsenitentennanenieel 6
Sentencing Guidelines § 1B1.11(°D)(1) .........cc ec cceeeeeeeeneeeenenes 3
. 8 8 FR tt 12
Miscellaneous:
S. Rep. No. 225, 98th Cong. 2d Sess. (1983)...........ccccesseeeerees 3
U.S. Sentencing Comm’n:
2010 Source Book of Federal Sentencing Statistics,
http://Awww.ussc.gov/Data_and_Statistics/Annual_
Reports_and_Sourcebooks/2011/Tabled5. pdf ............... 10
Types of Appeal in Each Circuit and District,
SE EN CRIS ceccosnasiecsoevenssennnttinigiesennescininieuintanmmesnseneens 10
Jn the Supreme Court of the Gnited States
No. 12-62
MARVIN PEUGH, PETITIONER
Vv.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. la-13a)
is reported at 675 F.3d 736.
JURISDICTION
The judgment of the court of appeals was entered on
March 28, 2012. On June 13, 2012, Justice Kagan ex-
tended the time within which to file a petition for a writ
of certiorari to and including August 10, 2012, and the
petition was filed on July 16, 2012. The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District
Court for the Northern District of Illinois, petitioner
was convicted on five counts of bank fraud, in violation
of 18 U.S.C. 1344. Pet. App. 15a. The district court sen-
tenced petitioner to 70 months of imprisonment, to be
(1)
2
followed by three years of supervised release. /d. at
17a-18a. The court of appeals affirmed. /d. at la-13a.
1. Petitioner was the co-owner, along with his cousin,
of two farming-related businesses in Illinois. Pet. App.
2a-3a. In 1999 and 2000, after one of the businesses be-
gan to suffer cash-flow problems, the cousins engaged in
multiple fraudulent schemes to obtain access to addi-
tional capital. /bid. They secured a series of bank
loans, worth over $2.5 million, from the State Bank of
Davis by falsifying the existence of valuable contracts
between their two businesses. /d. at 3a. And they also
wrote a series of bad checks between their personal and
business accounts, allowing them to overdraw an ac-
count with Savanna Bank by nearly $500,000. bid.
In 2009, a grand jury in the Northern District of Illi-
nois charged petitioner in a superseding indictment with
nine counts of bank fraud, in violation of 18 U.S.C. 1344.
Presentence Investigation Report (PSR) 3-5. After a
trial, a jury convicted petitioner on five of those counts.
Id. at 5.
2. Petitioner was sentenced in May 2010. Pet. App.
14a. Pursuant to 18 U.S.C. 3553(a), a sentencing court’s
“overarching duty” is to impose a “‘sentence sufficient,
but not greater than necessary’ to comply with the sen-
tencing purposes set forth in [18 U.S.C.] 3553(a)(2).”
Pepper v. United States, 131 S. Ct. 1229, 1242 (2011)
(quoting 18 U.S.C. 3553(a)). In carrying out that re-
sponsibility, the court is to consult a variety of factors,
including the Guidelines promulgated by the Sentencing
Commission. /d. at 1241. Since United States v. Booker,
543 U.S. 220 (2005), the Sentencing Guidelines have
been advisory, not mandatory: “although a sentencing
court must ‘give respectful consideration to the Guide-
lines, Booker permits the court to tailor the sentence in
3
light of other statutory concerns as well.’” Pepper, 131
S. Ct. at 1241 (quoting Kimbrough v. United States, 552
U.S. 85, 101 (2007)).
Federal law generally requires courts to consult the
advisory Guidelines “in effect on the date the defendant
is sentenced.” 18 U.S.C. 3553(a)(4)(A)(ii). Congress
adopted that approach so that sentencing courts would
have the benefit of the Commission’s up-to-date views
on the appropriate sentencing ranges. See S. Rep.
