United States v. Lissett Rivera, 411 F.3d 864 (7th Cir. 2005). · Go Syfert
United States v. Lissett Rivera, 411 F.3d 864 (7th Cir. 2005). Cases Citing This Book View Copy Cite
66 citation events (66 in the last 25 years) across 7 distinct courts.
Strongest positive: United States v. Morgan (ca10, 2015-11-06) · Strongest negative: United States v. LaQuan Carter (ca8, 2007-03-23)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 43 distinct citers. How cited ↗
discussed Cited "but see" United States v. LaQuan Carter
8th Cir. · 2007 · signal: but see · confidence high
But see United States v. Rivera, 411 F.3d 864, 867 (7th Cir.) (refusing to correct sentence that was below the statutory mandatory minimum because "[b]y deciding not to take a cross-appeal, the United States has ensured that [the defendant's] sentence cannot be increased”), cert. denied, - U.S. -, 126 S.Ct. 493 , 163 L.Ed.2d 373 (2005). 6 .We also note the district court erred in concluding that, without a jury finding (citing United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005)), it could not make a finding with respect to whether Greenlaw possessed a firearm in co…
discussed Cited "but see" United States v. Laquan Dwayne Carter, Also Known as \Quan
unknown court · 2007 · signal: but see · confidence high
But see United States v. Rivera, 411 F.3d 864, 867 (7th Cir.) (refusing to correct sentence that was below the statutory mandatory minimum because "[b]y deciding not to take a cross-appeal, the United States has ensured that [the defendant's] sentence cannot be increased"), cert. denied, ___ U.S. ___, 126 S.Ct. 493 , 163 L.Ed.2d 373 (2005). 6 We also note the district court erred in concluding that, without a jury finding (citing United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005)), it could not make a finding with respect to whether Greenlaw possessed a firearm in c…
examined Cited as authority (verbatim quote) United States v. Morgan (6×) also: Cited as authority (rule), Cited "see"
10th Cir. · 2015 · quote attribution · 1 verbatim quote · confidence high
it is both unnecessary and inappropriate for the judge to reexamine, and resolve in the defendant's favor, a factual issue that the jury has resolved in the prosecutor's favor beyond a reasonable doubt.
examined Cited as authority (verbatim quote) United States v. Sean Eric Slaton
11th Cir. · 2015 · quote attribution · 1 verbatim quote · confidence high
it is both unnecessary and inappropriate for the judge to reexamine, and resolve in the defendant's favor, a factual issue that the jury has resolved in the prosecutor's favor beyond a reasonable doubt.
discussed Cited as authority (verbatim quote) United States v. Bertling (2×) also: Cited "see, e.g."
8th Cir. · 2010 · signal: see also · quote attribution · 1 verbatim quote · confidence high
an argument based on booker is hard to maintain when the cornerstone of the defendant's position is that the jury's actual verdict counts for nothing.
examined Cited as authority (verbatim quote) United States v. Bernard Douglas (2×) also: Cited as authority (rule)
7th Cir. · 2009 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
booker does not confer on district judges any discretion to give sentences below statutory floors. any error the district judge may have made in resolving factual disputes in order to apply the guide- lines was harmless.
examined Cited as authority (verbatim quote) United States v. Douglas (2×) also: Cited as authority (rule)
7th Cir. · 2009 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
booker does not confer on district judges any discretion to give sentences below statutory floors. any error the district judge may have made in resolving factual disputes in order to apply the guidelines was harmless.
discussed Cited as authority (rule) Lin v. Drummond (2×) also: Cited "see"
N.D. Ind. · 2024 · confidence medium
Here, the non-verbal harassment of which the Plaintiff complains “could just as readily have been perpetrated upon a white person without any alteration in its character or purpose.” Beamon, 411 F.3d at 864.
discussed Cited as authority (rule) United States v. Carolyn Jackson (2×)
3rd Cir. · 2017 · confidence medium
We agree with the government that the District Court in this case effectively “substitut[ed] its view of the evidence . . . for the jury’s verdict.” United States v. Bertling, 611 F.3d 477, 481 (8th Cir. 2004) (citing United States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005)).
