ROVNER, Circuit Judge.
This case returns to us on remand from the Supreme Court of the United States. The defendants were convicted of engaging in a sophisticated tax-fraud conspiracy that caused a loss of income-tax revenue to the government exceeding $60 million. We affirmed the defendant's convictions and sentences in United States v. Vallone, 698 F.3d 416 (7th Cir.2012); and we assume the reader's familiarity with that decision. Five of the six defendants thereafter jointly petitioned the Supreme Court for a writ of certiorari, contending (among other points) that their sentences violate the ex post facto clause, U.S. CONST. art. I, § 9, cl. 3, because the district court sentenced each of them using the version of the Sentencing Guidelines in effect at the time of his sentencing rather than the more favorable version in effect at the time of his offenses. The Court granted
The tax-related crimes charged in this case ended late in 2003. In sentencing the various defendants, however, the district court applied the 2007 and 2008 versions of the Guidelines in effect at the time of their sentencings. See 18 U.S.C. § 3553(a)(4)(A)(ii); U.S.S.G. § 1B1.11(a) & (b)(1) (court shall use Guidelines Manual in effect at time of sentencing unless doing so would violate ex post facto clause). Hopper argued both below and on appeal that this constituted an ex post facto violation, because the tax loss table used to establish his base offense level, see U.S.S.G. § 2T4.1, had been changed to his detriment after his active participation in the criminal activity ended.
Peugh rejected our reasoning in Demaree. The Supreme Court emphasized that the Guidelines continue to play a significant role at sentencing notwithstanding the fact they no longer bind the judge's choice of sentence after Booker. The district judge must still begin by properly calculating the Guidelines range, 133 S.Ct. at 2080, and although he has the authority and discretion to impose a sentence outside that range, the advisory range, which represents the Sentencing Commission's view as to what constitutes an appropriate sentence, remains a benchmark throughout the processes of sentencing and appellate review, id. at 2083. Indeed, if the judge is contemplating a sentence outside of the Guidelines range, he must consider the extent of the deviation from that range and satisfy himself that there is a compelling justification for it. Id. These requirements mean that "[i]n the usual sentencing,... the judge will use the Guidelines range as the starting point in the analysis and impose a sentence within the range." Id. (quoting Freeman v. United States, ___ U.S. ___, 131 S.Ct. 2685, 2692, 180 L.Ed.2d 519 (2011) (plurality opinion)). Even when a judge decides to impose a non-Guidelines sentence, the Guidelines represent the basis for the sentence in the sense that the advisory range constitutes
Obviously our reliance on Demaree as the basis for rejecting the ex post facto argument can no longer stand; we therefore retract the relevant portions of our prior opinion, 698 F.3d at 489, 494-95, and consider anew whether in fact the defendants' ex post facto rights were violated by the district court's use of the 2007 and 2008 Guidelines in determining their sentences. We shall assume arguendo that each of the four defendants before us is entitled to advance the ex post facto argument, although among these four only Hopper preserved such an argument by making it to us earlier. The certiorari petition filed by these defendants candidly acknowledged that fact and suggested that any question of waiver could be addressed by this court on remand. See Petition for Writ of Certiorari, Dunn, et al. v. United States, 2013 WL 703419, at *9 & n. 5 (Feb. 25, 2013) (No. 12-1056). We do not understand the Court's remand order to foreclose consideration of whether the defendants other than Hopper waived the ex post facto issue; but in view of our conclusion that their ex post facto rights were not violated, we need not take up that issue.
The one and only change in the Guidelines that the defendants contend affected them adversely is the revision to the tax table which establishes the base offense level for the sorts of tax evasion and tax fraud offenses of which the defendants were found guilty. See U.S.S.G. § 2T4.1. The change took effect with the 2001 version of the Guidelines. Previously, the tax table would have specified a base offense level of 25 for losses approximating $60 million, which is the loss for which most of the defendants in this case were held to account. See § 2T4.1(T) (Nov.2000); after the revision, the table specified a base offense level of 30. See § 2T4.1(M) (Nov. 2001). There is no doubt that this change was adverse to the defendants. The question, then, is whether this change can be said to have taken effect after the defendants' offenses were completed; only then could it be characterized as a retrospective change implicating their ex post facto rights. Cf. United States v. Cruz, 522 Fed.Appx. 352, 353 n. 1 (7th Cir.2013) (nonprecedential decision) (although court applied November 2012 Guidelines rather than November 2009 or 2010 Guidelines in effect at time of defendant's offense, "[n]o Ex Post Facto Clause issues are present in this case, ... because the relevant portions of the November 2012 Sentencing Guidelines do not provide a higher applicable sentencing range than the November 2009 and November 2010 Sentencing Guidelines").