No. 225, 98th Cong., 2d Sess. 77 (1983). In a pre-Booker
provision adopted when the Guidelines were mandatory,
the Commission has specified that “[i]f the court deter-
mines that use of the Guidelines Manual in effect on the
date that the defendant is sentenced would violate the ex
post facto clause of the United States Constitution, the
court shali use the Guidelines Manual in effect on the
date that the offense of conviction was committed.” Sen-
cencing Guidelines § 1B1.11(b)(1) (2009).
Consistent with Section 3553(a)(4)(A)(ii), the district
court in petitioner’s case consulted the 2009 Guidelines
in effect when he was sentenced. Pet. App. 28a. It re-
jected petitioner’s contention that, because the version
of the Guidelines in effect when he committed his of-
fenses recommended a lower advisory sentencing range,
the Ex Post Facto Clause required the court to substi-
tute them for the 2009 Guidelines. Jbid.' The district
’ The presentence report stated, as does the petition, that the 1998
version of the Guidelines was in effect when petitioner committed his
offenses. PSR 8; Pet 4n.2. In actuality, however, the 1999 version of
the Guidelines (which became effective on Nov. 1, 1999) would apply,
because all of the offenses for which petitioner was convicted oc-
curred in 2000. See PSR 3-5. Petitioner’s objection in district court,
the district court’s ruling on that objection, and the court of appeals’
opinion al] reference the 1999 Guidelines. See 08-CR-50014 Docket
entry No. 156, at 1 (N.D. Ill. Apr. 2, 2010); Pet. App. 5a, 8a, 28a. In
4
court observed that, under governing circuit precedent,
“a post-offense change in an advisory guidelines range
does not create an ex post facto violation.” /bid. (citing
United States v. Demaree, 459 F.3d 791 (7th Cir. 2006),
cert. denied, 551 U.S. 1167 (2007)).
The district court calculated that petitioner had an
offense level of 27 under the 2009 Guidelines, applying
an 18-level enhancement for loss in excess of $2.5 million
and a 2-level enhancement for perjury on top of the base
offense level of 7. 5/4/10 Sent. Tr. 28-42. The resulting
advisory sentencing range was 70-87 months of impris-
onment. /d. at 42. The presentence report advised the
court that the Guidelines in effect at the time of the of-
fenses would have produced a range of 30-37 months.
PSR 20. After considering all of the sentencing factors
under 18 U.S.C. 3553(a), and rejecting petitioner’s re-
quests for a departure or variance on various grounds,
the court concluded that “a sentence within the guide-
line range is the most appropriate sentence in this case.”
Pet. App. 40a. The court emphasized, among other
things, the “great and urgent need for the sentence in
this case to be a general deterrence to other people that
might be in a position to or consider doing these kinds of
offenses.” Jd. at 3la; see id. at 38a (“[T]he need for
general deterrence * * * is high in a case such as this
one.”). The court imposed a sentence of 70 months of
imprisonment on each count, to run concurrently. /d. at
40a-41a.
3. The court of appeals affirmed the conviction and
sentence. Pet. App. la-13a. As relevant here, the court
adhered to its prior holding that “the advisory nature of
all respects relevant to this case, the 1999 version of the Guidelines is
the same as the 1998 version.
5)
the guidelines vitiates any ex post facto problem” that
might otherwise arise from consulting the Guidelines in
effect at the time of sentencing rather than the Guide-
lines in effect at the time of the offense. /d. at 8a (citing,
inter alia, Demaree, 459 F.3d at 795).
ARGUMENT
Petitioner contends (Pet. 7-21) that the district court
violated the Ex Post Facto Clause by using the 2009 ver-
sion of the Sentencing Guidelines to calculate his adviso-
ry sentencing range. The court of appeals correctly re-
jected that contention, and no further review is war-
ranted.
1. As the government has explained in response to
other recent petitions for writs of certiorari raising the
question, the Sentencing Guidelines do not present any
ex post facto concerns because they are advisory only.
