United States of America v. Frank Diaz

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 1, 2013
Decided June 14, 2013
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12-3117
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANK DIAZ,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District
of Illinois.
No. 1:09-cr-00327-1
Virginia M. Kendall,
Judge.
O R D E R
In 2007, defendant Frank Diaz participated in a bank fraud scheme in which he and
his partners obtained stolen checks, forged endorsements on them, and then deposited the
stolen and fraudulently endorsed checks at multiple Chicago-area banks. Diaz and his co-
participants then transferred, withdrew, and spent the funds they obtained. Diaz was
caught and indicted. He ultimately pled guilty to one count of bank fraud, 18 U.S.C. §
1344, and one count of unlawfully using a means of identification of another person, 18
U.S.C. § 1028A(a)(1). He was sentenced to 48 months in prison on the bank fraud count
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 12-3117 Page 2
and a consecutive 24 month term on the aggravated identity theft count for a total of 72
months in prison.
Diaz challenges his sentence on appeal. His briefs raise three issues, but we need
only address one. Pursuant to this circuit’s precedents, the district court applied the
sentencing guidelines that were in effect on the date Diaz was sentenced, not the guidelines
that were in effect at the time he committed his crimes. Diaz argues that the later set of
guidelines increased the district court’s calculation of the number of victims of his bank
fraud and resulted in the improper imposition of a 4-level offense level enhancement under
U.S.S.G. § 2B1.1(b)(2)(B) in violation of the ex post facto clause of the Constitution. On
June 10, 2013, while his appeal was pending, the Supreme Court decided Peugh v. United
States, ___ U.S. ___, ___ S.Ct. ___, 2013 WL 2459523 (June 10, 2013). The Court reversed this
circuit’s precedent and held that the ex post facto clause of the Constitution is violated when
a defendant is sentenced under guidelines that were promulgated after the commission of
his criminal acts that result in a more punitive guidelines range than would have applied
under the guidelines in effect at the time the offense was committed. Id. at *10 (“A
retrospective increase in the Guidelines range applicable to a defendant creates a sufficient
risk of a higher sentence to constitute an ex post facto violation.”)
The sentencing transcript does not make clear that the district court would have
applied the same sentence under the older guidelines, and the government has not argued
that any ex post facto violation would have been harmless error. See, e.g., id. at *14, n.8.
Accordingly, we vacate and remand for resentencing pursuant to Peugh. Given the number
of arguments Diaz raised in mitigation at his original sentencing and his argument on
appeal that the district court failed to address his principal arguments sufficiently, in the
resentencing the district court may wish to apply the procedure we outlined in United
States v. Garcia-Segura, ___ F.3d ___, ___, 2013 WL 2402682, at *2 (7th Cir. June 3, 2013).
VACATED AND REMANDED.

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