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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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