See, e.g., Br. in Opp. at 9-14, Hensley v. United States,
130 S. Ct. 1284 (2010) (No. 09-480). In Miller v. Florida,
482 U.S. 423 (1987), this Court held that the Ex Post
Facto Clause barred the retroactive application of re-
vised state sentencing guidelines that increased a de-
fendant’s presumptive sentencing range compared to
the guidelines in effect at the time that the defendant
committed the offense. The Court reasoned that the
new guidelines, which “ha[d] the force and effect of law,”
“substantially disadvantaged” the defendant, because
the state system created a “high hurdle that must be
cleared before discretion [could] be exercised” to impose
a non-guidelines sentence. /d. at 432, 435. The Court
distinguished the Florida guidelines system from the
United States Parole Commission’s guidelines, noting
that the federal parole guidelines “simply provide flexi-
ble ‘guideposts’ for use in the exercise of discretion.” Jd.
at 435.
6
Before United States v. Booker, 543 U.S. 220 (2005),
the federal Sentencing Guidelines (unlike the former pa-
role guidelines) were mandatory. Thus, like the Florida
guidelines at issue in Miller, the federal Sentencing
Guidelines “ha[d] the force and effect of laws,” id. at
234, and significantly constrained sentencing courts’ dis-
cretion to impose sentences outside of the Guidelines
range. See 18 U.S.C. 3553(b)(1). Courts of appeals had
therefore uniformly held that, under Miller, the Ex Post
Facto Clause precluded sentencing a defendant under
revised Guidelines that provided for a more severe sen-
tence than was authorized by the Guidelines in effect
when the defendant committed the offense. See, e.g.,
United States v. Seacott, 15 F.3d 1380, 1386 (7th Cir.
1994).
This Court’s recent decisions explaining the role of
the Guidelines in post-Booker sentencing, however, have
made clear that the Guidelines are now only advisory
and do not limit the discretion of sentencing courts in
the manner that the guidelines at issue in Miller did. In
Rita v. United States, 551 U.S. 338, 351-355 (2007), the
Court held that sentencing courts cannot presume that a
sentence within the advisory Guidelines range is reason-
able or that a sentence outside the range is unreasona-
ble. And while a court of appeals may apply a presump-
tion that a within-range sentence is reasonable, that
presumption has no “independent legal effect.” Jd. at
350. In Gall v. United States, 552 U.S. 38, 47 (2007), the
Court held that a court of appeals cannot apply “a rigid
mathematical] formula” that would demand an increas-
ingly strong justification the farther a sentence varies
from the advisory Guidelines range. Gall emphasized
that no “heightened standard of review” applies to sen-
tences outside the Guidelines range; rather, “the abuse-
7
of-discretion standard of review applies to appellate re-
view of all sentencing decisions—whether inside or out-
side the Guidelines range.” Id. at 49.
In subsequent decisions, the Court has made clear
that sentencing courts may vary from the advisory
range “based solely on policy considerations, including
disagreements with the Guidelines,” and that the Guide-
lines are just “one factor among several” that “courts
must consider in determining an appropriate sentence.”
Kimbrough v. United States, 552 U.S. 85, 90, 101 (2007)
(citation omitted); see Pepper v. United States, 131 S. Ct.
1229, 1247 (2011) (“{A] district court may in appropriate
cases impose a non-Guidelines sentence based on a disa-
greement with the Commission’s views.”); Spears v.
United States, 555 U.S. 261, 265 (2009) (per curiam).
The Court has also held that no notice is required when
a court sentences outside the advisory range based on
the sentencing factors in 18 U.S.C. 3553(a), because de-
fendants no longer have “[a]ny expectation subject to
due process protection” that they will receive a sentence
within the Guidelines range. Irizarry v. United States,
553 U.S. 708, 713 (2008). And the Court has under-
scored that the Guidelines are just one of the factors to
be considered under Section 3553(a); the sentencing
court’s “overarching duty,” after considering all of the
factors, is to select a sentence that is “‘sufficient, but not
greater than necessary’ to comply with the sentencing
purposes set forth in {18 U.S.C.] 3553(a)(2).” Pepper,
131 S. Ct. at 1242 (quoting 18 U.S.C. 3553(a)).?
* Those purposes are:
the need for the sentence imposed—
8
2. Consistent with the views elaborated in this
Court’s decisions addressing the Guidelines after Book-
er, the Seventh Circuit held in United States v.
