United States v. Ortiz

08-2648-cr
U.S. v. Ortiz

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2008

Heard: January 27, 2009 Decided: September 1, 2010
Docket No. 08-2648-cr

- - - - - - - - - - - - - - -
UNITED STATES OF AMERICA,
Appellee,

v.

ERIC ORTIZ,
Defendant-Appellant.
- - - - - - - - - - - - - - -

Before: NEWMAN and POOLER,* Circuit Judges, and
RAKOFF,** District Judge.

Appeal from the May 27, 2008, judgment of the United States

District Court for the Eastern District of New York (Dora L. Irizarry,

District Judge), sentencing the Defendant to imprisonment for 120

months for firearms and narcotics offenses. The Defendant primarily

contends that his non-Guidelines sentence violates the Ex Post Facto

*
Honorable Sonia Sotomayor, originally a member of the panel, was

elevated to the Supreme Court on August 8, 2009. The Clerk has

designated, by random selection, the Honorable Rosemary S. Pooler to

replace her. See Local Rule 0.14(2).
**
Honorable Jed S. Rakoff, of the United States District Court for

the Southern District of New York, sitting by designation.
Clause because an enhancement, used to calculate his Guidelines

sentencing range, was increased after the date of his offenses. The

Defendant’s sentencing range under the unamended Guidelines would have

been 151 to 188 months; under the amended Guidelines the range would

have been 168 to 210 months. However, the District Court imposed a

non-Guidelines sentence of 120 months.

Affirmed.

Zachary Margulis-Ohnuma, New York, N.Y.,
for Defendant-Appellant.

Jacqueline L. Spratt, Asst. U.S. Atty.,
Brooklyn, N.Y. (Benton J. Campbell,
U.S. Atty., Susan Corkery, Asst. U.S.
Atty., Brooklyn, N.Y., on the brief),
for Appellee.

JON O. NEWMAN, Circuit Judge.

This appeal primarily presents the issue of whether, and under

what circumstances, a more onerous guideline, issued by the United

States Sentencing Commission after the date of an offense, renders a

sentence imposed under the advisory Guidelines regime in violation of

the Ex Post Facto Clause. The issue arises on an appeal by Defendant-

Appellant Eric Ortiz from the May 27, 2008, judgment of the District

Court for the Eastern District of New York (Dora L. Irizarry, District

Judge). We conclude that such a sentence can violate the Clause, but

that the Clause was not violated in the circumstances of this case.

We therefore affirm.

-2-
 Background

A search of the Defendant’s residence in Brooklyn, New York,

uncovered five guns, ammunition, heroin, and cocaine. The Defendant

pled guilty to being a felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g)(1), and possession of narcotics with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1).

At sentencing, the District Court agreed with the pre-sentence

report that two of the Defendant’s prior felony convictions were

crimes of violence: an assault conviction in Rhode Island in 2000 and

an attempted third-degree burglary conviction in New York in 2006.

Applying the 2006 Guidelines in effect at the time of sentencing,1 the

Court used these two prior convictions to set the base offense level

for the firearms offense at 24, see U.S.S.G. § 2K2.1(a)(2), instead of

level 20, which would have applied if the Defendant had had only one

prior conviction for a crime of violence, see id. § 2K2.1(a)(4)(A).

The Court then made two adjustments, adding two levels for possession

of three to seven firearms, see id. § 2K2.1(b)(1)(A), and, pertinent

1
Courts must use the Guidelines manual in effect on the date of

sentencing unless they determine that such use would violate the Ex

Post Facto Clause, in which case they must use the manual in effect on

the date that the offense was committed. See U.S.S.G. § 1B1.11(b)(1);

see also 18 U.S.C. § 3553(a)(4)(ii) (instructing courts to use the

Guidelines in effect on the date of sentencing).

-3-
to this appeal, adding four levels because the serial number of one of

the firearms had been obliterated, see id. § 2K2.1(b)(4). The

Sentencing Commission had increased the adjustment for an obliterated

serial number from two levels to four levels on November 1, 2006, see

id. App. C, amend. 691, after the date of the Defendant’s offenses.

