United States v. Argentina

260 F. App'x 344
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 15, 2008
DocketNo. 06-5189-cr
StatusPublished

This text of 260 F. App'x 344 (United States v. Argentina) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Argentina, 260 F. App'x 344 (2d Cir. 2008).

Opinion

[345]*345SUMMARY ORDER

Argentina was convicted in the Eastern District of New York, following a jury trial, of conspiracy to distribute and possess with intent to distribute ecstasy and marijuana in violation of 21 U.S.C. § 841(b)(1)(B), § 841(b)(1)(C), and § 841(b)(1)(D), conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a), conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) and 1956(a)(1)(B)(i), and carrying a firearm in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A)(ii). This appeal arises from a resentencing, entered on November 3, 2006, pursuant to a remand by this court in an August 23, 2006 summary order. United States v. Argentina, 173 Fed.Appx. 90 (2d Cir.2006). The defendant-appellant claims that by applying enhancements at the resentencing that the district court had not applied at the original sentencing—specifically an enhancement for abduction based on a car jacking count pursuant to U.S.S.G. 2B3.1(b)(5); an enhancement pursuant to U.S.S.G. 2B3.1(b)(6) for controlled substances and firearms taken during the offense; an enhancement for theft of over $10,000 pursuant to U.S.S.G. 2B3.1(b)(7)(B)—the district court went beyond the scope of our mandate and thus violated the mandate rule.

Argentina was initially sentenced, by the Honorable Joanna Seybert of the Eastern District of New York, as a career offender, pursuant to U.S.S.G. § 4B1.1, to a term of 300 months on count 1, concurrent terms on counts 2 through 9, and a mandatory consecutive term of 84 months on count 10 (the firearms count) for a total sentence of 384 months. At the initial sentencing, the district court determined that the career offender guideline applied, which raised Argentina’s guideline range from 210-262 months to 360 months-to-life.

At this sentencing, the following dialogue occurred between the court and defense counsel:

COURT: Have you had an opportunity to previously review the presentence report and the addendums that were supplied?
DEFENDANT: Yes
COURT: Other than the comments that were made on the last date that we met and the findings the court made, are there any additional objections to those items?
DEFENSE COUNSEL: No.
COURT: Okay.

After this discussion, Judge Seybert reviewed some of the suggested enhancements in the PSR—including the enhancements to which defense counsel had specifically objected. She made findings of fact as to each of these objected to enhancements, and indeed granted some of them. She did not, however, systematically consider each of the remaining enhancements that the PSR suggested, nor did she explicitly say what specific enhancements she was using to arrive at her suggested Guideline range.

The defendant-appellant appealed numerous aspects of his conviction and sentence, all of which were denied by this court, with one exception—an issue about which the government consented to a remand. We wrote: “the Government concedes to a remand for re-sentencing because Argentina has proffered new evidence that appears to demonstrate that Argentina does not qualify as a career offender under U.S.S.G. § 4B1.1. We therefore vacate Argentina’s sentence, and remand for resentencing in light of this newly presented evidence. For the foregoing reasons, we AFFIRM the conviction and REMAND to the district court with instructions to [346]*346vacate defendant’s sentence, and conduct resentencing consistent with this order.” Argentina, 173 Fed.Appx. at 96.

The district court resentenced Argentina on November 3, 2006. Defense counsel argued that in light of the fact that the remand was limited to newly proffered evidence regarding Argentina’s lack of career offender status, the district court was limited to imposing the same findings that it had made at the prior sentencing. Defense counsel further argued that because the district court had not made specific findings regarding a series of enhancements, it was not able to consider those at the resentencing—specifically an enhancement for abduction based on a car jacking count pursuant to U.S.S.G. 2B3.1(b)(5); an enhancement pursuant to U.S.S.G. 2B3.1(b)(6) for controlled substances and firearms taken during the offense; an enhancement for theft of over $10,000 pursuant to U.S.S.G. 2B3.1(b)(7)(B). The district court stated that it had asked the defendant if he had any additional objections to the PSR, which included these additional enhancements, and that defense counsel had stated “[n]o”—thus waiving any right to object to the enhancements at issue in this appeal.

Nonetheless, the district court stated that it would hear arguments from both sides on the enhancements at issue on this appeal. Defense counsel, again, contended that these enhancements were not found at the original sentencing proceeding and so it was improper to consider them in light of the directive to resentence Argentina as a non-career offender. The court responded:

My understanding was that unless I hear specific objections contesting factual objections or reasons for this enhancement not to apply, that burden being on the defendant to come in and say: this doesn’t apply, Judge. And we’re giving you notice that it doesn’t apply. And here are the reasons why. That if you’re silent on that, I can’t then be criticized or told I didn’t clearly review all of the necessary factors before applying an enhancement.
On its face, the probation report says that there was a car jacking enhancement. I asked you: Do you have any objections to these items?
And the answer was, No.
I accepted some of your arguments and made the appropriate reductions. I rejected others. It would seem that for me to go through each and every enhancement and say: I find this one, I find that one. It was inherent that I was making that finding.
However, to be totally secure in this resentencing, I am now considering your arguments for the first time ever, as to why this enhancement does not apply, or how it is that you perceive I didn’t include it in my calculation of the guidelines back on March the 11th of 2005.

In response to the district court’s offer to hear arguments on the enhancements at issue on this appeal, defense counsel argued that the car jacking enhancement was inappropriate, and conceded that the other enhancements were factually supported by trial evidence. The district court rejected the defendant’s objection to the car jacking enhancement.

In response to our remand, the district court found that Argentina was not a career offender, but that this finding did not change the calculation of his Guideline category. Defense counsel argued for a lesser sentence under 18 U.S.C. § 3553(a) and the district court inquired into Argentina’s conduct in prison since the original sentencing.

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Cite This Page — Counsel Stack

Bluebook (online)
260 F. App'x 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-argentina-ca2-2008.