United States v. Michael Vallone, 2014 U.S. App. LEXIS 9172

Defendants convicted of a large, sophisticated tax-fraud conspiracy (loss > $60 million) that ran from 1994 to 2003.
At sentencing (2007–2008), the district court applied the Guidelines edition in effect at sentencing; defendants argued this violated the Ex Post Facto Clause because the tax-loss table was made more punitive in the November 2001 Guidelines.
The specific Guidelines change raised the base offense level for ~ $60M loss from 25 (Nov. 2000) to 30 (Nov. 2001).
The Supreme Court granted certiorari, vacated, and remanded in light of Peugh v. United States, which held that applying an increased Guidelines range during sentencing can create an ex post facto problem.
On remand the Seventh Circuit held no ex post facto violation: the charged offense was a continuing conspiracy that extended past Nov. 1, 2001, none of these defendants proved withdrawal before that date, and the “one-book”/grouping rules permit applying the later Guidelines to conduct that straddles the effective date.
The court reinstated its prior opinion and affirmed sentences of Vallone, Hopper, Dunn, and Bartoli.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether using the post‑2001 (more punitive) tax-loss table at sentencing violated the Ex Post Facto Clause	Sentencing used Guidelines in effect at sentencing rather than at time of offenses; the Nov. 2001 table penalizes them retrospectively	Conspiracy was a continuing offense that extended past Nov. 1, 2001; under the one‑book rule and grouping rules the later Guidelines apply	No ex post facto violation: conspiracy straddled Nov. 1, 2001 and none withdrew before that date, so the 2001 Guidelines properly applied
Whether the fact that most (98–99%) of the loss predated Nov. 1, 2001 prevents application of the 2001 table	Majority of loss occurred before the revised table; applying later table is unfair/retrospective	Pecuniary loss amount is not required to sustain conspiracy; continuation of the conspiracy governs applicability of later Guidelines	Rejected: amount/timing of pecuniary loss is immaterial—continuation of the conspiracy controls; substantive‑reasonableness arguments remained available at sentencing

Peugh v. United States, 133 S. Ct. 2072 (2013) (retrospective Guidelines increases can create an ex post facto risk because the advisory range remains central to sentencing)
United States v. Booker, 543 U.S. 220 (2005) (rendered Guidelines advisory and preserved judge’s discretion, affecting post‑Booker sentencing analysis)
United States v. Vaughn, 433 F.3d 917 (7th Cir. 2006) (conspiracy that straddles a guideline amendment may be sentenced under amended Guidelines)
United States v. Demaree, 459 F.3d 791 (7th Cir. 2006) (pre‑Peugh case holding advisory Guidelines reduce ex post facto concerns; later abrogated by Peugh)
United States v. Vivit, 214 F.3d 908 (7th Cir. 2000) (one‑book rule and grouping can make post‑amendment Guidelines applicable to earlier conduct when offenses are grouped as a course of conduct)
United States v. Boyd, 208 F.3d 638 (7th Cir. 2000) (conspiracy that continued after Guidelines took effect justified application of Guidelines to the conspiracy)