green
Positive treatment
Quoted verbatim 1×
30.6 score
G Cite
cited 2× by 1 distinct case, last quoted 1996 ·
…is tethered to the factors contained in 3553(a)
at p. 768
✓
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993
2009
2026
Top citers, strongest first. 29 distinct citers.
How cited ↗
examined
Cited as authority (verbatim quote)
United States v. Jensen
the policy statements accompanying ussg 1b1.10 provide that if an amendment is not listed as covered, a reduction of sentence based on the amendment would not be consistent with the policy statement.
cited
Cited as authority (rule)
Roybal v. United States
See-United States Sentence ing Guidelines Manual § 1B1.10(a)(2); United States v. Avila, 997 F.2d 767, 768 (10th Cir. 1993).
discussed
Cited as authority (rule)
United States v. Ramsey
United States v. Torres- Aquino, 334 F.3d 939, 941 (10th Cir. 2003); United States v. Avila, 997 F.2d 767, 767 (10th Cir. 1993) (per curiam). 3 Mr. Ramsey argues that he is entitled to a § 3582(c)(2) reduction based on Amendment 794.
discussed
Cited as authority (rule)
United States v. Sandoval-Flores
In several cases both preceding and following Trujeque , panels of this circuit have affirmed the district court’s denial of § 3582 relief on the merits rather than remanding for dismissal for lack of jurisdiction, see, e.g., United States v. Avila, 997 F.2d 767, 768 (10th Cir. 1993); United States v. Darton, 595 F.3d 1191, 1197 (10th Cir. 2010), while other panels have held based on Trujeque that the lack of eligibility for § 3582(c)(2) relief is a jurisdictional matter requiring dismissal for lack of jurisdiction rather than denial on the merits, see, e.g., United States v. Hamilton, 525…
discussed
Cited as authority (rule)
United States v. Carter
See United States v. Torres-Aquino, 334 F.3d 939, 940-41 (10th Cir.2003) (holding reduction of sentence under § 3582(c)(2) based on amendment not listed in § 1B1.10(c) is not authorized); United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993) (per curiam) (same); see also United States v. Horn, 612 F.3d 524 , *536 527 (6th Cir.2010) (“Because Amendment 709 is not listed in subsection (c), the district court did not have the authority to resentence [defendant].”); United States v. Peters, 524 F.3d 905, 907 (8th Cir.2008) (holding Amendment 709 is not “covered amendment under § 1B1.1…
discussed
Cited as authority (rule)
United States v. Huckley Armstrong, A.K.A. Shorty
United States v. Perez, 129 F.3d 255, 259 (2d Cir.1997); United States v. Wyatt, 115 F.3d 606, 608-09 (8th Cir.1997); United States v. Drath, 89 F.3d 216, 218 (5th Cir.1996); United States v. Thompson, 70 F.3d 279, 281 (3d Cir.1995); United States v. Dullen, 15 F.3d 68, 70-71 (6th Cir.1994); United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993).
discussed
Cited as authority (rule)
United States v. Armstrong
United States v. Perez, 129 F.3d 255, 259 (2d Cir. 1997); United States v. W yatt, 115 F.3d 606 , 8 28 U.S.C. § 994 (o) stipulates that “[t]he Commission periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines . . . .” 7 608-0 9 (8th C ir. 1997 ); United States v. D rath, 89 F.3d 216, 218 (5th Cir. 1996); United States v. Thompson, 70 F.3 d 279, 2 81 (3d Cir. 199 5); United States v. Dullen, 15 F.3 d 68, 70 -71 (6th Cir. 199 4); United States v. A vila, 997 F.2d 767, 768 (10th Cir. 1993).
cited
Cited as authority (rule)
United States v. Ruiz-Dominguez
See U.S.S.G. § 1B1.10(a); United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993).