discussed Cited as authority (rule) United States v. Sean Eric Slaton
11th Cir. · 2015 · confidence medium
See United States v. Mateos, 623 F.3d 1350, 1369 (11th Cir.2010) (opinion of O’Connor, J.) (stating that the district court in sentencing might “have abused its discretion if it had given [the exculpatory results of a polygraph exam] any weight at all, insofar as they contradicted the jury’s verdict” on an element of the charged healthcare fraud); United States v. Bertling, 611 F.3d 477, 481 (8th Cir.2010) (“[A] district court errs as a matter of law if it imposes a sentence based on a finding that contradicts the jury’s verdict.”) (alteration and quotation marks omitted); United…
cited Cited as authority (rule) United States v. Robert Maday
7th Cir. · 2015 · confidence medium
See Greenlaw v. United States, 554 U.S. 237, 243-54 , 128 S.Ct. 2559 , 171 L.Ed.2d 399 (2008); United States v. Rivera, 411 F.3d 864, 867 (7th Cir.2005).
discussed Cited as authority (rule) United States v. Keith L. Walker
7th Cir. · 2013 · confidence medium
In other words, “the foreseeability analysis employed in the Guidelines context is also applicable in the statutory context.” United States v. Young, 997 F.2d 1204, 1210 (7th Cir.1993), superseded on separate grounds, United States v. Rivera, 411 F.3d 864, 866 (7th Cir.2005).
discussed Cited as authority (rule) United States v. Alfredo Herrera
7th Cir. · 2011 · confidence medium
That is because drug quantity, for purposes of determining a minimum penalty under § 841(b), is a question for the sentencing court using a preponderance standard, Harris v. United States, 536 U.S. 545, 557 (2002); United States v. Araujo, 622 F.3d 854, 861 (7th Cir. 2010), and the court is not bound by a jury’s lower assessment, United States v. Young, 609 F.3d 348, 356 (4th Cir. 2010); United States v. Webb, 545 F.3d 673, 677 (8th Cir. 2008); United States v. Florez, 447 F.3d 145, 156 (2d Cir. 2006) United States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005).
discussed Cited as authority (rule) United States v. Juan Rodriguez-Moreno
7th Cir. · 2011 · confidence medium
That is because drug quantity, for purposes of determining a minimum penalty under § 841(b), is a question for the sentencing court using a preponderance standard, Harris v. United States, 536 U.S. 545, 557 (2002); United States v. Araujo, 622 F.3d 854, 861 (7th Cir. 2010), and the court is not bound by a jury’s lower assessment, United States v. Young, 609 F.3d 348, 356 (4th Cir. 2010); United States v. Webb, 545 F.3d 673, 677 (8th Cir. 2008); United States v. Florez, 447 F.3d 145, 156 (2d Cir. 2006) United States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005).
discussed Cited as authority (rule) United States v. Herrera
7th Cir. · 2011 · confidence medium
That is because drug quantity, for purposes of determining a minimum penalty under § 841(b), is a question for the sentencing court using a preponderance standard, Harris v. United States, 536 U.S. 545, 557 , 122 S.Ct. 2406 , 153 L.Ed.2d 524 (2002); United States v. Araujo, 622 F.3d 854, 861 (7th Cir.2010), and the court is not bound by a jury’s lower assessment, United States v. Young, 609 F.3d 348, 356 (4th Cir.2010); United States v. Webb, 545 F.3d 673, 677 (8th Cir.2008); United States v. Florez, 447 F.3d 145, 156 (2d Cir.2006) United States v. Rivera, 411 F.3d 864, 866 (7th Cir.2005).
discussed Cited as authority (rule) United States v. Orlando Hill
7th Cir. · 2008 · confidence medium
The district court may sentence a defendant below the statutory minimum only in two circumstances, United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006); United States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005), and as counsel recognizes, neither exception applies to Hill’s case.
