                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 14-3216
DAVID CONRAD,
                                                Petitioner-Appellant,

                                 v.

UNITED STATES OF AMERICA,
                                               Respondent-Appellee.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
              No. 14 C 4343 — Amy J. St. Eve, Judge.
                     ____________________

   ARGUED DECEMBER 15, 2015— DECIDED MARCH 4, 2016
               ____________________

   Before BAUER, POSNER, and HAMILTON, Circuit Judges.
    POSNER, Circuit Judge. This appeal is from the denial of
the defendant’s motion to vacate his sentence under 28
U.S.C. § 2255 on the ground that Peugh v. United States, 133
S. Ct. 2072 (2013), forbids subjecting a criminal defendant to
an increase in his guidelines sentencing range made by the
Sentencing Commission after the defendant had committed
the crime for which he is being sentenced. When the defend-
ant in the present case was sentenced, the guidelines range
2                                                   No. 14-3216


applicable to his multiple violations of the federal laws relat-
ing to child pornography was 360 months to life; the judge
sentenced him to 198 months, and we affirmed the convic-
tion and sentence in United States v. Conrad, 673 F.3d 728 (7th
Cir. 2012). Yet under the version of the guidelines in force
years earlier, when the defendant had committed the crimes
for which he was convicted, the guidelines range had been
only 121 to 151 months.
    Peugh was decided five months after the defendant’s
conviction and sentence became final, and consistently with
28 U.S.C. § 2255(f)(3) he filed his section 2255 petition exactly
one year after the decision in Peugh, which he cites for the
proposition that a sentence influenced by a guidelines range
promulgated after a defendant committed the offense of
which he’s been convicted violates the ex post facto clause—
Art. I, § 9, cl. 3 of the U.S. Constitution for federal prosecu-
tions, Art. I, § 10, cl. 1 for state prosecutions. So Peugh held.
The question presented by this case is whether Peugh applies
retroactively, and thus to the sentence meted out to the de-
fendant in our case on the basis of the guidelines range in
force when the district judge sentenced him—a range having
a higher ceiling than the range in force when he committed
the crime.
    The Supreme Court hasn’t said whether Peugh applies
retroactively. Peugh itself is equivocal, stating on the one
hand that errors in calculating a guidelines range are “pro-
cedural” but on the other hand that the ex post facto clauses
forbid government “to enhance the measure of punishment
by altering the substantive ‘formula’ used to calculate the
applicable sentencing range.” 133 S. Ct. at 2080, 2083, 2088.
The formula referred to is the guidelines, which create a sen-
No. 14-3216                                                    3


tencing range that though not mandatory is highly influen-
tial. Elsewhere in the opinion we read that the guidelines are
“the lodestone of sentencing,” that “sentencing decisions are
anchored by the Guidelines,” and that as a practical matter,
though not required by law, “when a Guidelines range
moves up or down, offenders’ sentences move with it.” Id. at
2083, 2084.
    The significance of the reference in Peugh to “procedural”
errors is that in the Court’s view a practice declared after the
sentence in a case becomes final to be a procedural error, in
contrast to one declared to be a substantive error, does not
justify resentencing unless the rule that declared the practice
erroneous was a “watershed” rule. See, e.g., Whorton v. Bock-
ting, 549 U.S. 406, 417–20 (2007); Schriro v. Summerlin, 542
U.S. 348, 351–52 (2004). The defendant in our case does not
argue that the prohibition on sentences influenced by in-
creases in the guidelines range after the defendant commit-
ted the crime for which he is being sentenced is such a “wa-
tershed” rule. He could not make such an argument with a
straight face given that neither United States v. Booker, 543
U.S. 220 (2005), which made the Sentencing Guidelines dis-
cretionary, nor Alleyne v. United States, 133 S. Ct. 2151 (2013),
which required that facts affecting mandatory minimum
sentences must be proved to a jury beyond a reasonable
doubt, have been deemed retroactive, McReynolds v. United
States, 397 F.3d 479 (7th Cir. 2005); Crayton v. United States,
799 F.3d 623 (7th Cir. 2015), even though both Booker and Al-
leyne were very important decisions. The Supreme Court has
declared only one procedural decision to be a “watershed”:
Gideon v. Wainwright, 372 U.S. 335 (1963)—the famous deci-
sion that held that the defendant in a criminal case has a
constitutional right to counsel. So for the defendant to pre-
4                                                  No. 14-3216


