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Judges uphold man's remanded drug sentence

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The 7th Circuit Court of Appeals rejected a defendant’s argument that the District Court violated the cross-appeal rule when it based his new sentence on remand on evidence that wasn’t relied upon at his first sentencing hearing.

Martin Avila appealed his original 396-month sentence for drug offenses, and the 7th Circuit ordered him to be re-sentenced because the District Court relied on the wrong base offense level. The Circuit Court remanded with instructions to “consider the Guidelines range that properly reflects the amount of drugs Avila distributed.”

At his first sentencing, the probation officer attributed 24,234 kilograms of marijuana to him, which would lead to a base offense level of 36, not 38 as the report stated. On remand, the government submitted an addendum to the pre-sentence report that included the drug quantities reflected in the trial testimony of Avila’s co-conspirators that the probation officer excluded from the first report.

By using the new increased amount of drugs as stated at trial, it led to a base level offense of 38, to which Avila didn’t object. The District judge then sentenced him to 365 months in prison.

In United States of America v. Martin Avila, No. 09-2681, Avila argued the judge should have used the original drug quantities, which would have produced a base offense level of 36 and a guideline range of 235 to 293 months. He relied on Greenlaw v. United States, 554 U.S. 237 (2008), to argue that the District Court can’t on remand correct a guidelines-calculation error that the government didn’t raise on cross appeal.

But his reliance on that case is misplaced, the 7th Circuit per curiam opinion stated. The appellate court remanded the case so that the District judge could re-sentence him using the correct offense level. In addition, the government didn’t add a new sentencing request because it always argued his base offense level is 38. Since that’s the base offense level the District judge initially used, the government had no reason to cross-appeal.

“Finally, Greenlaw does not bar a district judge from imposing the same sentence on remand, 554 U.S. at 253-54, and, in any case, the judge sentenced Avila to 365 months imprisonment — 31 months less than his initial 396-month sentence,” the judges wrote.

They also pointed out that the judges didn’t limit the remand to re-sentencing based on the drug quantity listed in the initial pre-sentence report, but instructed the lower court to sentence Avila based on the amount of drugs he distributed.

“Using only evidence from the original trial proceedings, the district court did precisely that. The district court thus acted within the scope of the remand order and committed no error, plain or otherwise.”

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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