discussed Cited as authority (rule) United States v. Hill
7th Cir. · 2008 · confidence medium
The district court may sentence a defendant below the statutory minimum only in two circumstances, United States v. Cooper, 461 F.3d 850, 856 (7th Cir .2006); United States v. Rivera, 411 F.3d 864, 866 (7th Cir.2005), and as counsel recognizes, neither exception applies to Hill’s case.
discussed Cited as authority (rule) United States v. Fuller, William (2×) also: Cited "see"
7th Cir. · 2008 · confidence medium
In light of the special verdict, it would have been “both unnecessary and inappropriate for the judge to reexamine, and resolve in the defendant’s favor, a factual issue that the jury has resolved in the prosecutor’s favor beyond a reasonable doubt.” See United States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005).
discussed Cited as authority (rule) United States v. Fuller (2×) also: Cited "see"
7th Cir. · 2008 · confidence medium
In light of the special verdict, it would have been “both unnecessary and inappropriate for the judge to reexamine, and resolve in the defendant’s favor, a factual issue that the jury has resolved in the prosecutor’s favor beyond a reasonable doubt.” See United States v. Rivera, 411 F.3d 864, 866 (7th Cir.2005).
cited Cited as authority (rule) United States v. Collins, Orand L.
7th Cir. · 2008 · confidence medium
United States v. Rivera, 411 F.3d 864, 866 (7th Cir.2005).
discussed Cited as authority (rule) United States v. Haines
3rd Cir. · 2007 · confidence medium
United States v. Rivera, 411 F.3d 864, 866 (7th Cir.) (stating that “Booker does not confer on district judges any discretion to give sentences below statutory floors”), cert. denied, 546 U.S. 966 , 126 S.Ct. 493 , 163 L.Ed.2d 373 (2005).
discussed Cited as authority (rule) United States v. Goldman, James L.
7th Cir. · 2007 · confidence medium
See El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479-82 , 119 S.Ct. 1430 , 143 L.Ed.2d 635 (1999); United States v. Rivera, 411 F.3d 864, 867 (7th Cir.2005).) II Goldman argues on appeal that the district court erred by relying on unsupported expert testimony when it calculated the drug weight.
cited Cited as authority (rule) United States v. Triliegi, Peter
7th Cir. · 2006 · confidence medium
See Melendez v. United States, 518 U.S. 120, 125-26 , 116 S.Ct. 2057 , 135 L.Ed.2d 427 (1996); United States v. Rivera, 411 F.3d 864, 866 (7th Cir.2005).
discussed Cited as authority (rule) United States v. Tommy E. Jones
7th Cir. · 2006 · confidence medium
In dicta, we suggested that it may have been proper to request a lesser-included-offense instruction, “so that the jury could determine whether Rivera’s objectives were less ambitious, and her knowledge less extensive, than her confederates (who, the judge found, actually distributed more than 150 kilograms or cocaine).” Id. at 866-67 (emphasis added).
discussed Cited as authority (rule) United States v. Jones, Tommy
7th Cir. · 2006 · confidence medium
In dicta, we suggested that it may have been proper to request a lesser-included-offense instruction, “so that the jury could determine whether Rivera’s objectives were less ambitious, and her knowledge less extensive, than her confederates (who, the judge found, No. 05-1489 13 actually distributed more than 150 kilograms or cocaine).” Id. at 866-67 (emphasis added).
