13-3798 UNITED STATES V. RODRIGUEZ



### 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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 2 nd** **day of March, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **RICHARD C. WESLEY,** 7 **SUSAN L. CARNEY,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 13-3798** 15 16 **OMAR RODRIGUEZ,** 17 **Defendant-Appellant**

**.** 18 - - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** PETER J. TOMAO, Garden City, New 21 York. 22 23 **FOR APPELLEE:** MICHAEL P. DRESCHER (with 24 Eugenia A.P. Cowles, Gregory L. 25 Waples on the brief ) for 26 Tristram J. Coffin, United 27

1States Attorney for the District 1 of Vermont, Burlington, Vermont. 2 3 Appeal from a judgment of the United States District 4 Court for the District of Vermont (Murtha, J. ). 5 6 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 7 **AND DECREED**that the case is **REMANDED**for further findings 8 of fact pursuant to procedures set forth in United States v. 9 Jacobson , 15 F.3d 19, 21-22 (2d Cir. 1994). 10 11 Omar Rodriguez appeals from the judgment of the United 12 States District Court for the District of Vermont (Murtha, 13 J. ), sentencing him after a guilty plea to 262 months’ 14 imprisonment and three years’ supervised release

. We assume 15 the parties’ familiarity with the underlying facts, the 16 procedural history, and the issues presented for review. 17 18 After Rodriguez pled guilty to kidnapping, the district 19 court calculated the U.S. Sentencing Guidelines (“USSG”) 20 advisory range based on an enhanced sentencing scheme, which 21 applies “if another offense was committed during the 22 kidnapping.” USSG § 2A4.1(b)(7). The district court found 23 as an “other offense” attempted murder. The court therefore 24 increased the base offense level by cross-referencing the 25 Guideline for attempted murder. See id. § 2A2.1. On 26 appeal, Rodriguez challenges the district court’s cross27 reference to the attempted murder Guideline. 28 29 The federal offense of attempted murder can be 30 committed only with “a specific intent to kill.” United 31 States v. Kwong , 14 F.3d 189, 194 (2d Cir. 1994); see 18 32 U.S.C. § 1113. The record below includes no express 33 findings regarding Rodriguez’s intent. In view of the 34 specific facts and issues presented by this appeal, our 35 review would be assisted by factual findings on the question 36 whether Rodriguez had the requisite intent. 37 38 We **REMAND**to the district court to supplement its 39 factual findings by a preponderance of the evidence. See 40 Jacobson , 15 F.3d at 21-22. Specifically, the district 41 court should make findings as to whether Rodriguez had the 42 intent necessary to commit the offense of attempted murder, 43

see Kwong , 14 F.3d at 194; cf. United States v. Atehortva
, 44 69 F.3d 679, 687 (2d Cir. 1995), and necessary to properly 45 apply the cross-reference, see USSG § 2A2.1(a); cf. United 46 States v. Mock , 523 F.3d 1299, 1303-04 (11th Cir. 2008). 47

2The mandate shall issue forthwith. Upon the conclusion 1 of the renewed district court proceedings, either party may 2 restore jurisdiction to this Court by filing with the Clerk 3 of the Court of Appeals, within 30 days, a letter (along 4 with a copy of the relevant supplemental order or 5 transcript) advising the Clerk that jurisdiction should be 6 restored. No new notice of appeal or additional filing fee 7 will be required. In the interest of judicial economy, any 8 renewed appeal will be assigned to this panel. 9 10 11 12 FOR THE COURT: 13 CATHERINE O’HAGAN WOLFE, CLERK 14 15

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