10-1910-cr
United States v. Yepes-Casas
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 1st day of August, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 AMAYLA L. KEARSE,
9 JOSEPH M. McLAUGHLIN,
10 Circuit Judges.
11
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13 UNITES STATES OF AMERICA,
14 Appellee,
15
16 -v.- 10-1910-cr
17
18 HECTOR VIDAL YEPES-CASAS,
19 Defendant-Appellant.
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21
22 FOR APPELLANT: JESSE M. SIEGEL, New York, NY.
23
24 FOR APPELLEE: BONNIE S. KLAPPER (Peter A.
25 Norling, on the brief), for
26 Loretta E. Lynch, United States
27 Attorney, Eastern District of
28 New York, Brooklyn, NY.
1
1
2 Appeal from a judgment of the United States District
3 Court for the Eastern District of New York (Cogan, J.).
4
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
6 AND DECREED that the judgment of the district court be
7 VACATED AND REMANDED.
8
9 Defendant Hector Yidal Yepes-Casas (“Yepes”) appeals
10 from a judgment of the United States District Court for the
11 Eastern District of New York (Cogan, J.), sentencing him to
12 35 years in prison following his guilty plea. We assume the
13 parties’ familiarity with the underlying facts, the
14 procedural history, and the issues presented for review.
15
16 [1] Yepes pled guilty to a sixteen-count second superseding
17 indictment on April 16, 2009. As a result of an apparent
18 oversight by the district court, the government, and defense
19 counsel, he was sentenced on the basis of an eighteen-count
20 fourth superseding indictment. Both parties agree that
21 Yepes’s conviction must be vacated as to Counts Sixteen and
22 Seventeen, which did not appear in the indictment to which
23 Yepes pled guilty. Yepes did not acknowledge involvement in
24 any narcotics trafficking in March 2007, the subject of
25 Counts Sixteen and Seventeen. Since as to any given count
26 Yepes could not be convicted except upon his plea of guilty
27 or a determination of his guilt by the trier of fact after
28 trial, his conviction on Counts Sixteen and Seventeen must
29 be vacated.
30
31 [2] The government acknowledges the error, but maintains
32 that re-sentencing is not required because the additional
33 charges “can hardly be said to have been material to the
34 sentencing decision.” However, this Circuit’s recent
35 precedent is unequivocal: any “conviction error” requires a
36 de novo re-sentencing. See United States v. Rigas, 583 F.3d
37 108, 117 (2d Cir. 2009) (emphasis omitted). Accordingly,
38 Yepes must be re-sentenced de novo, which requires the
39 district court to consider, as to each count of conviction,
40 whether the vacated conviction changes how the remaining
41 counts were sentenced, and the effect on the aggregate
42 sentence:
43
44 [A] district court that is required to resentence de
45 novo must reconsider the sentences imposed on each
46 count, as well as the aggregate sentence. In such
47 circumstances, the court should determine whether the
2
1 “change[]” in the “constellation of offenses of
2 conviction” has “altered” the “factual mosaic related
3 to those offenses.” [United States v. Quintieri, 306
4 F.3d 1217, 1227-28 (2d Cir. 2002)]. If so, the court
5 must reconsider the sentence imposed on the count or
6 counts affected by the vacatur of the conviction of
7 another count, as well as on the aggregate sentence, in
8 light of the sentencing factors in § 3553(a). If the
9 court determines that the “factual mosaic” related to a
10 count of conviction has not been altered, no further
11 proceeding as to that count is necessary, except to the
12 extent it affects the aggregate sentence.
13
14 Rigas, 583 F.3d at 118-19.
15
16 [3] Because we vacate Yepes’s conviction and sentence on
17 other grounds, we do not now address his contention that the
18 sentence is substantively unreasonable.
19
20 For the foregoing reasons, we hereby VACATE Counts
21 Sixteen and Seventeen of the conviction, VACATE the sentence
22 imposed, and remand for re-sentencing on the remaining
23 counts.
24
25
26 FOR THE COURT:
27 CATHERINE O’HAGAN WOLFE, CLERK
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29
3