United States v. Rivera, Lissett ( 2005 )

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
June 28, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Nos. 02-3238 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v.
No. 98 CR 923
LISSETT RIVERA, Blanche M. Manning, Judge.
Defendant-Appellant.
Order
The court’s opinion of June 16, 2005, is amended on page 4. The last paragraph of
the opinion shall be replaced with the following language:
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 (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).