13-4273-cr

United States v. Lesane

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 for the Second Circuit, held at the

2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

3 7 day of October, two thousand and fourteen. th

4

5 PRESENT:

6 DEBRA ANN LIVINGSTON,

7 BARRINGTON D. PARKER,

8 Circuit Judges,

9 MICHAEL P. SHEA,

*

10 District Judge.

11 _______________________________________________

12

13 UNITED STATES OF AMERICA, 

14

15 Appellee,

16 - v. - No. 13-4273-cr

17

18 ERIC LESANE,

19 Defendant-Appellant.

20 _______________________________________________

21 JESSICA R. LONERGAN (Michael A. Levy, on the brief),

22 Assistant United States Attorney, for Preet Bharara, United

23 States Attorney for the Southern District of New York, New

24 York, NY, for Appellee.

1 The Honorable Michael P. Shea, of the United States District Court for the District of

*

2 Connecticut, sitting by designation.

1
1 LAURIE S. HERSHEY, Manhasset, NY, for Defendant2 Appellant.

3

4 UPONDUE CONSIDERATION, it is herebyORDERED,ADJUDGED, andDECREED

5 that the judgment of the district court is AFFIRMED.

6 Defendant-Appellant Eric Lesane appeals from a judgment of conviction entered November

7 1, 2013 in the United States District Court for the Southern District of New York (Gardephe, J.),

8 following Lesane’s guilty plea. Lesane pled guilty to one count of being a felon in possession of a

9 firearm with a defaced serial number, in violation of 18 U.S.C. §§ 922(g)(1) and (k). He was

10 subsequently sentenced principally to 94 months’ imprisonment, to be followed by three years’

11 supervised release, and now challenges that sentence on appeal, arguing that the district court

12 improperly treated Lesane’s Youthful Offender Adjudications under New York law as adult

13 convictions. We assume the parties’ familiarity with the underlying facts and procedural history of

14 the case.

15 Whether a sentence “did not result from an ‘adult conviction,’ and was thus improperly

16 included in the District Court's calculation” under the Sentencing Guidelines is “a pure question of

17 law,” which we review de novo. United States v. Driskell, 277 F.3d 150, 154 (2d Cir. 2002). 

18 Lesane's only claim on appeal is that the district court incorrectly treated two New York convictions

19 that were subsequently vacated and replaced with “Youthful Offender Adjudications” under New

20 York Criminal Procedure Law § 720.20 as prior adult convictions for the purpose of calculating his

21 base offense level under United States Sentencing Guidelines (“U.S.S.G.”) § 2K2.1(a)(2) and his

22 criminal history points under U.S.S.G. § 4A1.2(d)(1). We have previously held that a Youthful

23 Offender Adjudication must be treated as an adult conviction within the meaning of §§ 2K2.1(a)(2)

24 and 4A1.2(d)(1) if the defendant “although under age eighteen was tried in an adult court, convicted

2
1 as an adult, and received and served a sentence exceeding one year and one month in an adult

2 prison.” Driskell, 277 F.3d at 154 (interpreting § 4A1.2(d)(1)); United States v. Cuello, 357 F.3d

3 162, 167 (2d Cir. 2004) (applying Driskell standard to § 2K2.1(a)(2)). In this case, the district court

4 properly undertook the analysis outlined in Driskell and Cuello, and concluded that Lesane’s

5 Youthful Offender Adjudications should be treated as adult convictions because he “was prosecuted

6 in Bronx County Supreme Court, which is an adult forum. He was convicted of felonies. He

7 received sentences amounting to felony time, and he served those sentences in the New York State

8 Department of Corrections adult facility.” J.A. 80.

9 Lesane concedes that the district court was required by Driskell and Cuello to perform such

10 an analysis, and does not argue that the court’s analysis was flawed. Neither does he attempt to

11 distinguish his case from Cuello or Driskell. His sole contention is that “Cuello and Driskell failed

12 to give appropriate deference to New York law and to the intent of the Guidelines and should,

13 respectfully, be overruled.” Appellant’s Br. 13-14. “In general, a panel of this Court is bound by

14 the decisions of prior panels until such time as they are overruled 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 Cir. 2014) (quoting In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010)) (internal quotation marks

17 omitted). The Guidelines commentary to which Lesane alludes and the proper amount of deference

18 to give to New York’s classification of youthful offenders were both considered by the Cuello and

19 Driskell panels, and Lesane identifies no reason for disturbing those conclusions beyond his own

20 disagreement with their outcome. See Driskell, 277 F.3d at 155-56 (concluding that the intent of

21 New York law is best served bytreating Youthful Offender Adjudications as adult convictions rather

22 than juvenile adjudications); Cuello, 357 F.3d at 165 (quoting U.S.S.G. § 2K2.1, cmt. n.5). And his

23 argument based on 18 U.S.C. § 921(a)(20) – which defines “crime punishable by imprisonment for

3
1 a term exceeding one year” for the purpose of various federal firearms provisions – is inapposite,

2 particularly since this Court has flatly stated in an analogous youthful offender sentencing case that

3 “we do not find [§ 921(a)(20)] to be persuasive for interpreting the Guidelines or appropriate 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 Offender Adjudication may be treated as a “crime punishable by

6 imprisonment for a term exceeding one year” qualifying for sentencing enhancement under the

7 Armed Career Criminal Act, 18 U.S.C. § 924(e)). Cuello and Driskell are part of a well-settled body

8 of Second Circuit sentencing law that permits New York Youthful Offender Adjudications to be

9 considered by courts applying the Sentencing Guidelines. See, e.g., United States v. Reinoso, 350

10 F.3d 51, 54 (2d Cir. 2003) (holding that New York Youthful Offender Adjudications may be

11 considered in calculating the base offense level under U.S.S.G. § 2L1.2); United States v. Jones, 415

12 F.3d 256, 263-64 (2d Cir. 2005) (holding that New York Youthful Offender Adjudications may be

13 considered for purposes of the Career Offender Guideline, U.S.S.G. § 4B1.2, cmt. n.1). We decline

14 Lesane’s invitation to depart from these established precedents.

15 * * *

16 We have reviewed Appellant’s remaining arguments and find them to be without merit. For

17 the foregoing reasons, the judgment of the district court is AFFIRMED. 

18 FOR THE COURT:

19 Catherine O’Hagan Wolfe, Clerk

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