David Conrad v. USA

Filing

ORDER: The opinion of this court issued on March 4, 2016, is amended by replacing one paragraph with a new paragraph. The original paragraph on pages 4 and 5 was: It s true that a change in the guidelines range does not alter the range of permissible sentences, because the judge doesn t have to sentence within the applicable guidelines range; yet the average length of sentences for the crime in question is, as noted in Peugh, likely to rise as a result of an increase in that range. To call an increase in sentence length, however effectuated, procedural seems a misuse of the word. But although the increase in the guidelines range of which the defendant complains both seems substantive and postdated his crime, we don t think he s entitled to be resentenced. The replacement paragraph is: It s true that a change in the guidelines range does not alter the range of permissible sentences, because the judge doesn t have to sentence within the applicable guidelines range; yet the average length of sentences for the crime in question is, as noted in Peugh, likely to rise as a result of an increase in that range. To call an increase in sentence length, however effectuated, procedural might seem a misuse of the word. But the Supreme Court has reserved the label substantive (meaning therefore retroactive) for rules that change the sentence that a judge can lawfully impose. See Schriro v. Summerlin, supra, 542 U.S. at 352. A change in the guidelines affects the sentence that a judge is likely to impose but does not alter the range of sentences that he can lawfully impose. So although the increase in the guidelines range of which the defendant complains in this case not only postdated his crime but also could have had a significant effect on his sentence, he is not entitled to be resentenced. [6752835-1] [6752835] [14-3216]

Case: 14-3216

Document: 52

Filed: 05/24/2016

Pages: 2

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
May 24, 2016
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge

No. 14-3216
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern Division.

DAVID CONRAD,
Petitioner-Appellant,
v.

No. 14 C 4343
Amy J. St. Eve, Judge.

UNITED STATES OF AMERICA,
Respondent-Appellee.

ORDER
The opinion of this court issued on March 4, 2016, is amended by replacing one paragraph
with a new paragraph.
The original paragraph on pages 4 and 5 was:
“It’s true that a change in the guidelines range does not alter the range of permissible
sentences, because the judge doesn’t have to sentence within the applicable guidelines range;
yet the average length of sentences for the crime in question is, as noted in Peugh, likely to rise
as a result of an increase in that range. To call an increase in sentence length, however
effectuated, “procedural” seems a misuse of the word. But although the increase in the
guidelines range of which the defendant complains both seems substantive and postdated his
crime, we don’t think he’s entitled to be resentenced.”

Case: 14-3216

Document: 52

Appeal No. 14-3216

Filed: 05/24/2016

Pages: 2
Page 2

The replacement paragraph is:
“It’s true that a change in the guidelines range does not alter the range of permissible
sentences, because the judge doesn’t have to sentence within the applicable guidelines range;
yet the average length of sentences for the crime in question is, as noted in Peugh, likely to rise
as a result of an increase in that range. To call an increase in sentence length, however
effectuated, “procedural” might seem a misuse of the word. But the Supreme Court has
reserved the label “substantive” (meaning therefore retroactive) for rules that change the
sentence that a judge can lawfully impose. See Schriro v. Summerlin, supra, 542 U.S. at 352. A
change in the guidelines affects the sentence that a judge is likely to impose but does not alter
the range of sentences that he can lawfully impose. So although the increase in the guidelines
range of which the defendant complains in this case not only postdated his crime but also could
have had a significant effect on his sentence, he is not entitled to be resentenced.”