United States v. Ingrel E. Ortega-Gal

POSNER, Circuit Judge.

In this appeal from a 41-month sentence for entering the United States without authorization after having been removed, 8 U.S.C. § 1326(a), we consider whether and when a district judge can reduce a defendant’s sentence upon discovering an error in an earlier conviction of the defendant, a conviction that if left undisturbed would support the higher sentence.

Several of the circuits, relying on Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), have held that the judge may not do that, at least (a potentially critical qualification, as we’ll…