discussed
Cited as authority (rule)
United States v. McLain
United States v. Thompson, 70 F.3d 279, 281 (3d Cir.1995); United States v. Camacho, 40 F.3d 349, 354 (11th Cir. 1994); United States v. Cueto, 9 F.Sd 1488, 1440-41 (9th Cir.1993); United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993); United States v. Dowty, 996 F.2d 937, 938-39 (8th Cir.1993); United States v. Rodriguez, 989 F.2d 583, 587-88 (2d Cir.1993); but see United States v. Gross, 26 F.3d 552, 554-55 (5th Cir.1994) (court concluded that it could consider Amendment 500 because it clarified the guideline, as opposed to making a substantive change).
discussed
Cited as authority (rule)
United States v. Lopez-Perez
If there is no listing in subsection (c), the amendment is not to be applied retroactively United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993); United States v. Torres, 99 F.3d 360, 362-63 (10th Cir.1996); United States v. Jordan, 162 F.3d 1 (1st Cir.1998).
discussed
Cited as authority (rule)
United States v. Munoz
His argument is foreclosed by United States v. Avila, 997 F.2d 767, 768 (10th Cir. 1993) (holding amendment to U.S.S.G. § 3E1.1 not retroactive so not basis for sentence reduction).
discussed
Cited as authority (rule)
United States v. Jose Alberto Munoz
His argument is foreclosed by United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993) (holding amendment to U.S.S.G. § 3E1.1 not retroactive so not basis for sentence reduction). 11 Defendant's motion to expedite appeal is denied as moot.
examined
Cited as authority (rule)
United States v. Dorrough
(4×)
also: Cited "see"
As an appellate court we are always hindered, and often completely prevented, from effectively reviewing the district court's exercise of sentencing discretion if the district court fails to address the statutorily-mandated factors that Congress has said should direct and guide that discretion. 17 In any event, even if we were not to require the sentencing court to address explicitly the statutory factors, at a very minimum we require the sentencing court to "state the reasons for its action," Lee, 957 F.2d at 775 , and it goes without saying that the reasons provided by the court must have so…
discussed
Cited as authority (rule)
United States v. Ivy
The district court has discretion to reduce Ms. Ivy’s base offense level from 40 to 38, either on its own motion or upon a motion by Ms. Ivy, provided such reduction is warranted in light of the factors listed in 18 U.S.C. § 3553 (a). 18 U.S.C. § 3582 (c)(2); U.S.S.G. § lB1.10(a); see United States v. Telman, 28 F.3d 94, 96 (10th Cir.1994) (sentence reduction under 18 U.S.C. § 3582 (c)(2) “is not mandatory but is committed to the sound discretion of the trial court,” but trial court must consider relevant factors listed in 18 U.S.C. § 3553 (a)); United States v. Avila, 997 F.2d 767,…
discussed
Cited as authority (rule)
United States v. Tracy Dinah Ivy, AKA Tracy Norwood, United States of America v. Samuel Earl Norwood, United States of America v. Joye Collette Traylor, United States of America v. Raymond Howard Hickman, United States of America v. Kenny Taylor, AKA K-Dawg
After subtracting the two-point reduction for minor participation, her total offense level would be 36. 96 The district court has discretion to reduce Ms. Ivy's base offense level from 40 to 38, either on its own motion or upon a motion by Ms. Ivy, provided such reduction is warranted in light of the factors listed in 18 U.S.C. § 3553 (a). 18 U.S.C. § 3582 (c)(2); U.S.S.G. § 1B1.10(a); see United States v. Telman, 28 F.3d 94, 96 (10th Cir.1994) (sentence reduction under 18 U.S.C. § 3582 (c)(2) "is not mandatory but is committed to the sound discretion of the trial court," but trial court m…
discussed
Cited as authority (rule)
Charles A. Novey v. George Kilinger
United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993) ("[t]he policy statements accompanying U.S.S.G. 1B1.10 provide that if an amendment is not listed as covered, a reduction in sentence based on the amendment would not be consistent with the policy statement.").
