              United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604

                                          May 24, 2016

                                              Before

                              WILLIAM J. BAUER, Circuit Judge

                              RICHARD A. POSNER, Circuit Judge

                              DAVID F. HAMILTON, Circuit Judge




No. 14-3216
                                                       Appeal from the United States
DAVID CONRAD,                                          District Court for the Northern
    Petitioner-Appellant,                              District of Illinois, Eastern Division.

      v.                                               No. 14 C 4343

UNITED STATES OF AMERICA,                              Amy J. St. Eve, Judge.
    Respondent-Appellee.


                                           ORDER

    The opinion of this court issued on March 4, 2016, is amended by replacing one paragraph
with a new paragraph.

    The original paragraph on pages 4 and 5 was:

     “It’s true that a change in the guidelines range does not alter the range of permissible
sentences, because the judge doesn’t have to sentence within the applicable guidelines range;
yet the average length of sentences for the crime in question is, as noted in Peugh, likely to rise
as a result of an increase in that range. To call an increase in sentence length, however
effectuated, “procedural” seems a misuse of the word. But although the increase in the
guidelines range of which the defendant complains both seems substantive and postdated his
crime, we don’t think he’s entitled to be resentenced.”
Appeal No. 14-3216                                                                         Page 2



The replacement paragraph is:


     “It’s true that a change in the guidelines range does not alter the range of permissible
sentences, because the judge doesn’t have to sentence within the applicable guidelines range;
yet the average length of sentences for the crime in question is, as noted in Peugh, likely to rise
as a result of an increase in that range. To call an increase in sentence length, however
effectuated, “procedural” might seem a misuse of the word. But the Supreme Court has
reserved the label “substantive” (meaning therefore retroactive) for rules that change the
sentence that a judge can lawfully impose. See Schriro v. Summerlin, supra, 542 U.S. at 352. A
change in the guidelines affects the sentence that a judge is likely to impose but does not alter
the range of sentences that he can lawfully impose. So although the increase in the guidelines
range of which the defendant complains in this case not only postdated his crime but also could
have had a significant effect on his sentence, he is not entitled to be resentenced.”
