     08-1105-cr
     Yauri v. United States

1                         UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3                                 August Term, 2008

4    (Submitted: November 20, 2008                    Decided: March 12, 2009)

5                               Docket No. 08-1105-cr

6                    -------------------------------------

7                             UNITED STATES OF AMERICA,

8                                     Appellee,

9                                      - v. -

10                                 LUIS H. YAURI,

11                              Defendant-Appellant.

12                   -------------------------------------

13   Before:     SACK and WESLEY, Circuit Judges, and KAHN, District
14               Judge.*

15               Appeal from a judgment of the United States District

16   Court for the Eastern District of New York.         The district court

17   (Sterling Johnson, Jr., Judge) sentenced the defendant

18   principally to a 51-month term of incarceration pursuant to his

19   plea of guilty to one count of money laundering.         On appeal, the

20   defendant argues that the assistance of his sentencing counsel

21   was unconstitutionally ineffective because counsel failed to

22   challenge two aspects of the pre-sentence report: (1) its

23   omission of a two-level global plea reduction and (2) its



           *
            The Honorable Lawrence E. Kahn, of the United States
     District Court for the Northern District of New York, sitting by
     designation.
1    calculation of the loss amount.       We agree with the parties that

2    it is appropriate to vacate and remand for resentencing because

3    of the first error.      We direct the district court to consider the

4    second ineffectiveness claim on remand.

5                  Vacated and remanded.

 6                                BENTON J.    CAMPBELL, United States
 7                                Attorney,    Eastern District of New York
 8                                (David C.    James, Bonnie S. Klapper,
 9                                Assistant    United States Attorneys, of
10                                counsel),    Brooklyn, New York, for
11                                Appellee.

12                                GLENN A. OBEDIN, Bassett & Bassett,
13                                P.C., Central Islip, New York, for
14                                Appellant.

15   PER CURIAM:

16                 Luis H. Yauri appeals from a judgment of the United

17   States District Court for the Eastern District of New York

18   (Sterling Johnson, Jr., Judge).       The court entered the judgment

19   of conviction following Yauri's guilty plea to one count of money

20   laundering in violation of 18 U.S.C. § 1956(a)(2)(B)(i).        The

21   court sentenced Yauri principally to a 51-month term of

22   incarceration.      On appeal, Yauri argues that his sentencing

23   counsel's assistance was unconstitutionally ineffective because

24   counsel failed to challenge two aspects of the pre-sentence

25   report: (1) its omission of a two-level global plea reduction and

26   (2) its calculation of the loss amount.        The government concedes

27   that the former omission constituted ineffective assistance.          The

28   parties ask us to vacate and remand the cause to the district

29   court for resentencing.      We will do so.    We also direct the


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1    district court to consider the second ineffectiveness claim on

2    remand.

3                                 BACKGROUND

4                Yauri was the proprietor of a money remitting business

5    that assisted in the structured transfer of drug proceeds from

6    Queens, New York to Colombia between September 2, 2003, and June

7    19, 2006.   In February 2007, Yauri was arrested along with 20

8    other defendants implicated in money laundering.    He was charged

9    with money laundering in violation of 18 U.S.C.

10   § 1956(a)(2)(B)(i).

11               In March 2007, the government extended a "global" plea

12   offer to the defendants, which Yauri accepted.    According to

13   their plea agreement, the "estimate[d] . . . likely adjusted

14   offense level under the Guidelines [was] . . . level 18,"

15   including offense calculations based on a loss amount of "more

16   than $30,000" in laundered funds and a two-level reduction in the

17   event of a "global disposition."**    The estimated offense level

18   corresponds to a range of imprisonment of 27 to 33 months.

19               On June 15, 2007, Yauri pleaded guilty pursuant to the

20   plea agreement before Magistrate Judge Steven M. Gold.    The

21   government acknowledged that the "global disposition" condition

22   specified in the plea agreement had been satisfied.    Loss amount

23   was not discussed during the plea proceedings.



          **
            There was a "global disposition" for purposes of the plea
     agreement if ten or more identified and separately indicted
     defendants pleading guilty on or before May 1, 2007.