discussed Cited as authority (rule) United States v. Auzio Hewlett, Cross-Appellee, and Alfred Gary (2×)
7th Cir. · 2006 · confidence medium
(For other illustrations of Booker’ s irrelevance to legal rules, see, e.g., United States v. Miller, 450 F.3d 270 (7th Cir.2006) (ratio of crack to powder cocaine); Uni ted States v. Duncan, 413 F.3d 680, 683 (7th Cir.2005) (recidivist sentences); United States v. Rivera, 411 F.3d 864, 866-67 (7th Cir.2005) (mandatory minimum sentences); United States v. Lee, 399 F.3d 864, 866 (7th Cir.2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.2005).) Hewlett’s current conviction is for a serious drug offense, so he should have been sentenced to life in prison or something “near” …
discussed Cited as authority (rule) United States v. Hewlett, Auzio
7th Cir. · 2006 · confidence medium
(For other illustrations of Booker’s irrelevance to legal rules, see, e.g., United States v. Miller, No. 05-2978 (7th Cir. June 7, 2006) (ratio of crack to powder cocaine); United States v. Duncan, 413 F.3d 680, 683 (7th Cir. 2005) (recidivist sentences); United States v. Rivera, 411 F.3d 864, 866-67 (7th Cir. 2005) (mandatory minimum sentences); United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005); McReynolds v. United States, 397 F.3d Nos. 05-2532, 05-2571 & 05-2853 9 479, 481 (7th Cir. 2005).) Hewlett’s current conviction is for a serious drug offense, so he should have been sentence…
discussed Cited as authority (rule) United States v. Taryll Miller
7th Cir. · 2006 · confidence medium
See also, e.g., United States v. Duncan, 413 F.3d 680, 683 (7th Cir.2005); United States v. Rivera, 411 F.3d 864, 866-67 (7th Cir.2005); United States v. Lee, 399 F.3d 864, 866 (7th Cir.2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.2005).
discussed Cited as authority (rule) United States v. Miller, Taryll
7th Cir. · 2006 · confidence medium
See also, e.g., United States 8 No. 05-2978 v. Duncan, 413 F.3d 680, 683 (7th Cir. 2005); United States v. Rivera, 411 F.3d 864, 866-67 (7th Cir. 2005); United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005).
discussed Cited as authority (rule) United States v. Boscarino, Nick S.
7th Cir. · 2006 · confidence medium
See, e.g., United States v. Duncan, 413 F.3d 680, 683 (7th Cir. 2005); United States v. Rivera, 411 F.3d 864, 866-67 (7th Cir. 2005); United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005).
discussed Cited as authority (rule) United States v. Nick S. Boscarino
7th Cir. · 2006 · confidence medium
See, e.g., United States v. Duncan, 413 F.3d 680, 683 (7th Cir.2005); United States v. Rivera, 411 F.3d 864, 866-67 (7th Cir.2005); United States v. Lee, 399 F.3d 864, 866 (7th Cir.2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.2005).
discussed Cited as authority (rule) United States v. Cannon, Thomas L.
7th Cir. · 2005 · confidence medium
See, e.g., United States v. Duncan, 413 F.3d 680, 683 (7th Cir. 2005); United States v. Rivera, 411 F.3d 864, 866-67 (7th Cir. 2005); United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005).
discussed Cited as authority (rule) United States v. Thomas L. Cannon, Cross-Appellee
7th Cir. · 2005 · confidence medium
See, e.g., United States v. Duncan, 413 F.3d 680, 683 (7th Cir.2005); United States v. Rivera, 411 F.3d 864, 866-67 (7th Cir.2005); United States v. Lee, 399 F.3d 864, 866 (7th Cir.2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.2005).
discussed Cited as authority (rule) United States v. Jones, Andre
7th Cir. · 2005 · confidence medium
See Duncan, 2005 WL 1540249, at *2 (“nothing in Booker . . . suggests that the Court reconsidered, much less overruled, its holding in Harris”); Wilson v. United States, No. 03-3398, 2005 WL 1661264, at *2 (7th Cir. July 18, 2005); United States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005) (judges may continue to find facts that set a statutory minimum sentence “even after Apprendi”) (citing Harris, 536 U.S. 545 (2002)).
discussed Cited as authority (rule) United States v. Andre Jones
7th Cir. · 2005 · confidence medium
See Duncan, 413 F.3d 680, 683 , 2005 WL 1540249, at *2 (“nothing in Booker ... suggests that the Court reconsidered, much less overruled, its holding in Harris ”); Wilson v. United States, 414 F.3d 829, 831 , 2005 WL 1661264, at *2 (7th Cir. July 18, 2005); United States v. Rivera, 411 F.3d 864, 866 (7th Cir.2005) (judges may continue to find facts that set a statutory minimum sentence “even after Apprendi”) (citing Harris, 536 U.S. 545 , 122 S.Ct. 2406 , 153 L.Ed.2d 524 (2002)).
cited Cited "see" United States v. Velleff, Randy D.
