                              In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 05-4213
UNITED STATES OF AMERICA,
                                                    Plaintiff-Appellee,
                                  v.

REBECCA S. DEMAREE,
                                               Defendant-Appellant.
                           ____________
             Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
           No. 1:05CR00022-001—David F. Hamilton, Judge.
                           ____________
       ARGUED JULY 11, 2006—DECIDED AUGUST 11, 2006
                           ____________


  Before BAUER, POSNER, and KANNE, Circuit Judges.
  POSNER, Circuit Judge. The only question presented by this
criminal appeal is whether, the federal sentencing guide-
lines having been made advisory by the Supreme Court in
United States v. Booker, 543 U.S. 220 (2005), a change in the
guidelines that expands the guidelines range for a crime is
an ex post facto law and so cannot be applied to a defendant
who committed his crime before the change.
  The defendant in this case had pleaded guilty to wire
fraud and tax offenses growing out of her embezzlement
of almost $300,000. Under the 2000 version of the guidelines,
in force when she committed these crimes, the sentencing
2                                                 No. 05-4213

range was 18 to 24 months. But under the 2004 version,
which among other changes relevant to her case reflects an
increase in the punishment range for wire fraud to bring it
into line with punishments for similar theft and fraud
offenses, U.S.S.G., App. C, amendment 617 (Supp. 2002), the
sentencing range is 27 to 33 months. The judge applied the
2004 guidelines, as he was required to do by the Sentencing
Reform Act, 18 U.S.C. § 3553(a)(4)(A)(ii), and sentenced her
to 30 months. But he added that if the 2000 guidelines were
applicable to her case instead, he would have sentenced her
to only 27 months (above the guidelines range, but not quite
so far above as the 30-month sentence that he actually gave
her). Demaree has appealed, and the government has
confessed error, but we are not required to accept its
confession. E.g., United States v. Walker, 447 F.3d 999, 1005-07
and n. 7 (7th Cir. 2006).
  Article I, section 9, clause 3 of the Constitution forbids
Congress to pass an ex post facto law, and Congress can-
not be allowed to evade the prohibition by delegating
penal authority to an agency. Prater v. U.S. Parole Comm’n,
802 F.2d 948, 954 (7th Cir. 1986) (en banc). But the purpose
of the clause is to protect people against being punished for
conduct that was not criminal when they engaged in it, or
being punished more severely than their crime was punish-
able when committed, or being deprived of defenses that
had been available then, or otherwise being blindsided by
a change in law. E.g., Collins v. Youngblood, 497 U.S. 37, 42
(1990); Miller v. Florida, 482 U.S. 423, 429 (1987). The purpose
is not to enable criminals to calculate with precision the
punishments that might be imposed on them. See Dobbert v.
Florida, 432 U.S. 282, 293-94 (1977); Prater v. U.S. Parole
Comm’n, supra, 802 F.2d at 954. That would be both remote
from the concerns that animate the ex post facto clause and
infeasible. The sentencing guidelines are so complex, and
No. 05-4213                                                    3

even before they were demoted from mandatory to advisory
status incorporated so many leeways for the exercise of
judgment by the probation service and district judges, that
no criminal could have guessed within three months what
her sentence would be if she committed Demaree’s offenses.
   The Supreme Court, however, in Miller v. Florida, 482
U.S. 423 (1987), held that Florida’s sentencing guidelines,
which resembled the federal guidelines before Booker (that
is, were mandatory), could not be applied retroactively. The
courts of appeals, including our own, quickly fell into line
and held that the principle of Miller applied to the federal
sentencing guidelines as well: changes in the guidelines
could not be applied to defendants who had committed
their crimes before the changes if the changes would
increase the sentence. United States v. Seacott, 15 F.3d 1380,
1384-86 (7th Cir. 1994); United States v. Schnell, 982 F.2d 216,
218 (7th Cir. 1992) (collecting cases).
  The courts of appeals have continued to so rule since
Booker, see, e.g., United States v. Baretz, 411 F.3d 867, 873-77
(7th Cir. 2005); United States v. Cruzado-Laureano, 404 F.3d
470, 488 (1st Cir. 2005); United States v. Roberts, 442 F.3d 128,
130 (2d Cir. 2006); United States v. Iskander, 407 F.3d 232, 242-
43 (4th Cir. 2005); United States v. Reasor, 418 F.3d 466, 479
(5th Cir. 2005); United States v. Harmon, 409 F.3d 701, 706
(6th Cir. 2005); United States v. Lopez-Solis, 447 F.3d 1201,
1204-05 (9th Cir. 2006); United States v. Foote, 413 F.3d 1240,
1248-49 (10th Cir. 2005), but without considering the
possible impact of that decision. So far as appears, the point
had not been raised in any of these cases. That is not
surprising. Booker is recent and most of the sentences
reviewed in the cases would have been imposed before
that decision; so the judge, on the authority of cases like
Seacott and Schnell, would have applied the guidelines that
4                                                 No. 05-4213

