13 -427 3-cr

United Sta tes v. Lesa ne UNITED STAT ES COURT OF AP P EALS F OR THE S ECOND CIRCUIT 

### SUMMARY ORDER Rulings by sum m ary order do not hav e precedentia l eff ect. Cita tion to a sum m ary order filed on or af ter Ja nuary 1, 20 07 , is perm itted and is go verned by Federa l Rule of Appellate Pro cedure 32 .1 and this court ’s Local Rule 32 .1. 1. When citing a sum m ary order in a docum ent filed w ith this court , a part y m ust cite either the Fed e r a l Appendix or an electr onic data base (w ith the nota tion “sum m ary order” ). A part y citing a sum m ary order m ust serve a copy of it on any part y not represented by co unsel. 1 At a stated te rm of the United States Court of A ppeals for the Second Circuit, held at the 2 Thurg ood Marsha ll United States Courthouse, 40 Foley Square, in the City

of Ne w York, on the 3 7 day

of Oc tober, two thousand a nd fourtee n. t h 4 5 PRES ENT: 6 D E B R A A N N L I V I N G S TO N , 7 B A R R I N G TO N D. P A R

K E R , 8 Circuit Judges, 9 M I C H A E L P. S H E A , * 10 District Judge. 11

_______________________________________________ 12 13 U

N I TE D S TA TE S O F A M E R I C A , 14 15 Appellee ,

16 - v. - No. 13-4273-c r 17 18 E R

I C L E S A N E , 19 Defendant- Appellant

. 20

_______________________________________________ 21 J E S S I C A R. L O N E R G A N (Michae l A. L ev y , o n the brief ), 22 Assistant United State s Attorney , for Preet Bha rar a, United 23 States Attorney for the Souther

n District of New York, New 24 York, NY , for Appellee

.

1 The Honora ble Michae l P. Shea, of the United States District Court for the Dist ri ct o f * 2 Connecticut, sitting by desig nation. 11 L A U R IE S. H E R S H E Y , Manhasse t, NY, for Defendant2 Appellant

. 3 4 U P ON D U E C ON SI D ERATION , it is here by ORD ER ED , A D J U D G ED , a

n d D EC R EE D 5 that the judg ment of the district cour t is AF F IRMED
. 6 Def

endant- Appellant Eric L esane appea ls from a judgme nt of conviction enter ed November 7 1, 2013 in the United States District Court for the Southern Dis t ri ct of New York (Ga rdephe , J .), 8 following L esane ’s g uilty plea. L esane pled g uilty to one count of being a felon in posse ssion of a 9 firea

rm with a defa ced serial number, in violation of 18 U.S.C. §§ 922 (g) (1 ) an d (k). He was 10 subsequently sentenc ed principally to 94 months’ imprisonment, to be followed by three y ear s’ 11 supervised re l ease , and now challeng es that sentenc e on appea l, arguing that the district court 12 improperly trea ted L esane ’s Youthful Offe nder Adjudications under New York law as adult 13 convictions. We assume the parties’ familiarity with the underly ing fac ts and proce dural history of 14 the ca se. 15 Whether a sentenc e “did not result from an ‘adult convic t i o n , ’ and was thus improperly 16 included in the District Court's calc ulation” under the Sentencing Guidelines is “a pure question of 17 law,” which we revie w de novo . United States v. Driskel l , 277 F.3d 150, 154 (2d Cir. 2002). 18 L esane ' s only claim on appea l is that the district court incorre ctly trea ted two New York convictions 19 that wer e subsequently vaca ted and repla ced with “Youthful Offende r Ad j udications” under New 20 York Criminal Procedur e L aw § 720.20 as prior adult convictions for the purpose of calc ulating his 21 base offe nse level under United States Sentencing Guidelines (“U .S.S.G.”) § 2K2.1(a )(2) an d his 22 criminal history points under U.S.S.G. § 4A1.2(d)( 1). We have previously held that a Youthful 23 Offe nder Adjudication must be trea ted as an adult conviction within the meaning of §§ 2K2.1(a )(2) 24 and 4A1.2(d)( 1) if the defe ndant “althoug h under ag e eig hteen was tried in an adult court, convicted 21 as an ad u l t , an d received and serve d a sentenc e exceeding one y ear and one month in an adult 2 prison.” Driskell , 277 F.3d at 154 (interpr eting § 4A1.2 (d)( 1)); United St ates v. Cuello , 357 F.3d 3 162, 167 (2d Cir. 2004) (applying Driskell standard to § 2K2.1(a )(2) ). I n this case , the district court 4 proper ly undertook the analy sis outlined in Driskell and Cuello , and co n cluded that L esane ’s 5 Youthful Offe nder Adjudications should be trea ted as adult convictions beca use he “wa s prosec uted 6 in Br onx County Supreme Court, which i s an adult forum. He was convicted of felonies. He 7 rec eived sentenc es amounting to felony time, and he serve d those sentenc es in the New York State 8 Depa