discussed
Cited as authority (rule)
United States v. Alirio Rodriguez-Diaz
See Ebbole v. United States, 8 F.3d 630, 539 (7th Cir.1993) cert. denied, — U.S. -, 114 S.Ct. 1229 , 127 L.Ed.2d 573 (1994); United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993) (per curiam); Desouza v. United States, 995 F.2d 323, 324 (1st Cir.1993) (per curiam); United States v. Caceda, 990 F.2d 707, 710 (2nd Cir.) cert. denied sub nom., Rojas-Holguin v. United States, — U.S. -, 114 S.Ct. 312 , 126 L.Ed.2d 259 (1993).
discussed
Cited as authority (rule)
Harold A. Ebbole v. United States
De souza v. United States, 995 F.2d 323, 324 (1st Cir.1993) (per curiam); United States v. Caceda, 990 F.2d 707, 710 (2d Cir.1993); United States v. Dowty, 996 F.2d 937, 938-39 (8th Cir.1993) (per curiam); United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993) (per curiam).
cited
Cited as authority (rule)
United States v. Juan Benito Soto-Tapia
This argument is foreclosed by United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993). 2 AFFIRMED.
discussed
Cited "see"
United States v. Garcia
(2×)
See United States v. Avila, 997 F.2d 767, 767 (10th Cir. 1993); see also Dillon v. United States, 560 U.S. 817, 826 , 130 S.Ct. 2683 , 177 L.Ed.2d 271 (2010) (“A court’s power under § 3582(c)(2) ... depends in the first instance on the [Sentencing] Commission’s decision not just to amend the Guidelines but to make the amendment retroactive.”); United States v. Washington, 655 Fed.Appx. 714, 716 (10th Cir. 2016) (unpublished) (“To be eligible for a sentence reduction under § 3582(c)(2), the applicable Guidelines range must have been lowered by an amendment to the Guidelines listed i…
discussed
Cited "see"
United States v. Alton Nelson, Jr.
See Dorrough, 84 F.3d at 1311 (“There is no requirement that the district court make specific findings regarding each of the [§ 3553(a) ] factors as long as it states the reasons for its actions.”) (emphasis added). “[A]nd it goes without saying that the reasons provided by the court must have some correlation to the statutory factors set forth in § 3553(a).” Dorrough, 84 F.3d at 1313 (Ebel, J., concurring) citing United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993) (holding district court’s power to reduce a sentence in light of a subsequent modification to the sentencing gui…
cited
Cited "see"
United States v. Torres-Aquino
See United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993) (per curiam).
discussed
Cited "see"
United States v. Larry M. Jensen
See United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993) ("The policy statements accompanying USSG § 1B1.10 provide that if an amendment is not listed as covered, a reduction of sentence based on the amendment would not be consistent with the policy statement."); see also Torres, 99 F.3d at 362-63 (10th Cir.1996) (affirming the denial of a § 3582(c)(2) motion for reduction of sentence on the grounds that an amendment to the Guidelines could not be applied retroactively because it was not listed as having retroactive effect in USSG § 1B1.10(c)). 14 Here, in arguing that his sentence sho…
discussed
Cited "see"
Jaime Giraldo v. United States
See United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993); United States v. Dowty, 996 F.2d 937, 938-39 (8th Cir.1993). 10 Giraldo next argues that he was incorrectly charged with conspiracy and that, in any event, the amount of drugs attributed to him was erroneous.
discussed
Cited "see"
Bernard Williams v. United States
See United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993) (per curiam); United States v. Dowty, 996 F.2d 937, 938-39 (8th Cir.1993) (per curiam); Desouza v. United States, 995 F.2d 323, 324 (1st Cir.1993) (per curiam); United States v. Caceda, 990 F.2d 707, 710 (2d Cir.1993). 6 Lastly, Williams challenges for the first time on appeal the district court's consideration of certain "relevant conduct" in determining his sentence.
