United States v. Rodriguez , 595 F. App'x 83 ( 2015 )

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
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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 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