The defendants were convicted of multiple crimes, but for present purposes the pertinent one is the offense of conspiracy, given its nature as a continuing offense. Each of the defendants was convicted on Count One of the superseding indictment, which pursuant to 18 U.S.C. § 371 charged them with conspiring to defraud the United States by interfering with the collection of income taxes by the Internal Revenue Service ("IRS") and by committing offenses
In United States v. Vaughn, 433 F.3d 917 (7th Cir.2006), on which the government relies, the defendant likewise had been convicted of conspiracy under section 371. As here, the conspiracy began prior to the effective date of the November 2001 version of the Guidelines but did not conclude until after that date. In view of the continuing nature of the conspiracy offense, which brought the offense within the scope of the later version of the Guidelines, we concluded that it was appropriate to sentence the defendant under that version notwithstanding that it punished him more severely than prior versions. Id. at 921-22. Our reasoning, because it bears directly on the arguments made here, is worth quoting at some length:
433 F.3d at 921-22 (footnotes omitted).
Vaughn's holding was not framed as one addressing ex post facto concerns
Since Peugh was decided, we have returned to our former ex post facto sentencing jurisprudence. See, e.g., United States v. Woodard, 744 F.3d 488, 497 (7th Cir. 2014). As before Demaree, we will sustain the application of a new, more punitive version of the Guidelines to the defendant's offense conduct so long as that conduct straddled the effective date of the new version. See United States v. Hallahan, 744 F.3d 497, 513-14 (7th Cir.2014). Given that the defendants in this case were convicted of the continuing offense of conspiracy, then, the relevant inquiry for purposes of their ex post facto claim is whether that conspiracy continued past the effective date of the amended (and more punitive) version of the tax table.
None of the defendants disputes that the conspiracy continued beyond November 1, 2001; but three of them (Hopper, Dunn, and Bartoli) argue that because they were no longer involved in the conspiracy as of that date, the ex post facto clause precludes application of the revised tax table to them. But as Vaughn and many other decisions make clear, simply because the defendants may no longer have been active participants in the conspiracy does not mean that they had withdrawn from the conspiracy and could not be held culpable for what occurred after that point. 433 F.3d at 922. "As we have pointed out before, `[i]t is not ... all that easy to withdraw from a conspiracy,' and it
This leaves defendants with a secondary argument that because the vast majority (between 98 and 99 percent) of the $60-plus million tax loss in this case was incurred before the revised tax table took effect, the ex post facto clause should foreclose application of the revised table regardless of the later end date of the conspiracy. The argument has the greatest force in Hopper's case, as the government conceded at his sentencing that he should be held to account for a lesser loss amount of $56 million, 100 percent of which was incurred prior to 2001. R. 1085 at 17-18.
Whatever its superficial appeal, the argument fails. As we have been emphasizing, the conspiracy continued well past the November 1, 2001 effective date of the new table. That the conspiracy may have resulted in relatively few documented losses beyond that date does not nullify the fact that the crime was ongoing. Proof of actual pecuniary loss has never been necessary to the charge of conspiracy, including a section 371 conspiracy. See Dennis v. United States, 384 U.S. 855, 860, 86 S.Ct. 1840, 1844, 16 L.Ed.2d 973 (1966) ("the alleged concert of action — the common decision and common activity for a common purpose[—] ... lay at the core of the alleged [section 371] offense"); Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924) ("It is not necessary that the government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane, or the overreaching of those charged with carrying out the governmental intention."); Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 253-54, 54 L.Ed. 569 (1910); United States v. D'Andrea, 585 F.2d 1351, 1354 (7th Cir.1978), overruled on other grounds by United States v. Read, 658 F.2d 1225, 1236 & n. 7 (7th Cir.1981); see also, e.g., United States v. Tuohey, 867 F.2d 534, 537 (9th Cir.1989); United States v. Puerto, 730 F.2d 627, 630-31 (11th Cir.1984); United States v. Pintar, 630 F.2d 1270, 1277-78 (8th Cir.1980); United States v. Burgin, 621 F.2d 1352, 1357-58 (5th Cir. 1980). The essence of conspiracy, after all, is the agreement to commit an unlawful act; it is therefore not necessary to show that the conspiracy succeeded in its illicit
Indeed, we have sustained the application of a revised guideline on this basis even when the particular conduct triggering the guideline was complete before the guideline took effect. Our decision in Vivit is a prime example.