Demaree, 459 F.3d 791 (2006), cert. denied, 551 U.S.
1167 (2007), that the Ex Post Facto Clause does not bar
a district court from considering the version of the advi-
sory Guidelines in effect at the time of sentencing, even
when the version of the Guidelines in effect at the time
of the offense provided for a lower advisory sentencing
range. See id. at 794-795. Among other things, the Sev-
enth Circuit pointed out that the Sentencing Guidelines
are “advisory”; that the court is obligated to “consider”
the applicable range, but may not “‘presume’” that it is
reasonable; that the selection of an appropriate sentence
is “discretionary and subject therefore to only light ap-
pellate review”; and that a sentencing court is always
permitted to consider a new guideline in sentencing:
For when the Sentencing Commission changes a
guideline, it does so for a reason; and since it is a
body expert in criminal punishments, its reason is en-
titled to the serious consideration of the sentencing
judge. A judge who said he was persuaded by the in-
(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or vocation-
al training, medical] care, or other correctional treatment in the
most effective manner.
18 U.S.C. 3553(a)(2).
9
sight that informed the new guideline to give a sen-
tence within the range established by it could not be
thought to be acting unreasonably.
Ibid.
As petitioner notes (Pet. 8-9), the Second, Fourth,
Sixth, Eleventh, and D.C. Circuits have disagreed, con-
cluding that the Guidelines continue to implicate the Ex
Post Facto Clause even though they are now advisory
only. See, e.g., United States v. Wetherald, 636 F.3d
1315, 1320-1324 (11th Cir.), cert. denied, 132 S. Ct. 360
(2011); United States v. Ortiz, 621 F.3d 82, 87 (2d Cir.
2010), cert. denied, 131 S. Ct. 1813 (2011); United States
v. Lanham, 617 F.3d 873, 889-890 (6th Cir. 2010), cert.
denied, 131 S. Ct. 2443 (2011); United States v. Lewis,
606 F3d 1938, 199 (4th Cir. 2010); United States v.
Turner, 548 F.3d 1094, 1098-1100 (D.C. Cir. 2008). Sev-
eral other circuits have stated or held, without analysis,
that the Ex Post Facto Clause continues to apply to
changes in the advisory Guidelines. See, e.g., United
States v. Forrester, 616 F.3d 929, 946-948 (9th Cir. 2010);
United States v. Wood, 486 F.3d 781, 789-791 (3d Cir.),
cert. denied, 552 U.S. 855 (2007). And a few courts of
appeals have not resolved the issue. See, e.g., United
States v. Murray, 648 F:3d 251, 253-254 (5th Cir. 2011),
cert. denied, 132 S. Ct. 1065 (2012); United States v.
Deegan, 605 F.3d 625, 632 (8th Cir. 2010), cert. denied,
131 S. Ct. 2094 (2011).
3. Despite the disagreement, the applicability of the
Ex Post Facto Clause to changes in the advisory Guide-
lines does not warrant this Court’s review. First, the
issue arises only in a limited number of cases. The ques-
tion presented is relevant only when a defendant’s advi-
sory Guidelines range has been revised upwards be-
tween the time of his offense and the time of his sentenc-
10
ing. While the Commission does review the work of the
courts and make alterations to the Guidelines as it
deems appropriate, Booker, 543 U.S. at 263, as well as
respond to congressional directives, e.g., Dorsey v. Unit-
ed States, 1382S. Ct. 2321, 2329 (2012), it does not appear
that the number or percentage of defendants whose
range is increased between the time of the offense and
sentencing is great, petitioner’s speculation (Pet. 19)
notwithstanding.*
Second, even in cases where the advisory Guidelines
range has increased, that range does not control the ul-
timate sentence. While the Guidelines range is “the
starting point and the initial benchmark, * * * [t]he
Guidelines are not the only consideration.” Gall, 552
U.S. at 49. Rather, the range is one of several factors
that 18 U.S.C. 3553(a) requires a sentencing court to
consider in determining the appropriate sentence. The
court may not treat the range either as binding or as
presumptively reasonable. See, e.g., Gall, 552 U.S. at
46-50; Rita, 551 U.S. at 351-355. The sentencing court
* While the federal courts of appeals decided over 18,000 crimi-
nal appeals in fiscal years (FY) 2010 and 2011 combined, a Westlaw
search reveals that only 114 circuit decisions (published or unpub-
lished) during that period—well under one percent—even mention
“ex post facto” and “guideline[s]” in the same paragraph. See
U.S. Sentencing Comm'n, 2010 Sourcebook of Federal Sentencing
Statistics 135-137 tbl. 55; U.S. Sentencing Comm’n, Types of Ap-
peal in Each Circuit and District, Fiscal Year 2911, http://www.