7th Cir. · 2008 · signal: see · confidence high
See United States v. Rivera, 411 F.3d 864 (7th Cir.2005).
discussed Cited "see" United States v. Royal, Quintus
7th Cir. · 2007 · signal: see · confidence high
See United States v. Rivera, 411 F.3d 864, 866 (7th Cir.2005) ("Once the jury has spoken, its verdict controls unless the evidence is insufficient or some procedural error occurred; it is both unnecessary and inappropriate for the judge to reexamine, and resolve in the defendant’s favor, a factual issue that the jury has resolved in the prosecutor’s favor beyond a reasonable doubt.").
cited Cited "see" United States v. Cooper, Cortez D.
7th Cir. · 2006 · signal: see · confidence high
See United States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005).
cited Cited "see" United States v. Cortez Cooper
7th Cir. · 2006 · signal: see · confidence high
See United States v. Rivera, 411 F.3d 864, 866 (7th Cir.2005).
cited Cited "see" United States v. Wade
3rd Cir. · 2006 · signal: see · confidence high
See United States v. Rivera, 411 F.3d 864, 866 (7th Cir.2005).
cited Cited "see" United States v. Sanders, Tyler
7th Cir. · 2005 · signal: see · confidence high
See United States v. Rivera, 411 F.3d 864, 866 (7th Cir.2005); United States v. Garrett, 189 F.3d 610, 612 (7th Cir.1999).
cited Cited "see" United States v. Spain, Patrick
7th Cir. · 2005 · signal: see · confidence high
See United States v. Rivera, 411 F.3d 864, 866-67 (7th Cir.2005); United States v. Duncan, 413 F.3d 680, 684 (7th Cir.2005).
discussed Cited "see, e.g." United States v. Honea (2×)
8th Cir. · 2011 · signal: see also · confidence medium
See also United States v. Rivera, 411 F.3d 864, 866 (7th Cir.2005) ("Once the jury has spoken, its verdict controls unless the evidence is insufficient or some procedural error occurred; it is both unnecessary and inappropriate for the judge to reexamine, and resolve in the defendant's favor, a factual issue that the jury has resolved in the prosecutor's favor beyond a reasonable doubt.").
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Lissett RIVERA, Defendant-Appellant
02-3238.
Court of Appeals for the Seventh Circuit.
Jun 16, 2005.
411 F.3d 864
2005 U.S. App. LEXIS 11426
2005 WL 1404570
Julie Peters Pekron (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee., Steven Shobat (argued), Chicago, IL, for Defendanb-Appellant.
Easterbrook, Rovner, Wood.
Cited by 49 opinions  |  Published
2 passages pin-cited by 9 cases
Pinpoint authority: #7,670 of 633,719
Citer courts: Seventh Circuit (5) · N.D. Illinois (3) · N.D. Indiana (1)
EASTERBROOK, Circuit Judge.

In an unpublished order issued today, we affirm the convictions of Lissett Rivera and her co-defendants, who according to the jury’s verdict conspired to distribute more than five kilograms of crack cocaine. 21 U.S.C. § 846. This opinion addresses Rivera’s objections to her sentence.

A first offender who conspires to distribute more than five kilograms of cocaine “shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life”. 21 U.S.C. § 841 (b)(1) (A.) (ii). Rivera has no prior convictions for drug offenses or violent felonies, and given the jury’s conclusion that she conspired to distribute more than five kilograms of cocaine the statute calls for a minimum sentence of 10 years’ imprisonment. Yet the district judge sentenced her to 97 months, and she contends that even this is too high because the judge should not have found that she is accountable for her confederates’ use of[*866] weapons, and should have concluded that she is a minor participant. Adjustments for possessing weapons, or role in the offense, matter to the Guidelines’ sentencing range but do not affect statutory minimum sentences. A sentence below the statutory minimum is proper if the accused substantially assists the prosecution, see 18 U.S.C. § 3553(e), or qualifies for the “safety valve” in § 3553(f), but neither exception applies.