These two adjustments would have brought the adjusted offense level to

30, but the Guidelines cap at 29 the increased offense level that may

result from the (b)(1) and (b)(4) adjustments. See id. § 2K2.1(b)

(text following (b)(4)).

The Court then increased the capped offense level of 29 by four

levels for possessing a firearm in connection with another felony

offense (the narcotics offense), see id. § 2K2.1(b)(6), and subtracted

three levels for acceptance of responsibility, see id. § 3E1.1(b).

The resulting adjusted offense level of 30 in Criminal History

Category VI yielded a sentencing range of 168 to 210 months.2 The

Court imposed a non-Guidelines sentence of 120 months, 48 months below

the bottom of the applicable range.

The Defendant contended in the District Court that the New York

2
The narcotics offense did not require any change in the adjusted

offense level because, under the multi-count provisions, that offense

had been treated as a specific offense characteristic in determining

the offense level for the firearms offense and had therefore been

grouped with the firearms offense. See U.S.S.G. § 3D1.2(c).

-4-
attempted burglary conviction was not a crime of violence and that the

obliterated serial number enhancement should not apply because the

Defendant was not aware that the number had been obliterated. No

objection was made to the fact that this enhancement was increased

from two to four levels after the date of the Defendant’s offenses.

Discussion

Recognizing that he has received a non-Guidelines sentence, Ortiz

nevertheless contends that his sentence is unlawful because the

Guidelines calculation, which the District Court made as the first

step in the sentencing process, was incorrect. Because a district

court “should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range,” Gall v. United States,

552 U.S. 38, 49 (2007) (emphasis added), we review the correctness of

that calculation even if a non-Guidelines sentence is imposed, see id.

at 51 (appellate court “must first ensure that the district court

committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range”); United

States v. Carr, 557 F.3d 93, 103 (2d Cir. 2009) (same). The Defendant

challenges the calculation on three grounds: (1) his conviction for

attempted burglary in the third degree under New York Penal Law §

140.20 was not a crime of violence, (2) the enhancement for an

obliterated serial number was improper because he did not know of the

obliteration, and (3) even if the enhancement was applicable, the use

-5-
of the amended enhancement violated the Ex Post Facto Clause.

1. Attempted Burglary Conviction as a Crime of Violence

The Appellant’s challenge to the enhancement for a crime of

violence is without merit. We have ruled that third-degree burglary

under New York law is a “crime of violence” for purposes of a firearms

offense enhancement under U.S.S.G. § 4B1.2(a)(2), see United States v.

Brown, 514 F.3d 256, 268-69 (2d Cir. 2008), and have also ruled that

the enhancement applies to attempted third-degree burglary, see United

States v. Hurell, 555 F.3d 122, 124 (2d Cir. 2009).

2. Obliterated Serial Number Enhancement

The Appellant’s challenge to the enhancement for an obliterated

serial number is also unavailing. He contends that the enhancement

requires scienter, but we have previously ruled that the enhancement

applies “regardless of whether the defendant knew or had reason to

believe that the firearm . . . had an . . . obliterated serial

number,” U.S.S.G. § 2K2.1, comment. (n.8(B)). See Brown, 514 F.3d at

269.

3. Ex Post Facto Challenge to Use of the Amended Guideline

The Appellant contends that use of the amended guideline for an

obliterated serial number is barred by the Ex Post Facto Clause

because the amendment was adopted after the date of his offense. The

Defendant’s sentencing range under the unamended Guidelines would have

been 151 to 188 months; under the amended Guidelines the range would

-6-
have been 168 to 210 months. However, the District Court imposed a

non-Guidelines sentence of 120 months.

A preliminary issue is the standard of review. At oral argument

the Government contended that plain-error review applies because the

Defendant did not make an Ex Post Facto Clause argument in the

District Court. The Defendant responded that the Government has

forfeited insistence on the strict standard of plain-error review

because the Government did not urge that standard in its appellate

brief.

We have found no decision explicitly considering this “sauce for

the goose” argument in the context of a sentencing appeal. In other

contexts, however, the argument has prevailed. In Gronowski v.