In that case, we upheld the application of a guideline specifying a two-level increase in the defendant's offense level for the use of a minor to commit the offense, see U.S.S.G. § 3B1.4, notwithstanding the fact that the minors in question all had been employed in the scheme prior to the effective date of that particular provision. 214 F.3d at 916-19. The defendant in Vivit was a physician who had been convicted of 16 counts of mail fraud based on his submission of reimbursement claims to insurance companies that significantly over-represented the nature and degree of care he had provided to the patients in question; some of the patients involved in the scheme to defraud were minors. The fraudulent scheme began in 1993 and ended in 1996. It was while the scheme was ongoing that the Guidelines were amended in November 1995 to provide for the offense-level increase to reflect the use of minors. Vivit contended that the application of that new provision to him violated the ex post facto clause, given that all of the fraudulent mailings involving minors were complete before that provision of the Guidelines took effect.
We began our analysis by noting the significance of the "one-book rule," which requires that the Guidelines be applied as "a cohesive whole" and not "in a piecemeal fashion." Id. at 917 (citing U.S.S.G. § 1B1.11(b)(1) and United States v. Boula, 997 F.2d 263, 266 (7th Cir.1993)). In other words, where a defendant's criminal conduct spans multiple versions of the Guidelines, a court will not pick and choose among the various provisions of those versions depending on the date of the particular conduct in question; it will apply one version to the entirety of the defendant's conduct. See id.; § 1B1.11(b)(2) ("The Guidelines Manual in effect on a particular date shall be applied in its entirety. The court shall not apply for example, one guideline section from one edition of the Guidelines Manual and another guideline section from a different edition of the Guidelines Manual...."). Which version the court shall use will depend on the ex post facto clause: the version in effect at the time of the defendant's sentencing will be used unless that version treats him more harshly than the version in effect at the time of his crime, in which case the latter version will be used. See § 1B1.11(a) & (b)(1). Either way, one edition of the Guidelines will govern all aspects of his sentence. § 1B1.11(b)(2); Vivit, 214 F.3d at 917. So the merit of Vivit's ex post facto claim depended not on when the specific acts involving minors took place, but rather on when his mail fraud "offense" could be said to have occurred, for purposes of selecting the relevant version of the Guidelines. See § 1B1.11(a) & (b)(1).
Although mail fraud, in contrast to conspiracy, is not a continuing offense, we concluded that because Vivit's multiple
Our decision in Boyd is a second example. Boyd was a conspiracy case arising out of the criminal activities of Chicago's El Rukn street gang. Because the charged conspiracy had ended after the Guidelines first took effect in November 1987, we held that the defendants' ex post facto rights were not violated when the district court sentenced them using the Guidelines. 208 F.3d at 648. One defendant, Green, additionally argued that it was an ex post facto error to enhance his offense level pursuant to section 3B1.1(a) for having been a leader of the conspiracy, in view of his demotion from El Rukn "general" to "private" before the Guidelines took effect. We rejected that argument too; all that mattered, in our view, was that the conspiracy (from which Green had not withdrawn) continued past the date on which the Guidelines took effect:
Id. (citations omitted)
These cases make clear that it is immaterial how much, if any, of the pecuniary loss in this case occurred relative to the effective date of the revised tax table. What is material is the end date of the conspiracy. As the conspiracy continued past the effective date of the November 2001 Guidelines which contained the new tax table, and none of the defendants had withdrawn from the conspiracy prior to that date, it was appropriate to apply the 2001 Guidelines, including the revised tax table, to the loss.
This is not to say that the defendants would have no basis to argue that the application of the 2001 tax table had a distorting effect on their advisory sentencing ranges, given that so much of the loss (or in Hopper's case, all of it) had occurred before the more punitive version of the
We therefore discern no reason for either a full remand to the district court for de novo resentencing or a limited remand to give the district court the opportunity to consider whether it would be inclined to sentence the defendants differently in light of Peugh, cf. United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir.2005). For all of the reasons we have discussed, the district court's use of the revised tax table was not contrary to the ex post facto clause of the Constitution and was fully consistent with our jurisprudence prior to Demaree, which Peugh abrogated. We therefore reinstate our prior decision as modified by this opinion and again AFFIRM the sentences imposed on defendants Vallone, Hopper, Dunn and Bartoli.