         12-2710-cr
         United States v. Ortiz

                                 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 24th day of May, two thousand thirteen.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                SUSAN L. CARNEY,
 8                J. CLIFFORD WALLACE,*
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                                    Appellee,
16
17                             -v.-                                                 12-2710-cr
18
19       RICHARD ORTIZ,
20
21                                     Defendant-Appellant.
22
23
24       FOR APPELLANT:                YUANCHUNG LEE, Federal Defenders of New
25                                     York, Inc. Appeals Bureau, New York, NY.
26
27       FOR APPELLEE:                 ROBERT T. POLEMENI, Assistant United
28                                     States Attorney (David C. James,
29                                     Assistant United States Attorney, on the
30                                     brief), for Loretta E. Lynch, United

                *
                Judge J. Clifford Wallace of the United States Court of
         Appeals for the Ninth Circuit, sitting by designation.
1                       States Attorney for the Eastern District
2                       of New York, Brooklyn, NY.
3
4         Appeal from the United States District Court for the
5    Eastern District of New York (Cogan, J.).
6
7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

8    AND DECREED that the judgment of the United States District

9    Court for the Eastern District of New York is AFFIRMED.

10       Defendant-Appellant Richard Ortiz appeals from a

11   judgment by the United States District Court for the Eastern

12   District of New York (Cogan, J.) imposing a sentence of 30

13   months’ imprisonment and three years’ supervised release for

14   Ortiz’s escape from a halfway house in violation of 18

15   U.S.C. § 751(a).   The district court calculated a sentencing

16   guidelines range of 30-37 months after agreeing with the

17   government that a five-level enhancement was warranted under

18   U.S.S.G. § 2P1.1(b)(1) for Ortiz’s use of force in the

19   course of his escape.     We assume the parties’ familiarity

20   with the underlying facts, the procedural history, and the

21   issues presented for review.

22       “We review the district court’s interpretations of the

23   Sentencing Guidelines de novo and its related findings of

24   fact for clear error.”     United States v. Cain, 671 F.3d 271,

25   301 (2d Cir. 2012).     In 2007, Ortiz was sentenced to 62

26   months’ imprisonment in connection with being a felon in


                                     2
1    possession of a firearm in violation of 18 U.S.C.

2    § 922(g)(1).    Ortiz was serving the final three months of

3    his sentence at a halfway house when it was discovered that

4    he presented a non-human urine sample during a drug test.

5    When United States Marshals arrived at the halfway house to

6    collect Ortiz and return him to the custody of the Bureau of

7    Prisons, Ortiz panicked and ran, pushing through two halfway

8    house staff members in the process.    The district court

9    determined that Ortiz intentionally pushed the staff members

10   out of his way with reckless disregard for their safety.      On

11   this basis, the district court granted a five-level

12   enhancement pursuant to U.S.S.G. § 2P1.1(b)(1) because “the

13   use . . . of force against any person was involved” in

14   Ortiz’s escape.

15       Ortiz argues that the district court erred by

16   increasing his offense level pursuant to U.S.S.G.

17   § 2P1.1(b)(1) because Ortiz only recklessly, rather than

18   intentionally, used force against two halfway house staff

19   members when he fled the premises.    We agree with the

20   district court that Ortiz’s use of force was intentional and

21   that his mental state with respect to its consequences is

22   irrelevant.    “[A] person would ‘use . . . physical force

23   against’ another when pushing him.”    Leocal v. Ashcroft, 543


                                    3
1    U.S. 1, 9 (2004). Because U.S.S.G. § 2P1.1(b)(1) does not

2    mandate any particular degree of intent with regard to the

3    results of a person’s use of force, Ortiz’s actions

4    satisfied the provision by virtue of the court’s finding

5    that he intentionally ran into two staff members and pushed

6    them out of his way.

 7       For the foregoing reasons, the judgment of the district
 8
 9   court is hereby AFFIRMED.
10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk
12

13




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