United States v. Rodriguez ( 2015 )


Menu:
  •      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,
    4       on the 2nd day of March, two thousand fifteen.
    5
    6       PRESENT: DENNIS JACOBS,
    7                RICHARD C. WESLEY,
    8                SUSAN L. CARNEY,
    9                              Circuit Judges.
    10
    11       - - - - - - - - - - - - - - - - - - - -X
    12       UNITED STATES OF AMERICA,
    13                Appellee,
    14
    15                    -v.-                                               13-3798
    16
    17       OMAR RODRIGUEZ,
    18                Defendant-Appellant.
    19       - - - - - - - - - - - - - - - - - - - -X
    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 cross-
    28   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
    

Document Info

Docket Number: 13-3798

Judges: Jacobs, Wesley, Carney

Filed Date: 3/2/2015

Precedential Status: Non-Precedential

Modified Date: 3/2/2024