usse.gov/Data_and_Statistics/Annual_Reports_and_Sourcebooks/
2011/ TableS55.pdf. Similarly, while the Seventh Circuit has decided
nearly 550 criminal appeals in each of those fiscal years, see ibid,
only ten Seventh Circuit decisions (published or unpublished) over
the past 12 months have cited Demaree. And while the Fifth Circuit
has decided the most criminal appeals of any circuit during those fis-
cal years—over 3000 in all, see ibid. —it has done so without ever de-
finitively resolving the question presented, see p. 9, supra.
11
must give “both parties an opportunity to argue for
whatever sentence they deem appropriate” and “must
make an individualized assessment based on the facts
presented.” Gall, 552 U.S. at 49-50. And the sentencing
court may decide as a matter of policy that the recom-
mended range fails to suggest a sentence that is suffi-
cient, but not greater than necessary, to achieve the
statutory purposes of sentencing. See, e.g., Pepper, 131
S. Ct. at 1247; Rita, 551 U.S. at 351 (parties may present
argument that “the Guidelines sentence itself fails
properly to reflect § 3553(a) considerations, or perhaps
* * * the case warrants a different sentence regard-
less”). As aresult, sentencing courts may, and often do,
conclude that a particular defendant should receive a
sentence different from what the advisory Guidelines
recommend. See, e.g., Pet. 15 (noting that courts impose
sentences below the advisory range 25% of the time); III.
Ass’n of Crimina] Defense Lawyers Amicus Br. 8 (re-
porting that approximately 44% of sentences in I]linois
were below the Guidelines range, including 29.1% that
did not involve a government motion).
In a case where the Guidelines have been amended
between the time of the offense and the time of sentenc-
ing, a court may—and likely should—take counsel from
both the former and the current Guidelines (as well as
the reasons for the amendment) in the course of consid-
ering what sentence would be most consistent with the
Section 3553(a) factors. See United States v. Rodriguez,
630 F.3d 39, 42 (1st Cir. 2010); Deegan, 605 F.3d at 631-
632; see also United States v. Gilmore, 599 F.3d 160, 165-
166 (2d Cir. 2010). In those circumstances, a judge’s
consideration of a new and increased Guidelines range
does not defeat any expectation that the defendant may
have had when he committed the offense of receiving a
12
lower, within-range sentence. See J/rizzary, 553 U.S. at
713 (post-Booker, a defendant has no due-process-
protected expectation that he will receive a sentence
with the presumptively applicable guideline range). And
a Seventh Circuit defendant whose Guidelines range has
increased can urge the sentencing court to look to the
earlier and lower range as reflecting a sounder balance
of sentencing policies, with no presumption that the cur-
rent Guidelines range is reasonable. Given the district
court’s discretion to consider both ranges, the Seventh
Circuit’s minority position on the ex post facto issue is
not a sufficiently pressing question of federal law as to
warrant this Court’s intervention.‘
To the extent petitioner suggests (Pet. 15-16) that the
district court in this particular case was overly deferen-
tial to the Sentencing Guidelines, he was free to raise
that circumstance-specific objection on appeal. See Nel-
son v. United States, 555 U.S. 350, 352 (2009) (per
curiam) (summarily reversing when district court ap-
plied a presumption of reasonableness to the Guidelines
range). Review is not warranted, however, on the ques-
tion of which non-binding set of advisory guidelines the
district court was required to consult.
