United States of America v. Timmothy Williams

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1260
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIMMOTHY WILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 09-CR-00090 — Philip P. Simon, Chief Judge.
SUBMITTED JANUARY 23, 2014 — DECIDED FEBRUARY 7, 2014 *
Before FLAUM, MANION, and KANNE, Circuit Judges.
PER CURIAM. Timmothy Williams pleaded guilty to an
indictment charging him with crimes related to identity theft,
and the district court used the guidelines in effect at sentencing
to calculate his imprisonment range. That range was higher
After examining the briefs and record, we have concluded that oral
*
argument is unnecessary. Thus, the appeal is submitted on the briefs and
record. See FED. R. APP. P. 34(a)(2)(C).

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2 No. 13-1260
than it would have been if calculated under the guidelines in
effect when Williams committed his crimes, but this posed no
constitutional problem under our circuit’s precedent at the
time of sentencing. See United States v. Demaree, 459 F.3d 791,
795 (7th Cir. 2006). While this case was on appeal, however, the
Supreme Court held that applying the guidelines in effect at
sentencing violates the ex post facto clause if it raises the
defendant’s imprisonment range. See Peugh v. United States, 133
S. Ct. 2072, 2078 (2013).
The government agrees with Williams that, in light of
Peugh, use of the guidelines in effect at the time of sentencing
resulted in plain error. Thus, the only issue here is the nature
of the remedy: whether we should remand for resentencing, as
Williams urges, or retain jurisdiction and order a limited
remand to ask the district court whether it wishes to resentence
him, as the government suggests. We conclude that remanding
for resentencing is most appropriate.
Williams pleaded guilty to an 11-count indictment that
charged him with misusing social security numbers, 42 U.S.C.
§ 408(a)(7)(B), identity theft, 18 U.S.C. § 1028(a)(7), making a
false statement to an IRS agent, 18 U.S.C. § 1001(a)(2), and
aggravated identity theft, 18 U.S.C. § 1028A(a)(1). The manda-
tory penalty for aggravated identity theft is a two-year prison
term, which must be served consecutively to any other
imprisonment imposed. See 18 U.S.C. § 1028A(a)(1). For the
other counts, the district court calculated an imprisonment
range of 37 to 46 months under the 2012 guidelines manual.
This range included an upward adjustment under U.S.S.G.
§ 2B1.1(b)(2)(A) because Williams’s crimes involved more than
10 victims. Exercising its discretion to go above the guidelines

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No. 13-1260 3
range, the court sentenced him to 56 months’ imprisonment, in
addition to the 24 months imposed for aggravated identity
theft.
Williams would not have received the upward adjustment
for involving more than 10 victims if the district court had used
the guidelines that were in place four years earlier when he
committed his crimes. Under those guidelines, a “victim”
means a person who has suffered monetary loss or physical
harm, U.S.S.G. § 2B1.1 cmt. n.1 (2008), and several of Wil-
liams’s “victims” experienced neither. Without the upward
adjustment, his imprisonment range would have been only 30
to 37 months.
Williams did not raise this issue at sentencing, so on appeal
he argues that using the wrong range is plain error that
requires remanding for resentencing. No remand would be
necessary if the district court had stated that the sentence
would remain the same no matter the calculated range,
because then the error would be harmless. See United States v.
Burge, 683 F.3d 829, 834 (7th Cir. 2012); United States v. Paladino,
401 F.3d 471, 483 (7th Cir. 2005). But Chief Judge Simon did not
say that he would have given the same sentence if the range
had been lower. Nor does the record permit us to draw that
conclusion. So some type of remand is needed.
The government opposes remanding for resentencing,
contending that the judge might have imposed the same
sentence anyway because he emphasized that Williams had
inflicted serious non-monetary harm and imposed an above-
range prison term. But acknowledging uncertainty about what
the district court would have done, the government says that

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4 No. 13-1260
we should retain jurisdiction of this case and issue a limited
remand. With this limited remand, the government explains,
the judge can tell us whether he would have imposed a shorter
sentence under a lower guidelines range.
We have used this approach for certain types of errors, but
they are not present here. See, e.g., Paladino, 401 F.3d at 483–85;
United States v. Taylor, 520 F.3d 746, 747–48 (7th Cir. 2008);
United States v. Redmond, 667 F.3d 863, 876 (7th Cir. 2012).
Paladino, Taylor, and Redmond did not involve the incorrect
calculation of the guidelines range; unlike this case, the district
courts in those cases correctly applied the guidelines but were
merely unaware of their discretion to deviate from them. This
distinction is significant because the Supreme Court requires
district courts to apply the guidelines correctly as a prerequi-
site to exercising their sentencing discretion. See Peugh, 133
S. Ct. at 2080; Gall v. United States, 552 U.S. 38, 50 (2007). When
a district court errs in determining the guidelines
range—which is what happened here, through no fault of the
sentencing judge—there is plain error. That error generally
requires remanding for resentencing so the district court can
receive the correct guidelines advice before sentencing the
defendant. See United States v. Goodwin, 717 F.3d 511, 520–21
(7th Cir. 2013); United States v. Pineda-Buenaventura, 622 F.3d
761, 767 (7th Cir. 2010); United States v. Avila, 557 F.3d 809, 822
(7th Cir. 2009); Garret, 528 F.3d at 527; United States v. Hawk,
434 F.3d 959, 963 (7th Cir. 2006).
The government notes two instances in which we retained
jurisdiction and issued a limited remand despite finding plain
error in the guidelines calculation. See United States v. Maxwell,
724 F.3d 724, 729 (7th Cir. 2013); United States v. Billian, 600

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No. 13-1260 5
F.3d 791, 795 (7th Cir. 2010). But in neither instance did we set
up the rule urged by the government that only this limited
remand is proper when we find plain error in these circum-
stances. Our normal practice is to presume that the improperly
calculated guidelines range influenced the choice of sentence
unless the judge said otherwise at sentencing.
See, e.g., Goodwin, 717 F.3d at 520–21; Burge, 683 F.3d at 834. We
continue to follow that approach here and therefore will direct
a remand for resentencing so the district court can sentence
Williams based on the guidelines range of 30 to 37 months.
Accordingly, the sentence is VACATED, and the case is
REMANDED for resentencing consistent with this opinion.

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