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Criminal Procedure — ex post facto clause

By: WISCONSIN LAW JOURNAL STAFF//May 19, 2014//

Criminal Procedure — ex post facto clause

By: WISCONSIN LAW JOURNAL STAFF//May 19, 2014//

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U.S. Court of Appeals for the 7th Circuit

Criminal

Criminal Procedure — ex post facto clause

Where a conspiracy continued into 2003, use of the 2001 sentencing guidelines did not violate the ex post facto clause.

“This is not to say that the defendants would have no basis to argue that the application of the 2001 tax table had a distorting effect on their advisory sentencing ranges, given that so much of the loss (or in Hopper’s case, all of it) had occurred before the more punitive version of the table became effective. This is an argument as to the substantive reasonableness of the advisory range and the sentence that the court ought to have imposed. But it was an argument that was available to the defendants at the time they were sentenced—indeed, the entire premise of Demaree was that after Booker, the sentencing judge has wide discretion to entertain these very sorts of arguments. Nothing about Peugh has altered the nature or basis of that argument. As we have seen, regardless of whether Demaree or a pre-Booker case like Vaughn was the controlling precedent, the defendants were appropriately sentenced using the revised tax table that took effect in November 2001; the effect of the tax table on the defendants’ sentences was always self-evident, and because the defendants were sentenced after Booker, they were free to argue that a sentence within the advisory range produced, in part, by the revised tax table, was substantively unreasonable. The defendant in Vaughn made just such an argument. See 433 F.3d at 923–25.”

Affirmed.

08-3690, 08-4246, 08-4320, 09-1864 & 09-2174 U.S. v. Vallone

Appeals from the United States District Court for the Northern District of Illinois, Norgle, J., Rovner, J.

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