ILNews

Judges uphold man's remanded drug sentence

Back to TopCommentsE-mailPrintBookmark and Share

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.”

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

ADVERTISEMENT