* Petitioner briefly suggests (Pet. 13) that the question presented
will influence plea decisions. But the question presented will have no
special impact on the sentencing of defendants who plead guilty. A
sentencing court typically has the same sentencing discretion follow-
ing a plea as it does following a trial. And a defendant who wants
greater certainty may, with the court’s agreement, enter a plea that
requires the court to impose a specific sentence. Fed. R. Crim.
P. 11(c)(1)(C).
13
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
DONALD B. VERRILLI, JR.
Solicitor General
LANNY A. BREUER
Assistant Attorney General
WILLIAM C. BROWN
Attorney
OCTOBER 2012
ROCORD
AND
Hoe
+e
-—_
ros
No. 12-62
| Supr-ame Coun OS. Y
FILED °
OCT 23 2012
LOE CE C= TYE CLERK
ill Seentts caleintieinicen ianediiid a aeiiiininhest: 12 mpen. 2 _ amen ameieiaee eaten canteen ca
IN THE
Supreme Court of the Hnited States
MARVIN PEUGH,
Vv.
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
REPLY BRIEF FOR THE PETITIONER
STEPHEN B. KINNAIRD
COUNSEL OF RECORD
CANDICE CASTANEDA
Paul Hastings LLP
875 15th Street, N.W.
Washington, DC 20005
stephenkinnaird@paulhastings.com
(202) 551-1700
ERIKA L. LEONARD
Amy E. JENSEN
Paul Hastings LLP
1170 Peachtree, N.E., Suite 100
Atlanta, GA 30309
(404) 815-2400
STEPHANOS BIBAS
University of Pennsylvania
Law
School Supreme Court
Clinic
3501 Sansom Street
Philadelphia, PA 19104
(215) 746-2297
ALLAN A. ACKERMAN
39 South LaSalle Street
Suite 1218
Chicago, IL 60603
(312) 332-2891
Counsel for Petitioners
WILSON-EPES PRINTING CO., INC. — (202) 789-0086 — WasnincTon, D.C. 20002
Library of Congress
Law Librery
FY
TABLE OF CONTENTS
Page
Ee Fr CE Bi ictcnccnincincnsantascntesssntinsnes BY
| _TTC ee ae en OEE E RODEN 1
TABLE OF AUTHORITIES
Page(s)
CASES
California Department of Corrections v.
Morales,
514 U.S. 499 (1995) .....................ccccccccccccssccssscccsceess 4
Gall v. United States,
Se I, Hc sicccrnicinescridipssinsiivineiusaniendueicmamassaanment 3
Garner v. Jones,
I el passim
Glover v. United States,
tT NRE ae 10
Irizarry v. United States,
I 4,5
Miller v. Florida,
ke eae a 4,5
Rita v. United States,
| na aan 3
United States v. Demaree,
459 F.3d 791 (7th Cir. 2006)..............00000.000... passim
United States v. Lanham,
617 F.3d 873 (6th Cir. 2010), cert.denied,
aS 10
Weaver v. Graham,
LEE aoe ae Ne CR ae SE RONDO 5
-lli-
TABLE OF AUTHORITIES
(continued)
CONSTITUTION AND STATUTES
Fe RRS OE een passim
Prosecutorial Remedies and Other Tools to
End the Exploitation of Children Today Act
(PROTECT Act), Pub.L. No. 108-21, 117
Bs TT i nsniscielitenhienieheiiiontiiiaaasiiihiauaepaneinieeeii 9
Sarbanes-Oxley Act of 2002, Pub. L. No. 107-
SIT iidenicaninpicienininniantieiiipuniniensiuminaiainenitionneniet 7,8
OTHER AUTHORITIES
U.S. Sentencing Guidelines Manual § 2B1.1
EPIEEED scnnesssnnenneinnienensenntnenieinisiannisinbiteiptemmmesenee 8
U.S. Sentencing Guidelines Manual app. C
ee ccevsnaradenspnsaniinsonenenninnniniiniitneninatnowmnceen 7, 8,9
U.S. Sentencing Commission, Interactive
I cial 8
U.S. Sentencing Commission, Use of
Guidelines and Specific Offense
I” SI ss rsiciateneiptnnnnrenqaneinneien 9
Brief for the United States, Gabayzadeh v.