Spencer, 424 F.3d 285 (2d Cir. 2005), after a verdict and judgment for

the plaintiff, the defendants unsuccessfully moved for judgment n.o.v.

under Rule 50(b) of the Federal Rules of Civil Procedure. On appeal,

the defendants sought reversal on the ground that their compliance

with a civil service law precluded the plaintiff’s claim under 42

U.S.C. § 1983. See id. at 297. The plaintiff contended that the

defendants had waived that defense by failing to raise it in their

Rule 50(a) motion for a directed verdict at the close of the

plaintiff’s case, although it had been raised in their Rule 50(b)

motion. See id. We ruled that the plaintiff had waived her waiver

argument by failing to assert it in her opposition to the defendants’

-7-
Rule 50(b) motion. See id. See also Atkins v. N. Y. City, 143 F.3d

100, 103 (2d Cir. 1998) (by not objecting in district court, appellees

waived their argument that appellant waived his objection to the jury

verdict by not objecting to jury charge or to inconsistent verdicts);

Gibeau v. Nellis, 18 F.3d 107, 109 (2d Cir. 1994) (by not objecting in

district court, appellees waived their argument that appellants had

waived their right to judgment n.o.v. by not moving for directed

verdict); cf. Kone v. Holder, 596 F.3d 141, 147 n.4 (2d Cir. 2010)

(Government waived objection to appellant’s failure to exhaust issue

on appeal to Board of Immigration Appeals).

These waive-the-waiver (more accurately, forfeit the forfeiture)

rulings suggest that the same approach should apply in the sentencing

context, especially in view of the relaxed standard of plain-error

review that we have sometimes found applicable for unpreserved

sentencing errors because a resentencing is not nearly as burdensome

as a retrial. See, e.g., United States v. Gamez, 577 F.3d 394, 397 (2d

Cir. 2009); United States v. Williams, 399 F.3d 450, 456-57 (2d Cir.

2005); United States v. Simmons, 343 F.3d 72, 80 (2d Cir. 2003). We

need not rule definitively on the standard of review, however, because

even if the alleged claim of error is available for appellate review,

we reject it on the merits, as we now explain.

Whether application of a guideline amended after the date of an

offense violates the Ex Post Facto Clause under the advisory

-8-
Guidelines regime, as it did when the Sentencing Guidelines were

mandatory, see Miller v. Florida, 482 U.S. 423, 432-36 (1987), has

divided the courts of appeals.3 In United States v. Demaree, 459 F.3d

791 (7th Cir. 2007), the Seventh Circuit ruled that the Clause was not

violated because the applicable guideline, used to make the initial

Guidelines calculation, only “nudges” the sentencing judge toward the

sentencing range, but the judge’s “freedom to impose a reasonable

sentence outside the range is unfettered.” Id. at 795. See also

United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006). Other

3
Our decision in United States v. Kilkenny, 493 F.3d 122, 130 (2d

Cir. 2007), remanding for resentencing because of an enhanced

guideline, contained no discussion of the effect of the advisory

Guidelines regime on challenges under the Ex Post Facto Clause, and “a

sub silentio holding is not binding precedent,” Getty Petroleum Corp.

v. Bartco Petroleum Corp., 858 F.2d 103, 113 (2d Cir. 1988) (internal

quotation marks omitted). Our recent decision in United States v.

Kumar, No. 06-5482, slip op at __ n.12 (2d Cir. Aug. 12, 2010), which

concerned application of the so-called one-book rule, see U.S.S.G.

§ 1B1.11(b)(3), assumed that the Ex Post Facto Clause applied to the

advisory Guidelines regime in view of the Government’s explicit

disclaimer of reliance on the contrary position of the District Court

in Kumar. The issue thus remains open in this Circuit.

-9-
circuits, in holdings or dicta, have stated that an amended guideline

enhancing punishment can violate the Ex Post Facto Clause even under

the advisory Guidelines regime. See United States v. Duane, 533 F.3d

441, 446 & n.1 (6th Cir. 2008); United States v. Thompson, 518 F.3d

832, 870 (10th Cir. 2008); United States v. Carter, 490 F.3d 641, 643

(8th Cir. 2007); United States v. Rodarte-Vasquez, 488 F.3d 316, 322-

24 (5th Cir. 2007); United States v. Wood, 486 F.3d 781, 790-91 (3d

Cir. 2007).

