527 F. App'x 554

7th Cir.

2013

UNITED STATES of America, Plaintiff-Appellee, v. Marvin PEUGH, Defendant-Appellant.

No. 10-2184

United States Court of Appeals, Seventh Circuit.

Submitted July 30, 2013. Decided Aug. 16, 2013.

722 F.3d 554

marks omitted). The only vehicle for Piscopo‘s claims would be a suit under 42 U.S.C. § 1983, but to state a claim under that section a plaintiff must allege that the defendants acted under color of state law. See London v. RBS Citizens, N.A., 600 F.3d 742, 746 (7th Cir.2010); Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir.2007); Kramer v. Vill. of North Fond du Lac, 384 F.3d 856, 861 (7th Cir.2004). Piscopo does not even try to allege that the defendants here are state actors. Nor could he. Neither of the defendants named in Piscopo‘s complaint (a private insurer and its insured), nor the witnesses or lawyers who allegedly spoke falsely, are connected to state or local government. Moreover, the complaint does not suggest that these people conspired with state actors to harm him. See Maniscalco v. Simon, 712 F.3d 1139, 1145 (7th Cir.2013); Lewis v. Mills, 677 F.3d 324, 333 (7th Cir.2012). A § 1983 suit against only private actors does not raise a substantial federal question, and therefore the suit was properly dismissed for lack of subject-matter jurisdiction. See Georgakis v. Illinois State University, No. 13-1367, 722 F.3d 1075, 1077, 2013 WL 3600739 (7th Cir. July 16, 2013) (“[A] frivolous suit does not engage federal jurisdiction.“).

A claim whose dismissal is affirmed because the claim lacks a substantial federal question not only fails to engage a federal court‘s subject-matter jurisdiction; the claim is also disposed of with prejudice because a frivolous federal claim “will go nowhere in any court.” El v. AmeriCredit Fin. Servs., Inc., 710 F.3d 748, 751 (7th Cir.2013); see also Georgakis, 722 F.3d at 1078 (justifying the with-prejudice treatment of a federal claim dismissed as insubstantial “to avoid burdening the court system with a future suit that should not be brought anywhere.“). Because the disposition of this case is with prejudice, we also observe that Piscopo‘s purported federal claim would go nowhere in any court for a second reason: preclusion. Piscopo‘s second federal lawsuit is identical to his federal suit dismissed for lack of subject-matter jurisdiction a month earlier; therefore the issue of federal jurisdiction in the second suit was precluded by the adverse ruling in the first. See Georgakis, 722 F.3d at 1077; United States v. Funds in the Amount of $574,840, 719 F.3d 648, 651-52 (7th Cir.2013); Matrix IV, Inc. v. Am. Nat. Bank & Trust Co. of Chi., 649 F.3d 539, 547 (7th Cir.2011). Even if the first federal suit were ignored, the second federal suit would be precluded by the earlier state-court suit because that suit occurred between the same parties, it reached a final judgment on the merits, and Piscopo had an opportunity in that litigation to raise his contentions about the testimonial and argumentation errors. See Dookeran v. Cnty. of Cook, Ill., 719 F.3d 570, 575-76 (7th Cir.2013) (discussing requirements of Illinois claim-preclusion law).

AFFIRMED.

Michael D. Love, Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

Allan A. Ackerman, Chicago, IL, for Defendant-Appellant.

Before ILANA DIAMOND ROVNER, Circuit Judge, DIANE P. WOOD, Circuit Judge and ANN CLAIRE WILLIAMS, Circuit Judge.

ORDER

This case is before us on remand from the United States Supreme Court. For the reasons set forth below, we remand to the district court for resentencing.

A jury convicted Marvin Peugh of five counts of bank fraud. He was sentenced to seventy months’ imprisonment, and ordered to pay nearly two million dollars in restitution. The fraudulent scheme was complex, but for these purposes it suffices to note that it involved representing to a bank that his agricultural companies had valuable contracts that they did not have, and inflating the balances of bank accounts by writing a series of bad checks. Because Peugh petitioned the Supreme Court for certiorari on but one sentencing issue, we need not recite all of the facts in detail. For reference, the full factual and procedural background underlying this case have been described in our earlier decision, United States v. Peugh, 675 F.3d 736 (7th Cir.2012), vacated and remanded, --- U.S. ---, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013).

The defendant petitioned the Supreme Court for a writ of certiorari on one sentencing issue alone--whether Peugh‘s sentence violated the ex post facto clause of the United States Constitution when he was sentenced under Guidelines promulgated after he committed his criminal acts, where the new version provided a higher applicable Guidelines sentencing range than the version in place at the time he committed the offense. Specifically, the 2009 Guidelines in effect at the time of sentencing recommended a sentence of 70-87 months. The low end of the 2009 guidelines range was 33 months higher than the high end of the 1998 Guidelines range in effect when Peugh committed his crime.

At the time we considered Peugh‘s appeal, this Circuit had concluded that the retroactive application of Guidelines does not create any ex post facto problems. United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006). After Demaree, we declined on many occasions to overrule its holding. See, e.g., United States v. Sanchez, 710 F.3d 724, 727 (7th Cir.2013); United States v. Vallone, 698 F.3d 416, 489 (7th Cir.2012); United States v. Robertson, 662 F.3d 871, 876 (7th Cir.2011); United States v. Favara, 615 F.3d 824, 829 (7th Cir.2010).

The Supreme Court granted the defendant‘s petition in this case and, overruling Demaree, held that a court‘s use of the Guidelines in effect at the time of sentencing was an ex post facto violation, as the Guidelines had changed to the detriment of the defendant after he committed his offenses. Peugh v. United States, --- U.S. ---, 133 S.Ct. 2072, 2088, 186 L.Ed.2d 84 (2013). The judgment in this case was reversed and it was remanded to this court for “further proceedings consistent with this opinion.” Id.

The parties have filed a Joint Circuit Rule 54 Statement reflecting their mutual view that the case should be remanded to the district court for resentencing. We agree. Because Peugh petitioned for certiorari on only one issue, however, the remainder of the holdings in Peugh, 675 F.3d 736 (7th Cir.2012) remain intact. We therefore reinstate and incorporate by ref-erence our opinion of March 28, 2012 (675 F.3d 736) with the exception of subsection II.C of the opinion which addresses the ex post facto clause and sentencing. We remand to the district court for resentencing consistent with the Supreme Court‘s opinion in this matter.

IT IS SO ORDERED.

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