United States, No. 11-1034
Sa ras UY TE sis seecieinbiciecienietciiieeitinnaiitianlibn 2
-iv-
TABLE OF AUTHORITIES
(continued)
Page(s)
Brief for the United States, Sandoval v.
United States, No. 11-9492
Os a cranial
REPLY BRIEF
The Government’s mild opposition underscores
the need for this Court’s review. The Government
does not contest the circuit conflict; it acknowledges
that at least seven circuits apply the Ex Post Facto
Clause to forbid retroactive application of Sentencing
Guidelines enhancements, with a number of those
courts expressly rejecting the position of the Seventh
Circuit below. Opp. 9; Pet. 8-11. The Government
does not deny that the circuit conflict is intractable;
indeed, the Seventh Circuit has _ repeatedly
reaffirmed its precedent and has declined to rehear
the issue en banc, entrenching the circuit split. Pet.
11; Opp. 8-9. Finally, the Government does not deny
that this case is an ideal vehicle for resolving the
conflict. Pet. 20-21.
Instead, the Government devotes much of its brief
to arguing the merits. Opp. 5-7; see also id. at 10-12.
But it nowhere addresses or justifies the Seventh
Circuit's express refusal to apply this Court’s
“significant risk” test under the Ex Post Facto
Clause. Compare Garner v. Jones, 529 U.S. 244, 255
(2000), with United States v. Demaree, 459 F.3d 791,
794-95 (7th Cir. 2006). If, on the other hand, the
Government were right that most circuits are
applying an erroneous standard, the prevalence of
that error would itself warrant this Court’s review.
The Government's only other objection is to the
issue’s importance. Despite having twice conceded
= 3
that this “circuit conflict may warrant this Court’s
review in an appropriate case,”! the Government now
backtracks, claiming that the issue is insignificant
and arises infrequently. Opp. 9-10 & n.3. This is far
from the case. The issue has already arisen at least
hundreds of times and promises to keep recurring,
particularly because the Sentencing Commission
regularly revises Guideline sentences upward. As a
result, in the Seventh Circuit, federal criminal
defendants face higher sentences than those in the
rest of the country, tempting prosecutors to forum-
shop. Only this Court can resolve this entrenched,
recurring disagreement about the application of the
U.S. Constitution and bring uniformity to criminal
sentencing across the country.
1. The Ex Post Facto Clause is violated
wherever there is a “significant risk” that retroactive
application of new sentence enhancements will raise
a defendant’s punishment. See Garner, 529 U.S. at
255. The Seventh Circuit has admitted that this
formula, “interpreted literally, would encompass a
change in even voluntary sentencing guidelines, for
official guidelines even if purely advisory are bound
to influence judges’ sentencing decisions.” Demaree,
1 Brief for the United States at 10-11, Sandoval v.
United States, No. 11-9492 (S. Ct. May 2012); Brief
for the United States at 16-17, Gabayzadeh v. United
States, No. 11-1034 (S. Ct. May 2012).
~
459 F.3d at 794. Nevertheless, Demaree held that
this Court could not have meant what it said in
Garner. Id. The Seventh Circuit proclaimed “that
the ex post facto clause should apply only to laws and
regulations that bind rather than advise,” and that
the Guidelines post-Booker fall into the latter
category. Id. at 795. The Government never defends
the Seventh Circuit’s rejection of this Court’s
precedents, or explains why the “significant risk”
standard governs discretionary parole decisions but
not discretionary sentencing.
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