                            NONPRECEDENTIAL DISPOSITION
                     To be cited only in accordance with Fed. R. App. P. 32.1




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

                                  Submitted July 30, 2013
                                  Decided August 16, 2013

                                              Before

                            ILANA DIAMOND ROVNER, Circuit Judge

                            DIANE P. WOOD, Circuit Judge

                            ANN CLAIRE WILLIAMS, Circuit Judge

No. 10-2184

UNITED STATES OF AMERICA,                                 On Remand from the
               Plaintiff-Appellee,                        United States Supreme Court

      v.

MARVIN PEUGH,
                    Defendant-Appellant.



                                           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
No. 10-2184                                                                                Page 2

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, 133 S. Ct.
2072 (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, 133 S. Ct. 2072, 2088 (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 reference 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.