discussed
Cited "see"
United States v. Blanco
See United States v. Avila, 997 F.2d 767, 768 (10th Cir. 1993); United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993); Desouza v. United States, 995 F.2d 323, 324 (1st Cir. 1993). 6 Accordingly, the district court's order is affirmed. 1 Note 12 of the commentary to Sec. 2D1.1 deals with types and quantities of drugs not specified in the count of conviction which may be considered, under Sec. 1B1.3(a)(2) (relevant conduct), in determining the offense level.
discussed
Cited "see"
United States v. Blanco
See United States v. Avila, 997 F.2d 767, 768 (10th Cir. ___ _____________ _____ 1993); United States v. Wilson, 997 F.2d 429, 431 (8th Cir. _____________ ______ 1993); Desouza v. United States, 995 F.2d 323, 324 (1st Cir. _______ _____________ 1993).
discussed
Cited "see"
United States v. Edward James Boyd, Jr.
See United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993) (per curiam); United States v. Dowty, 996 F.2d 937, 938-39 (8th Cir.1993) (per curiam); Desouza v. United States, 995 F.2d 323, 324 (1st Cir.1993) (per curiam); United States v. Caceda, 990 F.2d 707, 710 (2d Cir.1993); Conwell v. United States, Case No. 93-1128 (6th Cir. June 14, 1993) (unpublished order). 7 Accordingly, we deny the motion to dismiss, and affirm the district court's order, entered on January 27, 1993.
discussed
Cited "see"
United States v. Melecio Aldana-Ortiz
See United States v. Avila, 997 F.2d 767, 768 (10th Cir.1993); United States v. Dowty, 996 F.2d 937, 938-39 (8th Cir.1993); DeSouza v. United States, 995 F.2d 323, 324 (1st Cir.1993); United States v. Caceda, 990 F.2d 707, 710 (2nd Cir.1993).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Henry AVILA, Defendant-Appellant
v.
Henry AVILA, Defendant-Appellant
93-1063.
Court of Appeals for the Tenth Circuit.
Jun 28, 1993.
Henry Avila, pro se., James R. Allison, Interim U.S. Atty., Joseph T. Urbaniak, Jr. and John M. Hutchins, Asst. U.S. Attys., Moúntain States Drug Task Force, Denver, CO, for plaintiff-appel-lee.
Tacha, Baldock, Kelly.
Cited by 37 opinions | Published
PER CURIAM.
Mr. Avila appeals from the district court’s order denying his motion for sentencing range reduction. See 28 U.S.C. § 2255; 18 U.S.C. § 3582(c)(2). We affirm.
The Sentencing Guidelines now permit a three-level downward adjustment for acceptance of responsibility in certain circum[*768] stances. See U.S.S.G. § 3E1.1(b) (Nov. 1, 1992) & app. C, amend. 459 (eff. Nov. 1, 1992). Mr. Avila contends that, under the rule of lenity and 18 U.S.C. § 3582(c)(2), the district court should reduce his sentence one level, because at the time he was sentenced, only a two-level downward adjustment was in effect.
Section 3582(c)(2) empowers a district court to reduce a term of imprisonment when a sentencing range has subsequently been lowered by the Sentencing Commission. However, such power is tethered to the factors contained in § 3553(a), including any pertinent policy statement of the Sentencing Commission. 18 U.S.C. § 3553(a)(5). The policy statements accompanying U.S.S.G. § 1B1.10 provide that if an amendment is not listed as covered, a reduction in sentence based on the amendment would not be consistent with the policy statement. U.S.S.G. § 1B1.10(a), p.s. Amendment 459, on which Mr. Avila relies, is not covered by the policy statement. See U.S.S.G. § 1B1.10(d), p.s. Thus, the amendment to § 3E1.1 cannot be applied retroactively and it may not serve as a basis on which to reduce his sentence. See United States v. Rodriguez, 989 F.2d 583, 587 (2d Cir.1993).
AFFIRMED.