In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-1651 & 11-1618
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
H ENRY R OBERTSON and E LIZABETH R OBERTSON,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cr-00067—George W. Lindberg, Judge.
A RGUED S EPTEMBER 27, 2011—D ECIDED N OVEMBER 16, 2011
Before F LAUM, K ANNE, and H AMILTON, Circuit Judges.
H AMILTON , Circuit Judge. In the late 1990s, Henry and
Elizabeth Robertson were involved in a Chicagoland
mortgage fraud scheme. Through their company,
Elohim, Inc., the Robertsons bought residential prop-
erties and then sold those properties to nominee buyers
at inflated prices. Along the way they provided lenders
with false information about the buyers’ finances, sources
of down payments, and intentions to occupy the resi-
2 Nos. 11-1651 & 11-1618
dences. The scheme involved 37 separate fraudulent
transactions and resulted in a net loss of more than
$700,000 to various lenders.
After the scheme collapsed, the Robertsons went bank-
rupt but were not charged with any crimes. They went
about the laudable business of rebuilding their lives and
rehabilitating themselves. Elizabeth continued to work
as a full-time nurse in a hospital’s pediatric intensive care
unit. Henry worked as a full-time cable installer and
technician. They raised their three children and became
fully engaged in their community. Each volunteered as
a coach in youth sports, and Henry assisted in fighting
crime in their neighborhood by serving as president of
their block club. Neither Henry nor Elizabeth engaged
in any criminal activity from 1999 to 2010, apart from
a reckless driving offense by Henry in 2002.
But the Robertsons could not escape their past. On the
day before the ten-year statute of limitations for one
crime would have expired, the government charged the
Robertsons with one count of wire fraud, 18 U.S.C. § 1343,
and two counts of bank fraud, 18 U.S.C. § 1344. The
Robertsons both pled guilty to a single count of wire
fraud, and both were sentenced on March 2, 2011. The
sentencing court based their sentences on the 2010
United States Sentencing Guidelines that were then in
effect. Elizabeth was sentenced to 41 months in prison,
and Henry was sentenced to 63 months. They were
also ordered to pay more than $700,000 in restitution.
The Robertsons appeal from their sentences on sev-
eral grounds. First, they argue that the district court’s
Nos. 11-1651 & 11-1618 3
use of the more severe 2010 Sentencing Guidelines
violated the ex post facto clause of the Constitution, and
they urge us to overrule United States v. Demaree, 459
F.3d 791 (7th Cir. 2006), which held that the ex post facto
clause does not apply to changes in the now-advisory
federal Sentencing Guidelines. They also argue that
their roles in the mortgage fraud scheme did not war-
rant a 2-level guideline enhancement imposed by the
sentencing court pursuant to U.S.S.G. § 3B1.1(c) for their
roles in organizing the scheme. We reject these argu-
ments. But we agree with the Robertsons’ final argument,
that the sentencing judge failed to consider adequately
their unusually strong evidence of self-motivated reha-
bilitation. For this reason, we vacate their sentences
and remand for resentencing. Because we remand, we
do not address the Robertsons’ additional argument
that their sentences were substantively unreasonable.
I. Sentencing Guidelines and the Ex Post Facto Clause
The Robertsons argue that the district court’s reliance
on the 2010 Sentencing Guidelines in determining their
guideline sentencing ranges violated the federal ex post
facto clause of the Constitution. The 2010 Guidelines
advised a higher offense level than the 1998 Guidelines,
which were in effect when they committed their crimes.
The 1998 Guidelines would have produced a recom-
mended offense level of 19, compared to a recommended
4 Nos. 11-1651 & 11-1618
offense level of 22 under the 2010 Guidelines. 1 Elizabeth’s
recommended range under the 2010 Guidelines was 41
to 51 months in prison, but under the 1998 Guidelines,
her range would have been 30 to 37 months. Henry’s
recommended range under the 2010 Guidelines was 63
to 78 months. His 1998 range would have been 46 to
57 months. We review their argument on this point for
plain error.2
1
Under the 1998 Guidelines, the wire fraud charge had a base
offense level of 6, with a 10-level increase for the amount of
loss, and a 2-level enhancement for fraud with more than one
victim. U.S.S.G. § 2F1.1(a), (b)(1)(K), and (b)(2) (1998). Under
the 2010 Guidelines, wire fraud carried a base level of 7, with
a 14-level increase based on the amount of loss. U.S.S.G.