vail in this case he must first convince us that Peugh’s rule
was substantive rather than procedural.
    The attempt to distinguish between a substantive and a
procedural rule is not a happy one, at least in the present
context, because most procedural rules have substantive ef-
fects. The right to counsel in a criminal case, the requirement
of proof beyond a reasonable doubt to convict, the right of
allocution, the right to cross-examine, the right of self-
representation—these are all procedural rules, but they have
profound substantive effects, which is why they doubtless
are “watershed” rules and therefore criminal defendants can
invoke them retroactively. But rules altering permissible sen-
tence length are explicitly substantive even when the sentenc-
ing judge is not required to impose the higher or lower sen-
tence permitted by the new rule. When Congress increases
the maximum punishment for some crime there is no effect
on sentencing procedures—the submission of a presentence
report prepared by the probation service, the lawyers’ ar-
guments and maybe a witness’s statement, the judge’s ques-
tioning, the allocution, the judge’s statement of the sentence
and of the defendant’s right to appeal (unless waived). So a
change in the permissible length of a sentence is not proce-
dural. The change does not affect the sentencing process but
only the sentencing result—the length of the sentence, which
is a matter of substance no less than the verdict is.
    It’s true that a change in the guidelines range does not al-
ter 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,
No. 14-3216                                                    5


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 resen-
tenced.
    In the first case in which the Supreme Court considered
the scope of the ex post facto clause, Calder v. Bull, 3 Dall. (3
U.S.) 386 (1798), Justice Samuel Chase explained that the fol-
lowing retrospective applications of law are prohibited by it:
“1st. Every law that makes an action, done before the pass-
ing of the law, and which was innocent when done, criminal;
and punishes such action. 2nd. Every law that aggravates a
crime, or makes it greater than it was, when committed. 3rd.
Every law that changes the punishment, and inflicts a great-
er punishment, than the law annexed to the crime, when
committed. 4th. Every law that alters the legal rules of evi-
dence, and receives less, or different, testimony, than the law
required at the time of the commission of the offence, in or-
der to convict the offender.” Id. at 390. What the Sentencing
Commission did when it increased the guidelines range for
the defendant’s crime in this case could be thought encom-
passed by Justice Chase’s second and third points, but that is
not an inevitable conclusion. The principal objection to ex
post facto laws—the first in Justice Chase’s list—is that they
punish the defendant, without warning, for conduct that he
rightly considered lawful when he engaged in it. The objec-
tion to increasing retroactively the punishment for conduct
clearly criminal when the defendant engaged in it is differ-
ent—it is that the decision whether to comply with a crimi-
nal law is normally based on a comparison of the gains and
losses of violating the law, and the losses depend on the ex-
pected sentence if the criminal is caught. Imposing an un-
6                                                   No. 14-3216


foreseen heavier punishment retroactively distorts the ability
of a potential criminal to make a rational choice. He could
complain: “if only you had warned me of the consequences,
I would not have committed the crime.” One could imagine
the defendant in this case saying that, though he hasn’t done
so.
    But it is a safe bet that it is the rare would-be criminal
who consults the guidelines tables published by the Sentenc-
ing Commission in deciding whether to commit a crime. It
would be a futile search. He could not calculate with any
confidence where in the applicable range he would be pun-
ished if convicted, or indeed whether he would be punished
within the range instead of more severely or less so by a sen-
tence above or below the range. The top of the range when
our defendant committed his crime was 151 months, but
when he was sentenced it was life, and he was sentenced to
198 months—four years more than the guidelines ceiling
when he committed the crime, though within the statutory
maximum and therefore within the limits of his anticipation.
While Peugh holds that an “increase in the Guidelines range
applicable to a defendant creates a sufficient risk of a higher
sentence to constitute an ex post facto violation,” 133 S. Ct. at
2084, it makes a difference when the increase in the guide-
lines range takes place. If as in the present case it was before
Peugh was decided, the concern with overburdening the
courts with postconviction litigation has controlling weight
because, the guidelines not being binding on the sentencing
judge, the defendant—provided that the judge does not im-
pose a sentence higher than the statutory maximum when he
committed his crime—does not “face a punishment that the
law cannot impose upon him.” Schriro v. Summerlin, supra,
542 U.S. at 352; see also Montgomery v. Louisiana, 136 S. Ct.
No. 14-3216                                                    7


718, 729–30, 734 (2016). As explained in a case comparable to
this one, Hawkins v. United States, 724 F.3d 915, 919 (7th Cir.
2013), “fairness to victims of errors in guidelines calculation
that might or might not have lengthened a sentence (or
shortened it for that matter, thus conferring a windfall on the
defendant) must be balanced against the harm to victims of
judicial delay brought about by judges’ neglect of the social
interest in judicial finality.” See also Teague v. Lane, 489 U.S.
288, 310 (1989).
    To summarize: The defendant committed a crime. But be-
fore sentencing, the applicable guidelines range was in-
creased and the new range was used in his sentencing, with
the likely (though not certain, since sentencing within the
applicable guidelines range is not mandatory) effect of a
heavier sentence than if the old range had been used instead.
Then comes Peugh; and considerations of finality persuade
us that it should not apply retroactively. The sentence was
within the statutory range and was thus a sentence that the
judge was constitutionally permitted to give both before and
after Peugh. Peugh does not require that the defendant be re-
sentenced.
                                                      AFFIRMED
