David Conrad v. United States, 2016 WL 851703

Background

Defendant was convicted of multiple federal child pornography offenses; district court sentenced him to 198 months. Seventh Circuit affirmed the conviction and sentence in United States v. Conrad.
At the time the offenses were committed, the Sentencing Guidelines range for his conduct was 121–151 months; by the time of sentencing the applicable Guidelines range had been increased to 360 months–life.
Peugh v. United States (decided after his sentence became final) held that applying an increased Guidelines range promulgated after the offense may violate the Ex Post Facto Clause.
The defendant filed a 28 U.S.C. § 2255 motion invoking Peugh, arguing Peugh should apply retroactively to require resentencing.
The district court denied the § 2255 motion; the Seventh Circuit considered whether Peugh’s rule is substantive (and thus retroactive) or procedural (and thus not retroactive absent a watershed rule).
The Seventh Circuit held Peugh’s rule does not apply retroactively here and affirmed denial of resentencing because the sentence remained within the statutory maximum and finality/administrative concerns weighed against retroactivity.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Peugh v. United States announced a retroactive rule entitling resentencing under 28 U.S.C. § 2255	Peugh forbids using a Guidelines range promulgated after the offense to increase a defendant’s sentence; this rule should apply retroactively to cases on collateral review	Peugh is not retroactive because it announces a procedural rule (not a substantive one) and is not a "watershed" procedural rule; finality and reliance interests counsel against retroactivity	Court held Peugh does not apply retroactively here; § 2255 relief denied and sentence affirmed
Whether Peugh’s rule is substantive or procedural for retroactivity purposes	Peugh framed the Guidelines formula as altering permissible punishment, creating ex post facto error	Peugh characterizes errors in Guidelines calculation as procedural; only watershed procedural rules are retroactive	Court treated the change as not warranting retroactivity—substantive/procedural distinction favored denying collateral relief
Whether a sentence within the statutory maximum but above the old Guidelines ceiling violates the Ex Post Facto Clause when Guidelines increased before sentencing but after the offense	Peugh suggests an increased Guidelines range can create a sufficient risk of higher punishment to violate Ex Post Facto	If sentence remains within statutory maximum, defendant still faced a punishment the law could impose; reliance and finality lessen need for resentencing	Court found no Ex Post Facto violation requiring resentencing where sentence was within statutory bounds and finality concerns prevailed
Whether finality and administrative burden outweigh resentencing interest when Guidelines changes occur before Peugh	Peugh’s rule should remedy fundamental unfairness regardless of administrative burden	Retroactivity would open floodgates of postconviction litigation and harm victims and judicial finality	Court emphasized finality and administrative burdens, declining to apply Peugh retroactively

Key Cases Cited

Peugh v. United States, 133 S. Ct. 2072 (2013) (held that applying a Guidelines range promulgated after the offense can create an Ex Post Facto violation)
United States v. Booker, 543 U.S. 220 (2005) (made the federal Sentencing Guidelines advisory)
Schriro v. Summerlin, 542 U.S. 348 (2004) (limits retroactivity of new procedural rules; only watershed rules apply retroactively)
Whorton v. Bockting, 549 U.S. 406 (2007) (procedural rule retroactivity framework)
Gideon v. Wainwright, 372 U.S. 335 (1963) (example of a watershed procedural rule: right to counsel)
Calder v. Bull, 3 Dall. 386 (1798) (early exposition of Ex Post Facto Clause prohibitions)
Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (discusses finality and retroactivity principles)
Hawkins v. United States, 724 F.3d 915 (7th Cir. 2013) (comparable Seventh Circuit treatment balancing finality against resentencing)
Teague v. Lane, 489 U.S. 288 (1989) (retroactivity framework for new constitutional rules)