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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. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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