12-2710-cr
United States v. Ortiz
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of May, two thousand thirteen.
5
6 PRESENT: RICHARD C. WESLEY,
7 SUSAN L. CARNEY,
8 J. CLIFFORD WALLACE,*
9 Circuit Judges.
10
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 12-2710-cr
18
19 RICHARD ORTIZ,
20
21 Defendant-Appellant.
22
23
24 FOR APPELLANT: YUANCHUNG LEE, Federal Defenders of New
25 York, Inc. Appeals Bureau, New York, NY.
26
27 FOR APPELLEE: ROBERT T. POLEMENI, Assistant United
28 States Attorney (David C. James,
29 Assistant United States Attorney, on the
30 brief), for Loretta E. Lynch, United
*
Judge J. Clifford Wallace of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
1 States Attorney for the Eastern District
2 of New York, Brooklyn, NY.
3
4 Appeal from the United States District Court for the
5 Eastern District of New York (Cogan, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the judgment of the United States District
9 Court for the Eastern District of New York is AFFIRMED.
10 Defendant-Appellant Richard Ortiz appeals from a
11 judgment by the United States District Court for the Eastern
12 District of New York (Cogan, J.) imposing a sentence of 30
13 months’ imprisonment and three years’ supervised release for
14 Ortiz’s escape from a halfway house in violation of 18
15 U.S.C. § 751(a). The district court calculated a sentencing
16 guidelines range of 30-37 months after agreeing with the
17 government that a five-level enhancement was warranted under
18 U.S.S.G. § 2P1.1(b)(1) for Ortiz’s use of force in the
19 course of his escape. We assume the parties’ familiarity
20 with the underlying facts, the procedural history, and the
21 issues presented for review.
22 “We review the district court’s interpretations of the
23 Sentencing Guidelines de novo and its related findings of
24 fact for clear error.” United States v. Cain, 671 F.3d 271,
25 301 (2d Cir. 2012). In 2007, Ortiz was sentenced to 62
26 months’ imprisonment in connection with being a felon in
2
1 possession of a firearm in violation of 18 U.S.C.
2 § 922(g)(1). Ortiz was serving the final three months of
3 his sentence at a halfway house when it was discovered that
4 he presented a non-human urine sample during a drug test.
5 When United States Marshals arrived at the halfway house to
6 collect Ortiz and return him to the custody of the Bureau of
7 Prisons, Ortiz panicked and ran, pushing through two halfway
8 house staff members in the process. The district court
9 determined that Ortiz intentionally pushed the staff members
10 out of his way with reckless disregard for their safety. On
11 this basis, the district court granted a five-level
12 enhancement pursuant to U.S.S.G. § 2P1.1(b)(1) because “the
13 use . . . of force against any person was involved” in
14 Ortiz’s escape.
15 Ortiz argues that the district court erred by
16 increasing his offense level pursuant to U.S.S.G.
17 § 2P1.1(b)(1) because Ortiz only recklessly, rather than
18 intentionally, used force against two halfway house staff
19 members when he fled the premises. We agree with the
20 district court that Ortiz’s use of force was intentional and
21 that his mental state with respect to its consequences is
22 irrelevant. “[A] person would ‘use . . . physical force
23 against’ another when pushing him.” Leocal v. Ashcroft, 543
3
1 U.S. 1, 9 (2004). Because U.S.S.G. § 2P1.1(b)(1) does not
2 mandate any particular degree of intent with regard to the
3 results of a person’s use of force, Ortiz’s actions
4 satisfied the provision by virtue of the court’s finding
5 that he intentionally ran into two staff members and pushed
6 them out of his way.
7 For the foregoing reasons, the judgment of the district
8
9 court is hereby AFFIRMED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
4