                                       3
1              A Pre-Sentence Investigation Report ("PSR") was then

2    prepared by the probation office.      The PSR reflected a

3    calculation of a total offense level of 23.      The difference

4    between that level and the offense level of 18 referred to in the

5    plea agreement resulted from (1) an increase of ten levels for

6    loss amount (rather than six, as in the plea agreement), on the

7    rationale that "[t]he defendant is accountable for the laundering

8    of $154,108"; (2) omission of the two-point global disposition

9    reduction; and (3) a three-point (rather than a two-point)

10   reduction for timely acceptance of responsibility.      According to

11   the PSR calculations, the defendant's criminal history category

12   was II because he committed the instant offense while serving a

13   sentence for a state conviction.       The applicable Guidelines range

14   was 51 to 63 months.

15             On January 8, 2008, a sentencing hearing was held

16   before the district court.   Neither the government's nor the

17   defendant's counsel at the sentencing hearing had attended the

18   plea hearing.   Yauri's sentencing counsel made three arguments:

19   (1) the defendant should be in criminal history category I, not

20   II; (2) the district court should downwardly depart from the

21   applicable Guidelines range in light of the defendant's family

22   circumstances; and (3) the district court should downwardly

23   depart from the applicable Guidelines range in light of various

24   aspects of the offense conduct.    The court rejected those

25   arguments.



                                        4
1               Yauri's counsel failed to challenge the PSR's omission

2    of a two-point reduction for the occurrence of a "global

3    disposition," however.   With respect to loss amount, counsel

4    stated that "[t]he amount of structuring that [Yauri] is guilty

5    of and which he actually pled guilty to is $154,000" -- the

6    amount stated in the PSR -- even though the plea agreement set

7    the amount of laundered funds only at "more than $30,000" and the

8    defendant never allocuted to a specific loss amount.

9               The district court sentenced the defendant to a 51-

10   month term of incarceration, to be followed by a 3-year term of

11   supervised release, and a $100 special assessment.     Yauri

12   appeals.

13                               DISCUSSION

14              Yauri and the government agree that the failure of

15   Yauri's counsel to call the sentencing court's attention to the

16   applicable two-level reduction for "global disposition"

17   constitutes an unconstitutionally ineffective assistance of

18   counsel.   They therefore agree that this cause should be remanded

19   to the district court for resentencing of the defendant.       We,

20   too, agree and we therefore remand.   The government does not

21   concede ineffectiveness with respect to the second alleged

22   failure of sentencing counsel, however.

23              Despite a "baseline aversion to resolving

24   ineffectiveness claims on direct review," United States v.

25   Williams, 205 F.3d 23, 35 (2d Cir.), cert. denied, 531 U.S. 885

26   (2000) (quoting United States v. Salameh, 152 F.3d 88, 160-61 (2d

                                      5
1    Cir. 1998)), we "may, in [our] discretion, entertain an

2    ineffective assistance of trial counsel claim on direct appeal in

3    a narrow category of cases where: (1) as here, the defendant has

4    a new counsel on appeal; and (2) argues no ground of

5    ineffectiveness that is not fully developed in the trial record,"

6    id. (internal quotation marks omitted).

7              We have before us an insufficient record upon which to

8    resolve the loss amount ineffectiveness claim.   The resolution of

9    the claim is not therefore "beyond any doubt," nor have we been

10   given any reason to conclude that direct review is required "in

11   the interest of justice."    United States v. Khedr, 343 F.3d 96,

12   100 (2d Cir. 2003) (internal quotation marks omitted).     We

13   therefore decline to exercise direct review of the claim.

14             Ordinarily, we would not remand the claim to the

15   district court either.    A collateral proceeding under 18 U.S.C.

16   § 2255 is the preferred method for such a challenge.   See United

17   States v. Doe, 365 F.3d 150, 152 (2d Cir.), cert. denied, 543

18   U.S. 975 (2004).   We acknowledged in Doe, however, that

19   "circumstances may arise in which a remand for further

20   factfinding . . . might be the better way to address an

21   ineffectiveness claim."   Id. at 155.   We think this case presents

22   such a circumstance.   Inasmuch as it is already being returned to

23   the district court, with the government's consent, for

24   consideration of one ineffectiveness of counsel claim, we think

25   that efficiency will be served if the court addresses the second

26   ineffectiveness claim too.   That seems to us preferable to

                                       6
1    requiring separate, perhaps otherwise unnecessary, proceedings to

2    resolve the second claim.

3              We therefore remand the loss amount ineffectiveness

4    claim for development of the record and adjudication by the

5    district court in the first instance.

6                                CONCLUSION

7              For the foregoing reasons, the cause is remanded to the

8    district court for consideration of both claims of ineffective

9    assistance of counsel, and for resentencing to the extent the

10   district court deems warranted.




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