Opinion
Nos. 09-1500, 09-1525, 09-1875, 09-2431.
October 6, 2010.
Appeals from the United States District Court for the Western District of Wisconsin, No. 08-CR-105, Barbara B. Crabb, Judge.
ORDER
On consideration of the petition for panel rehearing filed by Plaintiff-Appellee on September 29, 2010, the opinion issued in the above-entitled case on September 15, 2010, is hereby AMENDED as follows:
Page 5, lines 11-15, 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 Pineda-Buenaventura'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 Pineda-Buenaventura 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 4-7, the following citation is deleted: " See, e.g., United States v. Salem, 597 F.3d 877, 887-88 (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.