Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:09-cr-00067--George W. Lindberg, Judge.
The opinion of the court was delivered by: Hamilton, Circuit Judge.
ARGUED SEPTEMBER 27, 2011--
Before FLAUM, KANNE, and HAMILTON, Circuit Judges.
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 prop- erties 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 resi- dences. 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 bank- rupt 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 sev- eral 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 war- rant 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 argu- ments. But we agree with the Robertsons' final argument, that the sentencing judge failed to consider adequately their unusually strong evidence of self-motivated reha- bilitation. 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 recom- mended offense level of 19, compared to a recommended offense level of 22 under the 2010 Guidelines. Elizabeth's*fn1 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.*fn2
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 (2000); California Dep't of Corrections v. Morales, 514 U.S. 499, 506 n.3 (1995); Miller v. Florida, 482 U.S. 423, 432
(1987); Weaver v. Graham, 450 U.S. 24, 29 (1981); Lindsey v. Washington, 301 U.S. 397, 401-02 (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 sig- nificant risk of enhanced punishment forbidden by the ex post facto clause.
When the federal Sentencing Guidelines were manda- tory, 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 sen- tencing 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 con- vincing 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.
With the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (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 ...