United States v. Robertson

• Decision Date: 16 November 2011
• Docket Number: 11–1618.,Nos. 11–1651,s. 11–1651
• Citation: 662 F.3d 871
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Henry ROBERTSON and Elizabeth Robertson, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

662 F.3d 871

UNITED STATES of America, Plaintiff–Appellee,

v.Henry ROBERTSON and Elizabeth Robertson, Defendants–Appellants.

Nos. 11–1651

11–1618.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 27, 2011.Decided Nov. 16, 2011.

Michael Ferrara (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Erin E. Murphy (argued), Attorney, Bancroft PLLC, Washington, DC, for Defendants–Appellants.

Before FLAUM, KANNE, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

In the late 1990s, Henry and Elizabeth Robertson were involved in a Chicagoland mortgage fraud scheme. Through their company, Elohim, Inc., the Robertsons bought residential properties and then sold those properties to nominee buyers at inflated prices. Along the way they provided lenders with false information about the buyers' finances, sources of down payments, and intentions to occupy the residences. The scheme involved 37 separate fraudulent transactions and resulted in a net loss of more than $700,000 to various lenders.

After the scheme collapsed, the Robertsons went bankrupt but were not charged with any crimes. They went about the laudable business of rebuilding their lives and rehabilitating themselves. Elizabeth continued to work as a full-time nurse in a hospital's pediatric intensive care unit. Henry worked as a full-time cable installer and technician. They raised their three children and became fully engaged in their community. Each volunteered as a coach in youth sports, and Henry assisted in fighting crime in their neighborhood by serving as president of their block club. Neither Henry nor Elizabeth engaged in any criminal activity from 1999 to 2010, apart from a reckless driving offense by Henry in 2002.

But the Robertsons could not escape their past. On the day before the ten-year statute of limitations for one crime would have expired, the government charged the Robertsons with one count of wire fraud, 18 U.S.C. § 1343, and two counts of bank fraud, 18 U.S.C. § 1344. The Robertsons both pled guilty to a single count of wire fraud, and both were sentenced on March 2, 2011. The sentencing court based their sentences on the 2010 United States Sentencing Guidelines that were then in effect. Elizabeth was sentenced to 41 months in prison, and Henry was sentenced to 63 months. They were also ordered to pay more than $700,000 in restitution.

The Robertsons appeal from their sentences on several grounds. First, they argue that the district court's use of the more severe 2010 Sentencing Guidelines violated the ex post facto clause of the Constitution, and they urge us to overrule United States v. Demaree, 459 F.3d 791 (7th Cir.2006), which held that the ex post facto clause does not apply to changes in the now-advisory federal Sentencing Guidelines. They also argue that their roles in the mortgage fraud scheme did not warrant a 2–level guideline enhancement imposed by the sentencing court pursuant to U.S.S.G. § 3B1.1(c) for their roles in organizing the scheme. We reject these arguments. But we agree with the Robertsons' final argument, that the sentencing judge failed to consider adequately their unusually strong evidence of self-motivated rehabilitation. For this reason, we vacate their sentences and remand for resentencing. Because we remand, we do not address the Robertsons' additional argument that their sentences were substantively unreasonable.

I. Sentencing Guidelines and the Ex Post Facto Clause

The Robertsons argue that the district court's reliance on the 2010 Sentencing Guidelines in determining their guideline sentencing ranges violated the federal ex post facto clause of the Constitution. The 2010 Guidelines advised a higher offense level than the 1998 Guidelines, which were in effect when they committed their crimes. The 1998 Guidelines would have produced a recommended offense level of 19, compared to a recommended offense level of 22 under the 2010 Guidelines.¹ Elizabeth's recommended range under the 2010 Guidelines was 41 to 51 months in prison, but under the 1998 Guidelines, her range would have been 30 to 37 months. Henry's recommended range under the 2010 Guidelines was 63 to 78 months. His 1998 range would have been 46 to 57 months. We review their argument on this point for plain error. ²

