In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2681
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARTIN A VILA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:02-cr-00141—David F. Hamilton, Judge.
A RGUED JANUARY 25, 2011—D ECIDED M ARCH 7, 2011
Before K ANNE, E VANS, and W ILLIAMS, Circuit Judges.
P ER C URIAM. 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 (7th Cir. 2009). At
2 No. 09-2681
resentencing, the district judge corrected the understate-
ment in the drug quantity attributable to the defendant,
recalculated the guidelines range using the correct
offense level, and sentenced him to 365 months’ impris-
onment, 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.
Avila was tried for conspiracy to possess methamphet-
amine, cocaine, and marijuana with intent to distribute.
See 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(viii), (b)(1)(B)(ii),
(b)(1)(B)(vii). At trial, Wilbert Avant and Rene Nava-
Rubio, two of Avila’s coconspirators, testified that he
supplied them with a variety of drugs that they sold in
the Indianapolis area in 2000 and 2001. Combined, Avant
and Nava-Rubio testified that they received more than
58 kilograms of methamphetamine, 80 kilograms of
cocaine, and 363 kilograms of marijuana from Avila
over the course of the conspiracy. Following a two-day
trial, a jury found Avila guilty.
A probation officer prepared a presentence investiga-
tion report, which no party challenged at sentencing. The
report omitted some of the drugs that, according to
the trial testimony, Avila supplied to Avant and Nava-
Rubio. With these omissions, the report attributed only
9.072 kilograms of methamphetamine, 30 kilograms of
cocaine, and 90.072 kilograms of marijuana to the con-
No. 09-2681 3
spiracy. The probation officer converted these drugs to
a marijuana equivalency of 24,234 kilograms, see U.S.S.G.
§ 2D1.1 cmt. n.10(E), and reported that this quantity
of drugs generated a base offense level of 38 under
U.S.S.G. § 2D1.1(c)(1). The correct base offense level
for 24,234 kilograms of marijuana is actually 36. U.S.S.G.
§ 2D1.1(c)(2).
The district judge accepted the base offense level of
38 and the guidelines sentencing range of 324 to 405
months’ imprisonment from the report. The judge noted
that Avila played a key role in the conspiracy, had a
significant criminal history, showed no remorse, and
that his prospects for rehabilitation were virtually zero.
The judge then sentenced Avila to 396 months’ imprison-
ment.
In his first appeal, as relevant here, Avila argued that
the sentencing judge incorrectly calculated his base
offense level. Avila, 557 F.3d at 809. He asserted that 36,
not 38, is the proper base offense level for 24,234 kilo-
grams of marijuana. The government responded that
the trial evidence supported a finding of more than
30,000 kilograms of marijuana, allowing a base offense
level of 38. Observing that 36 is the correct base offense
level for 24,234 kilograms of marijuana, we remanded
for resentencing with instructions to “consider the Guide-
lines range that properly reflects the amount of drugs
Avila distributed.” Id. at 823.
On remand, the government submitted an addendum
to the presentence report that included the drug
quantities reflected in the trial testimony of Avila’s
4 No. 09-2681
coconspirators that the probation officer had ex-
cluded from the first report. After including these
drug quantities, the probation officer now attributed the
equivalent of 132,508 kilograms of marijuana to the con-
spiracy and calculated a base offense level of 38, a con-
clusion to which Avila did not object. The judge empha-
sized that he was not relying on the addendum itself,
but computed the drug quantity directly from the evi-
dence at trial. Using conservative estimates of the drug
quantities reflected in the testimony of Avant and Nava-
Rubio, the district judge calculated that the conspiracy
handled the equivalent of 132,363 kilograms of mari-
juana—more than 100,000 kilograms above the level
needed to generate a base offense level of 38. Avila
did not object to the judge’s procedure or finding. The
judge calculated a new guidelines range of 292 to 365
months and sentenced Avila to a reduced sentence of
365 months’ imprisonment.
On appeal, Avila now argues that the district
court plainly erred when it sentenced him based on
drug quantities that it did not consider at his first sen-
tencing hearing. He contends that the judge should
have used the original drug quantities, producing a base
offense level of 36 and a guidelines range of 235 to 293
months. Avila invokes Greenlaw v. United States, 554 U.S.
237 (2008), to argue that the district court cannot on
remand correct a guidelines-calculation error that the
government did not raise on a cross-appeal.
In Greenlaw, the district court sentenced the defendant
below the mandatory minimum sentence. Id. at 241-42.
No. 09-2681 5
The defendant appealed, seeking an even lower sen-
tence, and the Eighth Circuit sua sponte ordered the
district court to increase the sentence to the mandatory
minimum. Id. at 242-43. The Supreme Court held that
the court of appeals could not correct the sentencing
error to the detriment of the defendant because the gov-
ernment had not cross-appealed to request a sentencing
increase. Id. at 244-45.
Avila’s reliance on Greenlaw is misplaced. The purpose
of the cross-appeal rule is to give “fair notice” to Avila
that the appellate court may increase his sentence. Id.
at 245. But here, neither the government nor any court
has so surprised Avila. Rather than ordering his sen-
tence increased, we simply remanded the case so that
the district judge could resentence Avila using the
correct offense level for the amount of drugs that he
distributed. Likewise, the government has not added a
new sentencing request, either in this court or in the
district court, because it has consistently maintained
that Avila’s base offense level is 38. And because 38 is
the base offense level the district judge initially used, the
government had no reason to cross-appeal. See Massa-
chusetts Mut. Life Ins. Co. v. Ludwig, 426 U.S. 479, 480-81
(1976) (party may defend a court ruling on any ground
without taking a 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 relevant inquiry in an appeal challenging a
district judge’s discretion at resentencing to consider
6 No. 09-2681
matters not previously raised on appeal is the scope of
remand. See United States v. Husband, 312 F.3d 247, 250
(7th Cir. 2002). The scope of remand is determined by
this court’s opinion. Id. at 251. If an opinion identifies
“a discrete, particular error that can be corrected on
remand without the need for a redetermination of
other issues, the district court is limited to correcting
that error.” United States v. Parker, 101 F.3d 527, 528 (7th
Cir. 1996). But in the absence of a mandate limiting the
scope of remand, it is reasonable for a district judge to
consider disputed sentencing issues. United States v.
Schroeder, 536 F.3d 746, 752 (7th Cir. 2008).
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 other-
wise.
Therefore, the judgment of the district court is A FFIRMED.
3-7-11