Yauri v. United States, No. 08-1105 (2d Cir. 2009)
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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 14 Before: 15 SACK and WESLEY, Circuit Judges, and KAHN, District Judge.* Appeal from a judgment of the United States District 16 Court for the Eastern District of New York. 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. 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 district court On appeal, the 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. 2 it is appropriate to vacate and remand for resentencing because 3 of the first error. 4 second ineffectiveness claim on remand. 5 We agree with the parties that We direct the district court to consider the Vacated and remanded. 6 7 8 9 10 11 BENTON J. Attorney, (David C. Assistant counsel), Appellee. 12 13 14 GLENN A. OBEDIN, Bassett & Bassett, P.C., Central Islip, New York, for Appellant. 15 16 CAMPBELL, United States Eastern District of New York James, Bonnie S. Klapper, United States Attorneys, of Brooklyn, New York, for PER CURIAM: 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). 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). 21 court sentenced Yauri principally to a 51-month term of 22 incarceration. 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. 27 that the former omission constituted ineffective assistance. 28 parties ask us to vacate and remand the cause to the district 29 court for resentencing. The court entered the judgment The On appeal, Yauri argues that his sentencing We will do so. 2 The government concedes We also direct the The 1 district court to consider the second ineffectiveness claim on 2 remand. BACKGROUND 3 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. 8 other defendants implicated in money laundering. 9 with money laundering in violation of 18 U.S.C. 10 In February 2007, Yauri was arrested along with 20 He was charged § 1956(a)(2)(B)(i). 11 In March 2007, the government extended a "global" plea 12 offer to the defendants, which Yauri accepted. 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."** 18 corresponds to a range of imprisonment of 27 to 33 months. 19 According to The estimated offense level On June 15, 2007, Yauri pleaded guilty pursuant to the 20 plea agreement before Magistrate Judge Steven M. Gold. 21 government acknowledged that the "global disposition" condition 22 specified in the plea agreement had been satisfied. 23 was not discussed during the plea proceedings. ** The Loss amount 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. 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) The difference 10 reduction for timely acceptance of responsibility. 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. 14 was 51 to 63 months. 15 According to The applicable Guidelines range 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. 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. 25 arguments. Yauri's sentencing counsel made three arguments: The court rejected those 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. 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 With respect to loss amount, counsel 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. 12 appeals. Yauri DISCUSSION 13 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. 19 to the district court for resentencing of the defendant. 20 too, agree and we therefore remand. 21 concede ineffectiveness with respect to the second alleged 22 failure of sentencing counsel, however. 23 They therefore agree that this cause should be remanded We, The government does not 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. 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." 12 100 (2d Cir. 2003) (internal quotation marks omitted). 13 therefore decline to exercise direct review of the claim. 14 The resolution of United States v. Khedr, 343 F.3d 96, We 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. 17 States v. Doe, 365 F.3d 150, 152 (2d Cir.), cert. denied, 543 18 U.S. 975 (2004). 19 "circumstances may arise in which a remand for further 20 factfinding . . . might be the better way to address an 21 ineffectiveness claim." 22 such a circumstance. 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. See United We acknowledged in Doe, however, that Id. at 155. We think this case presents Inasmuch as it is already being returned to 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. 7
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