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United States of America v. Martin Avila

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ARGUED JANUARY 25, 2011

Before KANNE, EVANS, and WILLIAMS, Circuit Judges.

The issue in this successive appeal is whether the district court on remand could correct a previously undetected factual error in its drug-quantity finding that had favored the defendant, Martin Avila. During the first appeal, Avila successfully argued that the district court sentenced him using an offense level that did not correspond to the original drug-quantity finding, so we remanded for resentencing. See United States v. Avila, 557 F.3d 809 (7thCir. 2009). At resentencing, the district judge corrected the understatement in the drug quantity attributable to the defendant, recalculated the guidelines range using the correct offense level, and sentenced him to 365 months’ imprisonment, 31 months below the original sentence. Avila now argues that the district court violated the cross-appeal rule by basing the new sentence on evidence that, although part of the original trial record, was not relied upon at the first sentencing hearing. Because the court did not violate the cross-appeal rule and acted within the scope of our remand, we affirm his sentence.

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