13-3798

UNITED STATES V. RODRIGUEZ

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,

on the 2nd 4 day of March, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 RICHARD C. WESLEY,

8 SUSAN L. CARNEY,

9 Circuit Judges.

10

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12 UNITED STATES OF AMERICA, 

13 Appellee,

14

15 -v.- 13-3798

16

17 OMAR RODRIGUEZ, 

18 Defendant-Appellant.

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20

21 FOR APPELLANT: PETER J. TOMAO, Garden City, New

22 York.

23

24 FOR APPELLEE: MICHAEL P. DRESCHER (with

25 Eugenia A.P. Cowles, Gregory L.

26 Waples on the brief) for

27 Tristram J. Coffin, United

1
1 States Attorney for the District

2 of Vermont, Burlington, Vermont.

3

4 Appeal from a judgment of the United States District

5 Court for the District of Vermont (Murtha, J.).

6

7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

8 AND DECREED that the case is REMANDED for further findings

9 of fact pursuant to procedures set forth in United States v.

10 Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994). 

11

12 Omar Rodriguez appeals from the judgment of the United

13 States District Court for the District of Vermont (Murtha,

14 J.), sentencing him after a guilty plea to 262 months’

15 imprisonment and three years’ supervised release. We assume

16 the parties’ familiarity with the underlying facts, the

17 procedural history, and the issues presented for review.

18

19 After Rodriguez pled guilty to kidnapping, the district

20 court calculated the U.S. Sentencing Guidelines (“USSG”)

21 advisory range based on an enhanced sentencing scheme, which

22 applies “if another offense was committed during the

23 kidnapping.” USSG § 2A4.1(b)(7). The district court found

24 as an “other offense” attempted murder. The court therefore

25 increased the base offense level by cross-referencing the

26 Guideline for attempted murder. See id. § 2A2.1. On

27 appeal, Rodriguez challenges the district court’s cross28 reference to the attempted murder Guideline.

29

30 The federal offense of attempted murder can be

31 committed only with “a specific intent to kill.” United

32 States v. Kwong, 14 F.3d 189, 194 (2d Cir. 1994); see 18

33 U.S.C. § 1113. The record below includes no express

34 findings regarding Rodriguez’s intent. In view of the

35 specific facts and issues presented by this appeal, our

36 review would be assisted by factual findings on the question

37 whether Rodriguez had the requisite intent.

38

39 We REMAND to the district court to supplement its

40 factual findings by a preponderance of the evidence. See

41 Jacobson, 15 F.3d at 21-22. Specifically, the district

42 court should make findings as to whether Rodriguez had the

43 intent necessary to commit the offense of attempted murder,

44 see Kwong, 14 F.3d at 194; cf. United States v. Atehortva,

45 69 F.3d 679, 687 (2d Cir. 1995), and necessary to properly

46 apply the cross-reference, see USSG § 2A2.1(a); cf. United

47 States v. Mock, 523 F.3d 1299, 1303-04 (11th Cir. 2008).

2
1 The mandate shall issue forthwith. Upon the conclusion

2 of the renewed district court proceedings, either party may

3 restore jurisdiction to this Court by filing with the Clerk

4 of the Court of Appeals, within 30 days, a letter (along

5 with a copy of the relevant supplemental order or

6 transcript) advising the Clerk that jurisdiction should be

7 restored. No new notice of appeal or additional filing fee

8 will be required. In the interest of judicial economy, any

9 renewed appeal will be assigned to this panel.

10

11

12

13 FOR THE COURT:

14 CATHERINE O’HAGAN WOLFE, CLERK

15

3