The D.C. Circuit has also upheld an Ex Post Facto Clause

challenge to a non-Guidelines sentence that was thought to have been

influenced by a post-offense increase in the Guidelines sentencing

range, but adopted a more nuanced approach to the issue. In United

States v. Turner, 548 F.3d 1094 (D.C. Cir. 2008), the D.C. Circuit

held that a 33-month sentence, even though imposed under the advisory

Guidelines regime, violated the Clause where the sentencing judge

sentenced at the bottom of a guideline range that had been increased,

after the offense, from 21-27 months to 33-41 months. See id. at 1100.

The Court explained that, had the sentencing judge looked to the

unamended guideline range, “it is likely that [the defendant’s]

sentence would have been less than 33 months.” Id. The Court’s

rationale, however, does not apply to every sentence imposed after

calculation of a guideline range that has been increased after the

date of the offense. As the Court further explained, “[the defendant]

-10-
did not have to show definitively that he would have received a lesser

sentence had the district court used the [unamended] Guidelines. It

is enough that using the [amended] Guidelines created a substantial

risk that [the defendant’s] sentence was more severe, thus resulting

in a violation of the Ex Post Facto Clause.” Id. (citation omitted).

The risk was deemed substantial in Turner’s case because of the

likelihood that the judge whose non-Guidelines sentence was at the

bottom of the amended sentencing range would have given a non-

Guidelines sentence below that range had a lower sentencing range been

calculated based on the unamended guideline. The judge would not

necessarily have sentenced at the bottom of the unamended range, but

there was at least a substantial risk that the sentence would have

been below the bottom of the amended range.

We think the “substantial risk” standard adopted by the D.C.

Circuit appropriately implements the Ex Post Facto Clause in the

context of sentencing under the advisory Guidelines regime, and is

faithful to Supreme Court jurisprudence explaining that the Clause

protects against a post-offense change that “create[s] a significant

risk of increas[ing] [the] punishment,” Garner v. Jones, 529 U.S. 244,

255 (2000). This standard does not invalidate every sentence imposed

after a Guidelines range has been increased after the date of the

offense, but, unlike the approach of the Seventh Circuit, which

-11-
rejects an Ex Post Facto challenge to any non-Guidelines sentence,4 it

recognizes that there may be circumstances where an amended Guidelines

range can influence a sentence that violates the Ex Post Facto Clause.

In the pending appeal, however, the D.C. Circuit’s “substantial

risk” standard does not benefit Ortiz. His adjusted offense level

under the unamended Guidelines would have been 29, yielding a

sentencing range, in Criminal History Category VI, of 151 to 188

months. Under the amended Guidelines, his adjusted offense level was

30, yielding a sentencing range of 168 to 210 months.5 The non-

4
Writing for the Seventh Circuit, Judge Posner gave examples of

governmental actions that created some slight risk of increased

punishments that would not violate the Ex Post Facto Clause. These

were a joint congressional resolution urging heavier sentences for

white-collar criminals, a statute requiring victim impact statements

for all offenses, appropriating more money for prisons to lessen

overcrowding as a reason for short sentences, or appointing judges

pledged to give severe sentences. See Demaree, 459 F.3d at 794.

“[T]he effect on the values animating the ex post facto clause,” he

noted, “would be attenuated . . . .” Id. As Turner illustrates, the

effect of an enhanced guideline on the risk of increased punishment

can, in some circumstances, be so much less attenuated as to encounter

a valid Ex Post Facto challenge.
5
Although the amended guideline raised the adjustment for an

-12-
Guidelines sentence imposed was 120 months, 48 months below the bottom

of the applicable sentencing range. We conclude that there is no

substantial risk, indeed, no risk at all, that the sentencing judge,

having made such a generous deviation from the amended Guidelines

range, would have imposed a non-Guidelines sentence of less than 120

months had the bottom of the applicable sentencing range been 151

months, as it was before the Guidelines amendment, rather than 168

months.

Conclusion

The judgment of the District Court is affirmed.

obliterated serial number by two levels, the effect for Ortiz was an

increase in the adjusted offense level of only one level because of

the capping effect of U.S.S.G. § 2K2.1(b) (text following (b)(4)).

-13-