§ 2B1.1(a), (b)(1)(H) (2010). The 2-level enhancement for use of
sophisticated means, § 2B1.1(b)(9)(C), the 2-level enhancement
for an aggravating role, § 3B1.1, and a 3-level reduction for
acceptance of responsibility, § 3E1.1(b), would have applied
under either set of Guidelines.
2
The government argues that the Robertsons waived their
ex post facto argument by failing to object to the application
of the 2010 Guidelines and by failing to make their constitu-
tional argument to the sentencing judge. We disagree. The
government has not suggested any possible strategic justifica-
tion for the Robertsons’ failure to preserve the issue before
the sentencing court, which, under this circuit’s precedent,
would have been futile. Under this circumstance, we can
assume forfeiture rather than waiver, and accordingly we
apply the plain error standard. See United States v. Anderson, 604
F.3d 997, 1001-02 (7th Cir. 2010) (examining forfeiture and
(continued...)
Nos. 11-1651 & 11-1618 5
Article I of the United States Constitution provides that
neither Congress nor any State shall pass any “ex post
facto Law.” See Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. An
unconstitutional ex post facto law places the defendant
at a substantial disadvantage compared to the law as it
stood when he committed the crime, by either changing
the definition of the crime, increasing the maximum
penalty for it, or imposing a significant risk of enhanced
punishment. See, e.g., Garner v. Jones, 529 U.S. 244, 255-56
(2000); California Dep’t of Corrections v. Morales, 514 U.S.
499, 506 n.3 (1995); Miller v. Florida, 482 U.S. 423, 432
(1987); Weaver v. Graham, 450 U.S. 24, 29 (1981); Lindsey
v. Washington, 301 U.S. 397, 401-02 (1937). Here,
the Robertsons’ advisory sentencing ranges increased
from 30-37 months to 41-51 months and 46-57 months to
63-73 months, respectively. The issue is whether that
change in the advisory guideline ranges imposed a sig-
nificant risk of enhanced punishment forbidden by the
ex post facto clause.
When the federal Sentencing Guidelines were manda-
tory, a later increase in a Guideline range certainly posed
a “substantial risk” that a defendant’s penalty would be
more severe. More than a “substantial risk,” a harsher
punishment was highly probable, as the Guidelines
acknowledge in § 1B1.11 (directing use of Guidelines in
2
(...continued)
waiver). However, our standard of review is ultimately not
material. If we addressed the Robertsons’ argument de novo,
our conclusion would be the same.
6 Nos. 11-1651 & 11-1618
effect at time of crime if court determines that use of
current Guidelines would violate ex post facto clause).
Addressing this problem under a state’s system of sen-
tencing guidelines, the Supreme Court held in Miller v.
Florida that the ex post facto clause was violated when
the sentencing judge had to provide clear and con-
vincing written reasons for departing from the higher
mandatory Guideline range. Under that legal standard,
a defendant would be foreclosed from “challeng[ing]
the imposition of a sentence longer than his presump-
tive sentence under the old law.” 482 U.S. at 432-33.
With the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), however, the federal
Guidelines became advisory. It is no longer certain that
an increased Guideline range poses a “substantial risk”
that a defendant’s sentence will be harsher than it would
have been. Now, sentencing judges have broad discretion
to impose a non-guideline sentence by weighing the
factors under § 3553(a).
We explained this reasoning in United States v. Demaree,
459 F.3d 791, 795 (7th Cir. 2006), holding after Booker that
the ex post facto clause is not implicated by changes
in advisory Guidelines because the ex post facto clause
applies only to laws and regulations that are binding.
