United States v. Avila
2011 U.S. App. LEXIS 4387
| 7th Cir. | 2011Background
- Avila was convicted of conspiracy to possess methamphetamine, cocaine, and marijuana with intent to distribute, based on trial testimony from coconspirators.
- PSR attributed modest drug quantities to Avila, yielding a base offense level of 38 only after marijuana equivalency, which produced a 324–405 month guideline range and a 396-month sentence.
- On direct appeal, Avila argued the base offense level should be 36; this court remanded to reflect the proper amount of drugs distributed.
- On remand, the government submitted trial-evidence quantities; the district court calculated a much larger quantity (over 132,000 kg marijuana equivalent) and set a new range of 292–365 months, imposing 365 months.
- Avila contends the remand violated the cross-appeal rule by using evidence not relied on at the first sentencing; the government and court dispute this.
- The Seventh Circuit held the district court acted within the remand scope and affirmed the 365-month sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether remand to correct drug quantity was proper | Avila: remand should not rely on new evidence to alter base level | Avila: remand permissible to fix error; government supported 38 base level | Remand within scope; district court could use trial-based quantities |
| Whether Greenlaw cross-appeal bars the remand correction | Avila: Greenlaw prohibits increasing sentence without cross-appeal | Avila: Greenlaw applies; cross-appeal required for higher sentence | Greenlaw does not bar this remand; no cross-appeal necessary |
| Whether use of evidence from trial on remand was proper | Avila: district court relied on evidence not considered initially | Avila: government consistently maintained base level 38; trial evidence permissible on remand | District court acted within remand and relied on trial evidence to compute quantities |
Key Cases Cited
- Greenlaw v. United States, 554 U.S. 237 (U.S. 2008) (cross-appeal rule limits appellate correction that harms defendant)
- United States v. Husband, 312 F.3d 247 (7th Cir. 2002) (scope of remand hinges on the appellate mandate)
- United States v. Parker, 101 F.3d 527 (7th Cir. 1996) (discrete errors corrected on remand if within mandate)
- Massachusetts Mut. Life Ins. Co. v. Ludwig, 426 U.S. 479 (U.S. 1976) (party may defend ruling on any ground without cross-appeal)