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United States v. Henry Avila

UNITED STATES of America, Plaintiff-Appellee, v. Henry AVILA, Defendant-Appellant

United States v. Avila, 997 F.2d 767 (10th Cir. 1993)
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Court
Court of Appeals for the Tenth Circuit · U.S. Courts of Appeals
Decided
June 28, 1993
Docket
No. 93-1063
Judges
Tacha, Baldock, Kelly
Citations
997 F.2d 7671993 WL 2277051993 U.S. App. LEXIS 15523

Opinion — Per Curiam

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.

How later courts describe this case

Explanatory parentheticals written by citing courts — 2 in all; the most informative distinct ones are shown.

Cited by 33 cases

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1993: 101994: 21995: 11996: 31997: 31999: 12002: 22003: 42008: 12010: 12016: 12017: 32026: 119932026peak 1993 · 10

Relies on it most ⓘ

  1. United States v. Dorrough84 F.3d 1309 (10th Cir. 1996)
  2. United States v. Ivy83 F.3d 1266 (10th Cir. 1996)
  3. Harold A. Ebbole v. United States8 F.3d 530 (7th Cir. 1993)
  4. United States v. Huckley Armstrong, A.K.A. Shorty347 F.3d 905 (11th Cir. 2003)
  5. United States v. Torres-Aquino334 F.3d 939 (10th Cir. 2003)
  6. United States v. David Henry Dullen15 F.3d 68 (6th Cir. 1994)

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  1. United States v. MackNo. 26-6062 (10th Cir. July 27, 2026)
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  3. United States v. Garcia690 F. App'x 622 (10th Cir. 2017)
  4. United States v. RamseyNo. 16-6268 (10th Cir. Feb. 8, 2017)
  5. United States v. Sandoval-Flores665 F. App'x 655 (10th Cir. 2016)
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Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
United States v. Rodriguez, 989 F.2d 583 (2d Cir. 1993) 35

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