09-2681 U.S. v. Avila

Listen to this article

Sentencing
Resentencing on remand

A court resentencing a defendant after remand can base the new sentence on evidence that, although part of the original trial record, was not relied upon at the first sentencing.

“Here, we ordered the district judge to ‘consider the Guidelines range that properly reflects the amount of drugs Avila distributed.’ Avila, 557 F.3d at 823.
In the first appeal, we were aware that, in the government’s view, evidence at trial showed that Avila distributed sufficient drug quantities to support a base offense level of 38. Id. at 813, 822. Consequently, we did not limit the remand to resentencing based on the drug quantity listed in the initial presentence report, but instructed the district 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.”

Affirmed.

09-2681 U.S. v. Avila

Appeal from the United States District Court for the Southern District of Indiana, Hamilton, J., Per Curiam.

Full Text