We acknowledged that sentencing judges will no doubt
be influenced by the Guidelines, but explained:
The judge is not required — or indeed permitted — to
“presume” that a sentence within the guidelines
range is the correct sentence and if he wants to depart
give a reason why it’s not correct. All he has to do
Nos. 11-1651 & 11-1618 7
is consider the guidelines and make sure that the
sentence he gives is within the statutory range and
consistent with the sentencing factors listed in
18 U.S.C. § 3553(a). His choice of a sentence, whether
inside or outside the guideline range, is discretionary
and subject therefore to only light appellate review.
The applicable guideline nudges him toward the
sentencing range, but his freedom to impose a rea-
sonable sentence outside the range is unfettered.
Id. at 794-95 (internal citations omitted); see also Gall v.
United States, 552 U.S. 38, 50 (2007) (in calculating the
sentence, the judge “may not presume that the Guide-
lines range is reasonable”); Rita v. United States, 551 U.S.
338, 351 (2007) (“the sentencing court does not enjoy
the benefit of a legal presumption that the Guidelines
sentence should apply”).
After Booker, advisory Guidelines do not limit a sen-
tencing judge’s discretion, and in a discretionary sen-
tencing regime, it would be incongruous to hold that
later, more severe Guidelines hold a “substantial risk”
of a harsher sentence. Put another way, a sentencing
court may take advice from the Sentencing Commis-
sion, regardless of when that advice was issued. A sen-
tencing court may consider past and present advisory
Guidelines, and even proposed advisory Guidelines
that have not yet taken effect. We have reaffirmed our
decision in Demaree many times since, see, e.g., United
States v. Holcomb, F.3d ___, 2011 WL 3795170, *4 (7th Cir.
Aug. 24, 2011); United States v. Favara, 615 F.3d 824, 829
(7th Cir. 2010); United States v. Panice, 598 F.3d 426,
8 Nos. 11-1651 & 11-1618
435 (7th Cir. 2010); and United States v. Nurek, 578 F.3d
618, 625-26 (7th Cir. 2009), and we will not overrule it here.
We acknowledge that even though the Sentencing
Guidelines are now advisory, several other circuits
have found that the Guidelines still play a powerful
“anchoring” role in determining a defendant’s ultimate
sentence and thus have held that use of later, more
severe Guidelines still creates an ex post facto problem.
See, e.g., United States v. Wethereld, 636 F.3d 1315, 1322
(11th Cir. 2011); United States v. Ortiz, 621 F.3d 82, 87 (2d
Cir. 2010); United States v. Lewis, 606 F.3d 193, 199 (4th Cir.
2010); United States v. Lanham, 617 F.3d 873, 889-90 (6th
Cir. 2010); United States v. Turner, 548 F.3d 1094, 1099-1100
(D.C. Cir. 2008). For the above reasons, we respectfully
disagree and follow the analysis set forth in Demaree.
On this ground, we affirm.
II. Organizing Role in the Offense
The Robertsons next argue that the district judge erred
in imposing a 2-level enhancement under the Guide-
lines pursuant to U.S.S.G. § 3B1.1, which calls for the
enhancement if a defendant was an “organizer,” “leader,”
“manager,” or “supervisor” in any criminal activity.
They contend that their respective roles in the scheme
fell short of the threshold necessary for the aggravating
role enhancement of § 3B1.1 to apply. We review de novo
the district court’s interpretation and application of the
Guidelines. United States v. Johnson, 612 F.3d 889, 892
(7th Cir. 2010). We review a district court’s factual deter-
Nos. 11-1651 & 11-1618 9
mination of a defendant’s role in the offense for clear
error, and we will reverse only if our review of all the
evidence leaves us with the definite and firm conviction
that a mistake has been made. See United States v. Johnson,
489 F.3d 794, 796 (7th Cir. 2007).
The enhancement permitted under the Guideline is
intended “to penalize more heavily those defendants
who bear greater responsibility for crimes involving
many individuals, both to reflect their greater degree
of culpability and in recognition that such individuals
are likely to profit more from the crime and pose a
greater danger to the community and risk of recidivism.”
