         13-4273-cr
         United States v. Lesane

                                      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 for the Second Circuit, held at the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       7th day of October, two thousand and fourteen.
 4
 5       PRESENT:
 6                   DEBRA ANN LIVINGSTON,
 7                   BARRINGTON D. PARKER,
 8                                Circuit Judges,
 9                   MICHAEL P. SHEA,*
10                                District Judge.
11       _______________________________________________
12
13       UNITED STATES OF AMERICA,
14
15                                         Appellee,


16                        - v. -                                                      No. 13-4273-cr
17
18       ERIC LESANE,

19                               Defendant-Appellant.
20       _______________________________________________

21                                                  JESSICA R. LONERGAN (Michael A. Levy, on the brief),
22                                                  Assistant United States Attorney, for Preet Bharara, United
23                                                  States Attorney for the Southern District of New York, New
24                                                  York, NY, for Appellee.



                 *
1                The Honorable Michael P. Shea, of the United States District Court for the District of
2        Connecticut, sitting by designation.

                                                                1
 1                                         LAURIE S. HERSHEY, Manhasset, NY, for Defendant-
 2                                         Appellant.
 3

 4          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

 5   that the judgment of the district court is AFFIRMED.

 6          Defendant-Appellant Eric Lesane appeals from a judgment of conviction entered November

 7   1, 2013 in the United States District Court for the Southern District of New York (Gardephe, J.),

 8   following Lesane’s guilty plea. Lesane pled guilty to one count of being a felon in possession of a

 9   firearm with a defaced serial number, in violation of 18 U.S.C. §§ 922(g)(1) and (k). He was

10   subsequently sentenced principally to 94 months’ imprisonment, to be followed by three years’

11   supervised release, and now challenges that sentence on appeal, arguing that the district court

12   improperly treated Lesane’s Youthful Offender Adjudications under New York law as adult

13   convictions. We assume the parties’ familiarity with the underlying facts and procedural history of

14   the case.

15          Whether a sentence “did not result from an ‘adult conviction,’ and was thus improperly

16   included in the District Court's calculation” under the Sentencing Guidelines is “a pure question of

17   law,” which we review de novo. United States v. Driskell, 277 F.3d 150, 154 (2d Cir. 2002).

18   Lesane's only claim on appeal is that the district court incorrectly treated two New York convictions

19   that were subsequently vacated and replaced with “Youthful Offender Adjudications” under New

20   York Criminal Procedure Law § 720.20 as prior adult convictions for the purpose of calculating his

21   base offense level under United States Sentencing Guidelines (“U.S.S.G.”) § 2K2.1(a)(2) and his

22   criminal history points under U.S.S.G. § 4A1.2(d)(1). We have previously held that a Youthful

23   Offender Adjudication must be treated as an adult conviction within the meaning of §§ 2K2.1(a)(2)

24   and 4A1.2(d)(1) if the defendant “although under age eighteen was tried in an adult court, convicted

                                                      2
 1   as an adult, and received and served a sentence exceeding one year and one month in an adult

 2   prison.” Driskell, 277 F.3d at 154 (interpreting § 4A1.2(d)(1)); United States v. Cuello, 357 F.3d

 3   162, 167 (2d Cir. 2004) (applying Driskell standard to § 2K2.1(a)(2)). In this case, the district court

 4   properly undertook the analysis outlined in Driskell and Cuello, and concluded that Lesane’s

 5   Youthful Offender Adjudications should be treated as adult convictions because he “was prosecuted

 6   in Bronx County Supreme Court, which is an adult forum. He was convicted of felonies. He

 7   received sentences amounting to felony time, and he served those sentences in the New York State

 8   Department of Corrections adult facility.” J.A. 80.

 9          Lesane concedes that the district court was required by Driskell and Cuello to perform such

10   an analysis, and does not argue that the court’s analysis was flawed. Neither does he attempt to

11   distinguish his case from Cuello or Driskell. His sole contention is that “Cuello and Driskell failed

12   to give appropriate deference to New York law and to the intent of the Guidelines and should,

13   respectfully, be overruled.” Appellant’s Br. 13-14. “In general, a panel of this Court is bound by

14   the decisions of prior panels until such time as they are overruled either by an en banc panel of our

15   Court or by the Supreme Court.” Lotes Co., Ltd. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 405

16   (2d Cir. 2014) (quoting In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010)) (internal quotation marks

17   omitted). The Guidelines commentary to which Lesane alludes and the proper amount of deference

18   to give to New York’s classification of youthful offenders were both considered by the Cuello and

19   Driskell panels, and Lesane identifies no reason for disturbing those conclusions beyond his own

20   disagreement with their outcome. See Driskell, 277 F.3d at 155-56 (concluding that the intent of

21   New York law is best served by treating Youthful Offender Adjudications as adult convictions rather

22   than juvenile adjudications); Cuello, 357 F.3d at 165 (quoting U.S.S.G. § 2K2.1, cmt. n.5). And his

23   argument based on 18 U.S.C. § 921(a)(20) – which defines “crime punishable by imprisonment for

                                                       3
 1   a term exceeding one year” for the purpose of various federal firearms provisions – is inapposite,

 2   particularly since this Court has flatly stated in an analogous youthful offender sentencing case that

 3   “we do not find [§ 921(a)(20)] to be persuasive for interpreting the Guidelines or appropriate to

 4   import . . . into the Guidelines.” United States v. Parnell, 524 F.3d 166, 170 (2d Cir. 2008) (holding

 5   that a New York Youthful Offender Adjudication may be treated as a “crime punishable by

 6   imprisonment for a term exceeding one year” qualifying for sentencing enhancement under the

 7   Armed Career Criminal Act, 18 U.S.C. § 924(e)). Cuello and Driskell are part of a well-settled body

 8   of Second Circuit sentencing law that permits New York Youthful Offender Adjudications to be

 9   considered by courts applying the Sentencing Guidelines. See, e.g., United States v. Reinoso, 350

10   F.3d 51, 54 (2d Cir. 2003) (holding that New York Youthful Offender Adjudications may be

11   considered in calculating the base offense level under U.S.S.G. § 2L1.2); United States v. Jones, 415

12   F.3d 256, 263-64 (2d Cir. 2005) (holding that New York Youthful Offender Adjudications may be

13   considered for purposes of the Career Offender Guideline, U.S.S.G. § 4B1.2, cmt. n.1). We decline

14   Lesane’s invitation to depart from these established precedents.

15                                                  * * *

16          We have reviewed Appellant’s remaining arguments and find them to be without merit. For

17   the foregoing reasons, the judgment of the district court is AFFIRMED.

18                                                         FOR THE COURT:
19                                                         Catherine O’Hagan Wolfe, Clerk




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