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

                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 1st day of August, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                AMAYLA L. KEARSE,
 9                JOSEPH M. McLAUGHLIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITES STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               10-1910-cr
17
18       HECTOR VIDAL YEPES-CASAS,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -
21
22       FOR APPELLANT:                        JESSE M. SIEGEL, New York, NY.
23
24       FOR APPELLEE:                         BONNIE S. KLAPPER (Peter A.
25                                             Norling, on the brief), for
26                                             Loretta E. Lynch, United States
27                                             Attorney, Eastern District of
28                                             New York, Brooklyn, NY.

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 1
 2        Appeal from a judgment of the United States District
 3   Court for the Eastern District of New York (Cogan, J.).
 4
 5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 6   AND DECREED that the judgment of the district court be
 7   VACATED AND REMANDED.
 8
 9        Defendant Hector Yidal Yepes-Casas (“Yepes”) appeals
10   from a judgment of the United States District Court for the
11   Eastern District of New York (Cogan, J.), sentencing him to
12   35 years in prison following his guilty plea. We assume the
13   parties’ familiarity with the underlying facts, the
14   procedural history, and the issues presented for review.
15
16   [1] Yepes pled guilty to a sixteen-count second superseding
17   indictment on April 16, 2009. As a result of an apparent
18   oversight by the district court, the government, and defense
19   counsel, he was sentenced on the basis of an eighteen-count
20   fourth superseding indictment. Both parties agree that
21   Yepes’s conviction must be vacated as to Counts Sixteen and
22   Seventeen, which did not appear in the indictment to which
23   Yepes pled guilty. Yepes did not acknowledge involvement in
24   any narcotics trafficking in March 2007, the subject of
25   Counts Sixteen and Seventeen. Since as to any given count
26   Yepes could not be convicted except upon his plea of guilty
27   or a determination of his guilt by the trier of fact after
28   trial, his conviction on Counts Sixteen and Seventeen must
29   be vacated.
30
31   [2] The government acknowledges the error, but maintains
32   that re-sentencing is not required because the additional
33   charges “can hardly be said to have been material to the
34   sentencing decision.” However, this Circuit’s recent
35   precedent is unequivocal: any “conviction error” requires a
36   de novo re-sentencing. See United States v. Rigas, 583 F.3d
37   108, 117 (2d Cir. 2009) (emphasis omitted). Accordingly,
38   Yepes must be re-sentenced de novo, which requires the
39   district court to consider, as to each count of conviction,
40   whether the vacated conviction changes how the remaining
41   counts were sentenced, and the effect on the aggregate
42   sentence:
43
44       [A] district court that is required to resentence de
45       novo must reconsider the sentences imposed on each
46       count, as well as the aggregate sentence. In such
47       circumstances, the court should determine whether the

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




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