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

New York, on the 1st 4 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