United States v. Wasz, 450 F.3d 720, 729 (7th Cir. 2006); see
also U.S.S.G. § 3B1.1, cmt. To this end, U.S.S.G. § 3B1.1
authorizes a 4-level enhancement if the defendant was
“an organizer or leader of a criminal activity that in-
volved five or more participants or was otherwise ex-
tensive,” a 3-level enhancement if the defendant was
“a manager or supervisor (but not an organizer or leader)
and the criminal activity involved five or more par-
ticipants or was otherwise extensive,” and a 2-level
enhancement if the defendant was “an organizer, leader,
manager, or supervisor in any [other] criminal activity.”
The Guidelines provide seven factors that courts may
consider in applying the enhancement: (1) the exercise
of decision-making authority; (2) the nature of participa-
tion in the commission of the offense; (3) the recruitment
of accomplices; (4) the claimed right to a larger share of
the fruits of the crime; (5) the degree of participation
in planning or organizing the offense; (6) the nature and
10 Nos. 11-1651 & 11-1618
scope of the illegal activity; and (7) the degree of control
and authority exercised over others. U.S.S.G. § 3B1.1, cmt.,
n.4. However, no single § 3B1.1 factor is essential in
determining whether the adjustment applies, and a court
need not assign equal weight to each factor. See
United States v. Vallar, 635 F.3d 271, 280 (7th Cir. 2011);
United States v. Anderson, 580 F.3d 639, 649 (7th Cir. 2009).
Two lines of authority exist in our circuit concerning
whether or not a defendant must have exerted “control”
over other participants for the enhancement to apply.
Compare, e.g., Anderson, 580 F.3d at 650 (stating that
§ 3B1.1 enhancement “cannot be applied unless the de-
fendant exercised some control over others involved in
the commission of the offense”) (quotation marks and
citations omitted), and United States v. Fones, 51 F.3d 663,
668-70 (7th Cir. 1995) (holding that § 3B1.1 enhance-
ment was improperly applied where defendant lacked
control of or authority over another participant), with
United States v. Pira, 535 F.3d 724, 730 (7th Cir.
2008) (stating it is not necessary “ ‘that the defendant
exercised control, so long as the criminal activity involves
more than one participant and the defendant played a
coordinating or organizing role’ ”), quoting United States
v. Carrera, 259 F.3d 818, 827 (7th Cir. 2001). The Robertsons
argue that a showing of control is necessary for the en-
hancement to apply, relying primarily on a case with
similar facts from the D.C. Circuit, United States v. Quigley,
373 F.3d. 133 (D.C. Cir. 2004), and that no such showing
has been made here. The government, on the other
hand, argues that a showing of control is not necessary
and that we should follow the Carrera line of cases.
Nos. 11-1651 & 11-1618 11
We need not resolve this tension here. Under either
rationale, the clear error standard of review that governs
this issue on appeal is decisive. We believe the evi-
dence shows that the Robertsons played a sufficiently
aggravating role in the scheme, and we find that the
court did not clearly err in applying a 2-level enhance-
ment pursuant to § 3B1.1(c).
Thirty-seven times, the Robertsons, through their
company, Elohim, Inc., acted as the sellers in fraudulent
real estate transactions. Pursuant to their plea agree-
ments, the Robertsons admitted that, to facilitate this
scheme, they “recruited nominee buyers by promising
that, as nominees, they would not have to make down
payments, or occupy the residence.” They caused
inquiries to credit reporting agencies concerning the
credit histories of the nominee purchasers, and they
provided the nominee purchasers with funds to be used
for the down payments, as well as fraudulent documents
such as false gift affidavits and bills of sale. Elizabeth
specifically admitted that she “instruct[ed] the nominee
buyers to falsely represent the source of the funds,” and
both admitted that their scheme was conducted through
the “use” of nominee buyers.
Based on this evidence, the district court found that
the defendants “assisted and directed nominee buyers
in how to submit fraudulent documents in order to
carry out the fraudulent real estate transactions.” We
acknowledge that the degree of control they exerted over
the nominee buyers may have been limited, and the
scheme involved many other participants who were not
12 Nos. 11-1651 & 11-1618
charged. The evidence did not require the court to
impose the 2-level enhancement. But the nominee
buyers still answered to the Robertsons when it came
to falsifying the information provided to the lenders to
facilitate the scheme, and thus the buyers can fairly be
said to have operated under the Robertsons’ control.
