United States v. Timmothy Williams, 2014 U.S. App. LEXIS 2363

Williams pleaded guilty to 11 counts related to social security misuse, identity theft, false statements to an IRS agent, and aggravated identity theft.
The district court sentenced Williams using the guidelines in effect at sentencing, resulting in 56 months plus 24 months for aggravated identity theft, above the range under the 2012 guidelines.
Under 2012 guidelines, the range was 37 months with an upward adjustment for more than 10 victims; using the 2008 guidelines would have yielded a 30–37 month range.
The 2008 definition of “victim” did not encompass several of Williams’s so-called victims, so the upward adjustment would not have applied under older guidelines.
The Supreme Court later held in Peugh that applying the guidelines in effect at sentencing when they differ from the ones at offense violates the Ex Post Facto Clause if it raises the sentence.
Williams argued plain error and urged remand for resentencing; the government urged retention with a limited remand to ask whether resentencing would occur.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether using the sentencing guidelines in effect at sentencing was plain error after Peugh.	Williams: plain error since wrong range used.	Government: error is plain; remand or limited remand appropriate.	Plain error; remand for resentencing required.
What remedy is appropriate for the miscalculated guidelines range.	Remand for resentencing to apply correct range.	Limited remand to let district court say if shorter sentence would have been imposed.	Remand for resentencing is appropriate; limited remand rejected.
Whether the district court’s silence on the impact of a lower range affects harmless error analysis.	If judge would have imposed same sentence, error harmless.	Judge’s statements did not show same sentence; cannot assume.	Record does not permit harmless error conclusion; remand necessary.

Peugh v. United States, 133 S. Ct. 2072 (Supreme Court 2013) (ex post facto limits use of post-offense guidelines at sentencing)
United States v. Demaree, 459 F.3d 791 (7th Cir. 2006) (early consideration of guidelines timing)
United States v. Burge, 683 F.3d 829 (7th Cir. 2012) (harmless error and whether remand is appropriate when range is misapplied)
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005) (limited remand and harmless-error considerations in guideline issues)
United States v. Taylor, 520 F.3d 746 (7th Cir. 2008) (limited remand approach discussed in certain errors)
United States v. Redmond, 667 F.3d 863 (7th Cir. 2012) (distinguishes scenarios involving misapplication of guidelines)
United States v. Goodwin, 717 F.3d 511 (7th Cir. 2013) (remand to correct guideline calculation in sentencing)
United States v. Pineda-Buenaventura, 622 F.3d 761 (7th Cir. 2010) (remand and guideline-based sentencing considerations)
United States v. Avila, 557 F.3d 809 (7th Cir. 2009) (guidelines calculation error and remand implications)
United States v. Hawk, 434 F.3d 959 (7th Cir. 2006) (application of guidelines and sentencing discretion)
United States v. Maxwell, 724 F.3d 724 (7th Cir. 2013) (limited remand approach not adopted here for similar errors)
United States v. Billian, 600 F.3d 791 (7th Cir. 2010) (limited remand not applicable to the present kind of error)