10-1910-cr United States v. Yepes-Casas



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 1 st** **day of August, two thousand twelve.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **AMAYLA L. KEARSE,** 8 **JOSEPH M. McLAUGHLIN,** 9 **Circuit Judges**

**.** 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **UNITES STATES OF AMERICA,** 13 **Appellee ,**  14 15 **-v.- 10-1910-cr** 16 17 **HECTOR VIDAL YEPES-CASAS,** 18 **Defendant-Appellant**

**.** 19

- - - - - - - - - - - - - - - - - - - - 20 21 **FOR APPELLANT:** JESSE M. SIEGEL, New York, NY. 22 23 **FOR APPELLEE:** BONNIE S. KLAPPER (Peter A. 24 Norling, on the brief ), for 25 Loretta E. Lynch, United States 26 Attorney, Eastern District of 27 New York, Brooklyn, NY. 28

11 Appeal from a judgment of the United States District 2 Court for the Eastern District of New York (Cogan, J. ). 3 4 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 5 **AND DECREED**that the judgment of the district court be 6 **VACATED AND REMANDED**

. 7 8 Defendant Hector Yidal Yepes-Casas (“Yepes”) appeals 9 from a judgment of the United States District Court for the 10 Eastern District of New York (Cogan, J. ), sentencing him to 11 35 years in prison following his guilty plea. We assume the 12 parties’ familiarity with the underlying facts, the 13 procedural history, and the issues presented for review. 14 15 **[1]** Yepes pled guilty to a sixteen-count second superseding 16 indictment on April 16, 2009. As a result of an apparent 17 oversight by the district court, the government, and defense 18 counsel, he was sentenced on the basis of an eighteen-count 19 fourth superseding indictment. Both parties agree that 20 Yepes’s conviction must be vacated as to Counts Sixteen and 21 Seventeen, which did not appear in the indictment to which 22 Yepes pled guilty. Yepes did not acknowledge involvement in 23 any narcotics trafficking in March 2007, the subject of 24 Counts Sixteen and Seventeen. Since as to any given count 25 Yepes could not be convicted except upon his plea of guilty 26 or a determination of his guilt by the trier of fact after 27 trial, his conviction on Counts Sixteen and Seventeen must 28 be vacated. 29 30 **[2]** The government acknowledges the error, but maintains 31 that re-sentencing is not required because the additional 32 charges “can hardly be said to have been material to the 33 sentencing decision.” However, this Circuit’s recent 34 precedent is unequivocal: any “conviction error” requires a 35 de novore-sentencing. SeeUnited States v. Rigas , 583 F.3d 36 108, 117 (2d Cir. 2009) (emphasis omitted). Accordingly, 37 Yepes must be re-sentenced de novo , which requires the 38 district court to consider, as to each count of conviction, 39 whether the vacated conviction changes how the remaining 40 counts were sentenced, and the effect on the aggregate 41 sentence: 42 43 [A] district court that is required to resentence de 44

novo must reconsider the sentences imposed on each 45 count, as well as the aggregate sentence. In such 46 circumstances, the court should determine whether the 47

2“change[]” in the “constellation of offenses of 1 conviction” has “altered” the “factual mosaic related 2 to those offenses.” [United States v. Quintieri , 306 3 F.3d 1217, 1227-28 (2d Cir. 2002)]. If so, the court 4 must reconsider the sentence imposed on the count or 5 counts affected by the vacatur of the conviction of 6 another count, as well as on the aggregate sentence, in 7 light of the sentencing factors in § 3553(a). If the 8 court determines that the “factual mosaic” related to a 9 count of conviction has not been altered, no further 10 proceeding as to that count is necessary, except to the 11 extent it affects the aggregate sentence. 12 13 Rigas , 583 F.3d at 118-19. 14 15 **[3]** Because we vacate Yepes’s conviction and sentence on 16 other grounds, we do not now address his contention that the 17 sentence is substantively unreasonable. 18 19 For the foregoing reasons, we hereby **VACATE** Counts 20 Sixteen and Seventeen of the conviction, **VACATE** the sentence 21 imposed, and remand for re-sentencing on the remaining 22 counts. 23 24 25 FOR THE COURT: 26 CATHERINE O’HAGAN WOLFE, CLERK 27 28 29

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