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 think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.