had been in force when the crime was committed. The
Justice Department would not have challenged the use of
the old guidelines, for it considers that use required to avoid
violating the ex post facto clause.
  Only two opinions address the bearing of Booker on the ex
post facto issue. One is our opinion in United States v. Roche,
415 F.3d 614, 619 (7th Cir. 2005), where after noting that
“Booker demoted the Guidelines from rules to advice,” we
said that “this removes the foundation of Seacott and similar
decisions” that had applied Miller to the guidelines. The
other opinion is to the same effect. United States v. Barton,
2006 WL 2164260, at *4 n. 4 (6th Cir. Aug. 2, 2006).
   The test of an ex post facto law has been variously
stated by the Supreme Court as whether it places the
defendant at a disadvantage or substantial disadvantage
compared to the law as it stood when he committed the
crime of which he has been convicted, changed the defini-
tion of the crime or increased the maximum penalty for it, or
imposed a significant risk of enhanced punishment. 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); Weaver v.
Graham, 450 U.S. 24, 29 (1981) Lindsey v. Washington, 301 U.S.
397, 401-02 (1937) (per curiam). Any of these formulas,
interpreted literally, would encompass a change in even
voluntary sentencing guidelines, for official guidelines even
if purely advisory are bound to influence judges’ sentencing
decisions. Most federal sentences, as the parties note,
continue after Booker to be within the guidelines’ sentencing
ranges.
  But it is a disservice to courts to interpret their verbal
formulas without reference to context. The guidelines
system in the Miller case required the judge to have “clear
and convincing” reasons to depart from a guidelines
sentencing range and a sentence within that range could not
No. 05-4213                                                  5

be appealed. 482 U.S. at 432-33. The federal sentenc-
ing guidelines before Booker were similarly constraining.
If any regulation traceable to Congress that disadvan-
tages a criminal defendant is therefore an ex post facto law,
even if it is purely advisory, the constitutional prohibition
will be unmoored from both its purpose and the circum-
stances in which statutes and regulations have heretofore
been deemed to be ex post facto laws.
  Suppose Congress passed a joint resolution urging federal
judges to give heavier sentences to white-collar criminals, or
a statute requiring victim impact statements in all cases. Or
suppose Congress appropriated more money for federal
prisons on the theory that prison crowding induces judges
to give shorter prison sentences. Or suppose the President
nominated and the Senate confirmed judges who had
pledged to get tough on criminals. Such measures would
tend to lead to longer sentences on average, but the effect on
the values animating the ex post facto clause would be
attenuated, and outweighed by the windfalls that would be
conferred on criminals lucky enough to have committed
their crimes before the measure was promulgated and by
the difficulty of gauging the effect on sentencing of an enact-
ment that does not establish a sentencing range from
which it is difficult to depart.
  The parties respond that since a sentence within the
guidelines range is presumptively reasonable, e.g., United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); see also
United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006), and
therefore unlikely to be reversed on appeal, altering the
range presumptively alters the sentence. That is not true.
The judge is not required—or indeed permitted, United
States v. Brown, 450 F.3d 76, 81-82 (1st Cir. 2006)—to
“presume” that a sentence within the guidelines range is the
correct sentence and if he wants to depart give a reason why
6                                                   No. 05-4213

it’s not correct. All he has to do 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). See, e.g., United States v.
Miller, 450 F.3d 270, 275 (7th Cir. 2006). His choice of
sentence, whether inside or outside the guideline range, is
discretionary and subject therefore to only light appellate
review. United States v. Walker, 447 F.3d 999, 1008 (7th Cir.
2006); United States v. Baker, 445 F.3d 987, 991 (7th Cir. 2006);
United States v. Morales, 445 F.3d 1081, 1086 (8th Cir. 2006).
The applicable guideline nudges him toward the sentencing
range, but his freedom to impose a reasonable sentence
outside the range is unfettered.
  The parties are forced to acknowledge, moreover, that
a rule that a guidelines change cannot be applied retro-
actively if it would be adverse to the defendant would
have in the long run a purely semantic effect. Instead of
purporting to apply the new guideline, the judge who
wanted to give a sentence based on it would say that in
picking a sentence consistent with section 3553(a) he had
used the information embodied in the new guideline. For
when the Sentencing Commission changes a guideline, it
does so for a reason; and since it is a body expert in criminal
punishments, its reason is entitled to the serious consider-
ation of the sentencing judge. A judge who said he was
persuaded by the insight that informed the new guideline to
give a sentence within the range established by it could not
be thought to be acting unreasonably. So to the other
reasons for rejecting the ex post facto argument we add
futility: whenever a law or regulation is advisory, the judge
can always say not that he based his sentence on it but that
he took the advice implicit in it. A judge is certainly entitled
to take advice from the Sentencing Commission.
No. 05-4213                                                  7

   We conclude that the ex post facto clause should apply
only to laws and regulations that bind rather than advise, a
principle well established with reference to parole guide-
lines whose retroactive application is challenged under the
ex post facto clause. Garner v. Jones, supra, 529 U.S. at 256;
California Dep’t of Corrections v. Morales, supra, 514 U.S. at
511-13; Glascoe v. Bezy, 421 F.3d 543, 547 (7th Cir. 2005);
Prater v. U.S. Parole Comm’n, supra, 802 F.2d at 953-54;
Wallace v. Christensen, 802 F.2d 1539, 1553-54 (9th Cir. 1986);
Dufresne v. Baer, 744 F.2d 1543, 1549-50 (11th Cir. 1984);
Warren v. U.S. Parole Comm’n, 659 F.2d 183, 195-96 (D.C. Cir.
1981); Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977). As
for the confession of error that the government makes in its
brief, the assistant U.S. attorney who argued the appeal
acknowledged that the government is waging a rearguard
action against Booker and wants the guidelines to bind as
tightly as possible because it believes that judges are more
likely to use their Booker-conferred discretion to sentence
below than above the guidelines sentencing ranges. This
produces the paradox that while the ex post facto clause is
intended to protect criminal defendants, it is here invoked
by the government in the hope that it will lead to longer
sentences. It is not an attractive argument.
                                                   AFFIRMED.
8                                            No. 05-4213

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—8-11-06