Article I of the United States Constitution provides that neither Congress nor any State shall pass any “ex post facto Law.” See Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. An unconstitutional ex post facto law places the defendant at a substantial disadvantage compared to the law as it stood when he committed the crime, by either changing the definition of the crime, increasing the maximum penalty for it, or imposing a significant risk of enhanced punishment. See, e.g., Garner v. Jones, 529 U.S. 244, 255–56, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000); California Dep.'t of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); Miller v. Florida, 482 U.S. 423, 432, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); Lindsey v. Washington, 301 U.S. 397, 401–02, 57 S.Ct. 797, 81 L.Ed. 1182 (1937). Here, the Robertsons' advisory sentencing ranges increased from 30–37 months to 41–51 months and 46–57 months to 63–73 months, respectively. The issue is whether that change in the advisory guideline ranges imposed a significant risk of enhanced punishment forbidden by the ex post facto clause.

When the federal Sentencing Guidelines were mandatory, a later increase in a Guideline range certainly posed a “substantial risk” that a defendant's penalty would be more severe. More than a “substantial risk,” a harsher punishment was highly probable, as the Guidelines acknowledge in § 1B1.11 (directing use of Guidelines in effect at time of crime if court determines that use of current Guidelines would violate ex post facto clause). Addressing this problem under a state's system of sentencing guidelines, the Supreme Court held in Miller v. Florida that the ex post facto clause was violated when the sentencing judge had to provide clear and convincing written reasons for departing from the higher mandatory Guideline range. Under that legal standard, a defendant would be foreclosed from “challeng[ing] the imposition of a sentence longer than his presumptive sentence under the old law.” 482 U.S. at 432–33, 107 S.Ct. 2446.

With the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), however, the federal Guidelines became advisory. It is no longer certain that an increased Guideline range poses a “substantial risk” that a defendant's sentence will be harsher than it would have been. Now, sentencing judges have broad discretion to impose a non-guideline sentence by weighing the factors under § 3553(a).

We explained this reasoning in United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006), holding after Booker that the ex post facto clause is not implicated by changes in advisory Guidelines because the ex post facto clause applies only to laws and regulations that are binding. We acknowledged that sentencing judges will no doubt be influenced by the Guidelines, but explained:

The judge is not required—or indeed permitted—to “presume” that a sentence within the guidelines range is the correct sentence and if he wants to depart give a reason why it's not correct. All he has to do is consider the guidelines and make sure that the sentence he gives is within the statutory range and consistent with the sentencing factors listed in 18 U.S.C. § 3553(a). His choice of a sentence, whether inside or outside the guideline range, is discretionary and subject therefore to only light appellate review. The applicable guideline nudges him toward the sentencing range, but his freedom to impose a reasonable sentence outside the range is unfettered.

Id. at 794–95 (internal citations omitted); see also Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (in calculating the sentence, the judge “may not presume that the Guidelines range is reasonable”); Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply”).

After Booker, advisory Guidelines do not limit a sentencing judge's discretion, and in a discretionary sentencing regime, it would be incongruous to hold that later, more severe Guidelines hold a “substantial risk” of a harsher sentence. Put another way, a sentencing court may take advice from the Sentencing Commission, regardless of when that advice was issued. A sentencing court may consider past and present advisory Guidelines, and even proposed advisory Guidelines that have not yet taken effect. We have reaffirmed our decision in Demaree many times since, see, e.g., United States v. Holcomb, 657 F.3d 445, 448–49 (7th Cir.2011); United States v. Favara, 615 F.3d 824, 829 (7th Cir.2010); United States v. Panice, 598 F.3d 426, 435 (7th Cir.2010); and United States v. Nurek, 578 F.3d 618, 625–26 (7th Cir.2009), and we will not overrule it here.

We acknowledge that even though the Sentencing Guidelines are now advisory, several other circuits have found that the Guidelines still play a powerful “anchoring” role in determining a defendant's ultimate sentence and thus have held that use of later, more severe Guidelines still creates an ex post facto problem. See, e.g., United States v. Wetherald, 636 F.3d 1315, 1322 (11th Cir.2011); United States v. Ortiz, 621 F.3d 82, 87 (2d Cir.2010); 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); United States v. Turner, 548 F.3d 1094, 1099–1100 (D.C.Cir.2008). For the above reasons, we respectfully disagree and follow the analysis set forth in Demaree. On this ground, we affirm.

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