USA v. Teodulo Pineda-Buenaventura

Filing 3

Opinion

United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604 October 6, 2010 Before DANIEL A. MANION, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge JOHN W. DARRAH, District Judge* Nos. 091500, 091525, 091875, & 092431 Appeals from the United States District Court for the Western District of Wisconsin. No. 08CR105 Barbara B. Crabb, Judge.

UNITED STATES OF AMERICA, PlaintiffAppellee, v. T E O D U L O P I N E D A B U E N A V E N T U R A , O T O N I E L MENDOZA, GERARDO PINEDA SORIA, and ARTURO PINEDA LOPEZ, DefendantsAppellants.

O R D E R On consideration of the petition for panel rehearing filed by PlaintiffAppellee on September 29, 2010, the opinion issued in the aboveentitled case on September 15, 2010, is hereby AMENDED as follows:

The Honorable John W. Darrah, United States District Court Judge for the Northern District of Illinois, Eastern Division, sitting by designation.

*

Nos. 091500, 091525, 091875, 092431

Page 2

Page 5, lines 1115, the following sentence is deleted: "Under this standard of review, we affirm a sentence unless, after considering all the evidence, we have a "definite and firm conviction that a mistake has been committed." United States v. Haynes, 582 F.3d 686, 709 (7th Cir. 2009) (quotation omitted)."; Page 5, line 21, the following sentence is added to the end of the paragraph: "This constitutes plain error that affected PinedaBuenaventura's substantial rights and seriously affected the fairness of the proceedings. See United States v. Garrett, 528 F.3d 525, 527 (7th Cir. 2008)."; Page 6, line 31, the following sentence is added to the end of the paragraph: "This was plain error that seriously affected the integrity of the proceedings, because PinedaBuenaventura was sentenced based on an incorrect Guideline range. See Farmer, 543 F.3d at 375; see also United States v. Avila, 557 F.3d 809, 822 (7th Cir. 2010) ("It appears that the district court simply applied the wrong range, which constitutes plain error.")."; Page 7, lines 47, the following citation is deleted: "See, e.g., United States v. Salem, 597 F.3d 877, 88788 (7th Cir. 2010) (remanding for resentencing when findings were insufficient to support sentence imposed)" and is replaced with "See, e.g., Garrett, 528 F.3d at 530 (finding plain error and remanding to district court when "we have no reason to believe its error in the application of the Guideline range did not affect its selection of the particular sentence.")."; and Page 7, line 14, the following citation is deleted: "See id. at 888" and is replaced with "See United States v. Salem, 597 F.3d 877, 888 (7th Cir. 2010)" All members of the original panel have otherwise voted to DENY the petition for rehearing. Accordingly, the petition for rehearing is DENIED.