Because the district judge treated the Guidelines range rather than the statutory minimum as the effective legal constraint, Rivera insists that the court violated her right under the sixth amendment to have the jury determine all factors that affect the minimum sentence to which she is exposed. See United States v. Booker, —U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Accordingly she seeks a remand under United States v. Paladino, 401 F.3d 471, 481-85 (7th Cir.2005)— though, her counsel informed us after oral argument, not a full remand, which, for reasons now to be explained, could lead to a higher sentence. See also United States v. Goldberg, 406 F.3d 891 (7th Cir.2005).

An argument based on Booker is hard to maintain when the cornerstone of the defendant’s position is that the jury’s actual verdict counts for nothing. The jury’s verdict by itself establishes that Rivera is accountable for five kilograms and thus must serve the statutory minimum sentence. Findings that may lead to a higher sentence remain the judge’s responsibility, but the minimum has been taken out of the judge’s hands.

When deciding to disregard the jury’s finding, the district judge relied on United States v. Young, 997 F.2d 1204, 1209-10 (7th Cir.1993), which holds that the drug quantity that is material to the minimum sentence in a conspiracy case is the amount for which the defendant is substantively accountable under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) — which is to say, all criminal acts within the scope of the conspiracy and foreseeable to the accused. Young’s principle is unexceptionable and applies whenever the judge must make findings that set a statutory minimum sentence, something that judges may continue to do even after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). But Young does not hold that judges may disregard the jury’s own conclusion that some fact has been established. Once the jury has spoken, its verdict controls unless the evidence is insufficient or some procedural error occurred; it is both unnecessary and inappropriate for the judge to reexamine, and resolve- in the defendant’s favor, a factual issue that the jury has resolved in the prosecutor’s favor beyond a reasonable doubt.

When Young was decided, this court thought that all disputes about drug type and quantity, to the extent they affected the sentence, were to be resolved by the judge rather than the jury. See United States v. Edwards, 105 F.3d 1179 (7th Cir.1997), affirmed, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998). Apprendi and its successors, such as Booker, establish a new allocation of tasks between judge and jury. So although Young’s conclusions about the legal significance of particular facts remains sound, its assumption that judges necessarily resolve factual disputes about drug quantities has been superseded.

The jury found that Rivera conspired to distribute more than five kilograms of cocaine, and she does not maintain that the evidence is insufficient to support that verdict. She would have been free to argue at trial, that, even if she joined with the other defendants in a drug-distribution[*867] venture, the goal (as she understood it) was to distribute some lower amount; that might have led the prosecutor to request a lesser-included-offense instruction, so that the jury could determine whether Rivera’s objectives were less ambitious, and her knowledge less extensive, than her confederates (who, the judge found, actually distributed more than 150 kilograms of cocaine). We need not speculate, however, on what could or might have happened. What did happen at trial fixes Rivera’s minimum penalty at 120 months’ imprisonment.

By deciding not to take a cross-appeal, the United States has ensured that Rivera’s sentence- cannot be increased. See El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479-82, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999). (Earlier decisions, such as United States v. Schmeltzer, 960 F.2d 405, 408-09 (5th Cir.1992), holding that a court of appeals may increase a defendant’s sentence whether or not the prosecutor filed a notice of appeal, do not survive Neztsosie.) But the lack of a cross-appeal does not entitle Rivera to another shot at a sentence below 97 months, if the only lawful outcome on remand would be application of the statutory minimum. It is accordingly unnecessary for us to consider whether Rivera’s sentencing range under the Guidelines was calculated correctly; she cannot benefit from resentencing. Nor is a remand under Paladino appropriate, for Booker does not confer on district judges any discretion to give sentences below statutory floors. Any error the district judge may have made in resolving factual disputes in order to apply the Guidelines was harmless. Cf. United States v. Lee, 399 F.3d 864 (7th Cir.2005).

AFFIRMED.