rtment of Corre ctions adult fac ility .” J.A. 80. 9 L esane conce des that the district court was require d by Driskell and Cuello to perf orm such 10 an analy sis, and does not argu e t hat the court’s analy sis was flawe d. Neither does he attempt to 11 distinguish his case from Cuello or Driskell

. His sole contention is that “ Cuello and Driskell failed 12 to g ive appropr iate defe renc e to New York law and to the intent of the Guidel i n es and should, 13 respe ctfully , be overruled.” Appellant’s Br. 13-14. “I n g ener al, a panel of this Court is bound by 14 the decisions of prior panels until such time as they are overr uled either by an en banc panel of our 15 Court or by the Supreme Court.” Lotes Co., Ltd. v. Hon Hai Precision Indus. Co. , 753 F.3d 395, 405 16 (2d C ir. 2014) (quoting In re Zarnel , 619 F.3d 156, 168 (2d C ir. 2010)) (internal quotat i on marks 17 omitted). The Guidelines commentar y to which L esane alludes and the proper amount of defe renc e 18 to g ive to N ew York’s classification of y outhful offe nders wer e both c onsidered by the Cuello and 19 Driskell panels, and L esane identifies no rea son for disturbing those conclu s i o n s bey ond his own 20 disag ree ment with their outcome. See Driskell , 277 F.3d at 15 5 -5 6 (conc luding that the intent of 21 New York law is best serve d by trea ting Youthful Offe nder Adjudications as adult convictions rathe r 22 than juvenile adjudications); Cuello , 357 F.3d at 165 (quoting U.S.S.G. § 2K2.1, cmt. n.5). And his 23 arg ument based on 18 U.S.C. § 921(a) (20) – which define s “cr ime punishable by imprisonment for 31 a term exceeding one y ear ” fo r t h e p u rp o s e of various fede ral firear ms provisions – is inapposite, 2 particula

rly since this Court has flatly stated in an analog ous y outhful offe nder sentenc ing case that 3 “we do not find [§ 921(a) (20 )] t o b e p ersuasive for interpre ting the Guidelines or appropr iate to 4 import

. . . into the Guidelines.” United States v. Parnell , 524 F.3d 166, 170 (2d Cir. 2008) (holding 5 that a New York Youthful Offe nder Adjudication may b e t reated as a “cr ime punishable by 6 imprisonment fo r a t erm exceeding one y ear ” qualifying for sentenc ing enhanc ement under the 7 Armed Caree r Criminal Act, 18 U.S.C. § 924(e) ). Cuello and Driskell are part of a well-settled body 8 o f Second Circuit sentenc ing law that permits New York Youthful Offe nder Adjudications to b e 9 considere d by

courts apply

ing the Sentencing Guidelines. See, e .g. , United States v. Reinoso , 350 10 F.3d 51, 54 (2d Cir. 2003) (holding that New York Youthful Offend er Adjudications may be 11 considere d in calc ulating the base offe nse level under U.S.S.G. § 2L 1.2); United States v. Jones , 415 12 F.3d 256, 263-64 (2d Cir. 2005) (holding that New York Youthful Offe nder Adjudications may be 13 considere d for purposes of the Caree r Offe nder Guideline, U.S.S.G. § 4B1.2, cmt. n.1). We decline 14 L esane ’s invitation to depart fr om these established pr ece dents. 15 * * * 16 We have revie wed Appellant’s rema ining arguments and find them to be without merit. For 17 the fore g oing r easons, the judg ment of the district cour t is AF F IRMED
. 18 FOR THE COURT: 19 Catherine O ’Ha g an Wolfe, Clerk

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