The Robertsons’ roles were sufficient to allow the dis-
trict court to apply the 2-level aggravating role without
committing clear error. We affirm the district court
on this basis.
III. Consideration of Rehabilitation
Finally, the Robertsons argue that the district court
failed to consider adequately their unusually strong
evidence of rehabilitation in imposing its sentence. On
this point, we agree.
The Supreme Court recently reiterated “the principle
that ‘the punishment should fit the offender and not
merely the crime.’ ” Pepper v. United States, 131 S. Ct. 1229,
1240 (2011), quoting Williams v. New York, 337 U.S. 241,
247 (1949). “Highly relevant — if not essential — to [the]
selection of an appropriate sentence is the possession
of the fullest information possible concerning the defen-
dant’s life and characteristics.” Pepper, 131 S. Ct. at 1235,
quoting Williams, 337 U.S. at 247. This aim is codified in
18 U.S.C. § 3553(a), which requires that any sentence
imposed be “sufficient, but not greater than necessary”
to serve the sentencing goals of punishment, deter-
rence, protection of the public, and rehabilitation, and
which requires the court to consider “the history and
Nos. 11-1651 & 11-1618 13
characteristics of the defendant.” Adequate considera-
tion of a defendant’s evidence of rehabilitation fits
squarely within these parameters. Demonstrated self-
motivated rehabilitation is direct and relevant evidence
of “the need for the sentence imposed . . . to afford ade-
quate deterrence to criminal conduct; to protect the
public from further crimes of the defendant; [and to]
provide the defendant with needed educational or voca-
tional training . . . or other correctional treatment in the
most effective manner.” 18 U.S.C. § 3553(a)(2)(B)-(D).
The power of evidence of self-rehabilitation was
evident in Gall, where the Supreme Court noted that it
was reasonable for the district court to attach “great
weight” to a defendant’s decision to change his life
and withdraw from a drug distribution conspiracy:
“Compared to a case where the offender’s rehabilitation
occurred after he was charged with a crime, the District
Court here had greater justification for believing [the
defendant’s] turnaround was genuine, as distinct from
a transparent attempt to build a mitigation case.” 552
U.S. at 57. Such self-motivated rehabilitation “lends
strong support to the conclusion that imprisonment [is]
not necessary to deter [a defendant] from engaging in
future criminal conduct or to protect the public from
his future criminal acts.” Id. at 59.
In the Robertsons’ case, the government did not charge
the defendants with their crimes until nearly ten years
had passed. By the time they were sentenced, it was
nearly twelve years after the fact. Those delays were not
contrary to law, but they meant in the Robertsons’ case
14 Nos. 11-1651 & 11-1618
that the relevant sentencing factors looked much
different than they might have a decade earlier. At their
sentencing in 2011, they presented unusually strong
evidence of their self-motivated efforts to rehabilitate
themselves. Apart from Henry’s conviction for reckless
driving in 2002, both Henry and Elizabeth had refrained
from committing any other criminal offenses. Each main-
tained full-time, gainful employment. Elizabeth had
overcome a particularly traumatic childhood to become
a pediatric intensive care nurse and was, at the time
of sentencing, on the brink of retirement after three de-
cades of service. Henry worked as a cable installer and
technician. They had raised three children, seeing two
through college and into graduate school and seeing the
third serve in the military. Henry had taken an active
role in preventing crime in his neighborhood as president
of its block club, and both Henry and Elizabeth volun-
teered as youth sports coaches. The Robertsons were
compliant with pretrial supervision. Even the govern-
ment acknowledged that, over a “relatively significant
amount of time,” the Robertsons had “demonstrate[d] to
the Court, to society, that they can stay out of trouble.”
In short, the Robertsons’ principal argument at sen-
tencing was that they had rehabilitated themselves of
their own accord. Our review of the record persuades us
that the sentencing court failed to address this evidence
in that context. Concerning the Robertsons’ criminal
histories, the court acknowledged that Henry had not
committed any crimes since 2002 and that Elizabeth
lacked any criminal history. But other than noting, with-
out further detail or explanation, that Elizabeth had
Nos. 11-1651 & 11-1618 15
provided “excellent service . . . as a professional in the
medical field,” it is not apparent that the sentencing court
considered the Robertson’s unusually strong evidence of
self-motivated rehabilitation over the past ten years.
Because the court’s silence makes it impossible to
discern that it appropriately balanced the Robertsons’
rehabilitated lives and characters against the seriousness
of their offense for purposes of 18 U.S.C. § 3553(a), we
find this minimal treatment to be insufficient.3
Separate from but related to the Robertsons’ joint argu-
ment regarding their rehabilitation evidence, Henry
argues that the district court failed to explain adequately
why it rejected his argument that Guidelines calculation
substantially overstated his criminal history in light of
his post-offense rehabilitation. Sentencing policy recog-
nizes that a within-Guidelines sentence may be inappro-
priately high when “reliable information indicates that
the defendant’s criminal history category substantially
over-represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant
will commit other crimes.” U.S.S.G. § 4A1.3(b)(1). Here,
Henry’s convictions that resulted in criminal history
points took place more than 20 years ago, during a period
when Henry was struggling with substance abuse. Since
overcoming his addictions, Henry’s only criminal acts
3
We note, however, that the district judge agreed to modify
Elizabeth’s date to report to prison to allow her to continue to
work as a nurse long enough to become eligible for retirement
benefits.
16 Nos. 11-1651 & 11-1618
were the charged mortgage fraud scheme and a single
reckless driving offense. The probation office and the
government agreed that it would be appropriate to
treat Henry’s criminal history as overstated due to the
passage of time, yet the district court’s only acknowledge-
ment of this argument was its comment that Henry was
not “youthful or immature” when he committed the
reckless driving offense in 2002. Henry’s age and relative
maturity in 2002 were beside the point. The reckless
driving offense was so minor that it did not even count
toward his criminal history calculation, and the con-
viction was nearly a decade old at the time of Henry’s
sentencing. The issue the court should have addressed
is whether Henry’s criminal history reflects the person
he has become since committing the charged offense
in light of his intervening evidence of self-motivated
rehabilitation. Here too, the court’s silence warrants
remand.
A sentencing court need not comprehensively discuss
each of the factors listed in 18 U.S.C. § 3553(a), but it must
give the reasons for its sentencing decision and address
all of a defendant’s principal arguments that “are not so
weak as not to merit discussion.” United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005); United States
v. Kilgore, 591 F.3d 890, 893 (7th Cir. 2010) (“In determining
a reasonable sentence, the district court need not com-
prehensively discuss all of the 18 U.S.C. § 3553(a) factors,
but must explain its decision and address nonfrivolous
sentencing arguments.”). Substantial and reliable evi-
dence of genuine rehabilitation presents a non-frivolous
argument for imposing a sentence below the Guideline
Nos. 11-1651 & 11-1618 17
range. See Pepper, 131 S. Ct. at 1235; Gall, 552 U.S. at 57.
Such arguments must be properly addressed and
weighed by the sentencing court. A sentencing court’s
consideration of a defendant’s non-frivolous arguments
in favor of mitigation certainly may be brief, but it must
also be meaningful. As we explained in Cunningham:
“Whenever a district judge is required to make a discre-
tionary ruling that is subject to appellate review, we have
to satisfy ourselves, before we can conclude that the
judge did not abuse his discretion, that he exercised his
discretion, that is, that he considered the factors relevant
to that exercise.” 429 F.3d at 679. Here, we cannot deter-
mine whether the sentencing judge abused his discretion
by, for example, overemphasizing the seriousness of
the Robertsons’ offense or Henry’s criminal history or
underemphasizing their rehabilitation in balancing the
§ 3553(a) factors, because it is not apparent from the
sentencing transcript that such a balancing took place.
Accordingly, we vacate and remand for resentencing.
On remand, the district court may not revisit the
original guideline calculations using the 2010 Sentencing
Guidelines. However, the court may consider the differ-
ences between the 1998 Guidelines and the 2010 Guide-
lines as part of its consideration of the § 3553(a) fac-
tors, and the court should carefully weigh and explain
its consideration of the Robertsons’ evidence of self-
motivated rehabilitation.
V ACATED AND R EMANDED.
11-16-11