U.S. v. Van Tran and Som

• Decision Date: 01 August 1999
• Docket Number: Docket Nos. 99-1278
• Citation: 234 F.3d 798,2000 WL 1701651
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. HOANG VAN TRAN, and VICHETH SOM, Defendants Appellants. (L) & 99-1389
• Court: U.S. Court of Appeals — Second Circuit

Page 798

234 F.3d 798 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. HOANG VAN TRAN, and VICHETH SOM, Defendants Appellants.

Docket Nos. 99-1278(L) & 99-1389

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: April 7, 2000

Decided: November 15, 2000

Appeals from the judgments of conviction and sentences of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge) entered December 23, 1998, and February 8, 1999, after appellants' respective pleas of guilty.

VACATED and REMANDED for resentencing.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Colleen Cassidy, The Legal Aid Society Federal Defender Division, Appeals Bureau, New York, NY, for Appellant Hoang Van Tran.

J. Scott Porter, Esq., Syracuse, NY, for Appellant Vicheth Som.

Elizabeth S. Riker, Assistant United States Attorney for the Northern District of New York (Daniel J. French, United States Attorney for the Northern District of New York, John G. Duncan, Assistant United States Attorney, on the brief), Syracuse, NY, for Appellee.

Before: VAN GRAAFEILAND, and PARKER, Circuit Judges, and UNDERHILL, District Judge.^*

PARKER, Circuit Judge:

Vicheth Som and Hoang Van Tran appeal from the judgments of conviction and sentence of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge) entered December 23, 1998, and February 8, 1999, after their respective pleas of guilty. Som initially argued that the district court: (1) failed properly to apply U.S.S.G. § 2K2.4 Application Note 2 (1998) ("Application Note 2") when it enhanced the offense level of one bank robbery conviction seven levels for discharge of a firearm and imposed a ten-year consecutive sentence for violation of 18 U.S.C. § 924(c) in connection with a different bank robbery; (2) failed to consider the statutory factors in assessing restitution and creating a restitution payment schedule; and (3) ordered an onerous and unreasonable payment schedule including installment payments of $25 per month while incarcerated. Som also made several meritless arguments in his pro se supplemental brief. Tran originally argued that: (1) the type of firearm used or carried in a § 924(c) violation is an element of the offense and thus the district court improperly imposed the ten-year consecutive sentence for using or carrying a short-barreled rifle when Tran pleaded only to carrying a simple firearm; and (2) even if the type of firearm was only a sentencing factor, the district court improperly used his co-defendant's use of a short-barreled rifle to enhance Tran's sentence.

We held these appeals pending the Supreme Court's decision in United States v. Castillo, 120 S. Ct. 2090 (2000), which held that the type of firearm used or carried in a § 924(c) violation is an element of the offense.¹ Because the indictments of Som and Tran did not include this now essential element of the type of firearm, and the indictments did not otherwise describe the short-barreled rifle upon which their ten-year consecutive sentences for violation of § 924(c) were based, we requested further briefing on the effect of this defect in the indictments on Som and Tran's § 924(c) convictions and sentences.

For the reasons stated below, we hold that the § 924(c) counts of the indictments in these cases limited the scope of the district court's jurisdiction to accepting a guilty plea and entering a conviction and sentence only for the simple firearm offense charged in the indictments. Neither Som nor Tran challenges his conviction for the simple firearm offense. Thus, their § 924(c) convictions are deemed convictions for the simple firearm offense, and we need not vacate those convictions. We must, however, remand for resentencing or reindictment.

The government agrees that Tran's case should be remanded for resentencing based on conviction for the simple firearm offense because Tran pleaded guilty only to the simple firearm offense. We therefore remand Tran's case for that purpose. In so doing, we do not disturb any other findings or conclusions of the district court with regard to Tran's sentence.

The government does not agree, however, that Som's case should be remanded for resentencing. Rather, the government argues that his plea of guilty to aiding and abetting the use of a short-barreled rifle waived his right to challenge the indictment, his failure to challenge the indictment below requires that he show plain error and he has failed to show plain error, and the error was harmless because Som was not prejudiced by it. We reject each of these arguments. Thus, Som's case is also remanded for resentencing based on conviction for the simple firearm offense. We recognize that the government may wish to seek reindictment of Som for the enhanced § 924(c) offense. We take no position at this time on whether the government may seek reindictment because we believe that the district court should address that issue in the first instance. If the government wishes to seek reindictment of Som, the government must move the district court to vacate Som's conviction and dismiss that count of the indictment for that purpose.

Som's initial arguments must also be addressed because they concern portions of his sentence not affected by our conclusion that he must be resentenced on his §924(c) conviction. Upon considering these arguments, we conclude that the district court properly applied U.S.S.G. § 2K2.4 Application Note 2, but the record does not sufficiently indicate that the district court considered the statutory factors in determining the restitution payment schedule. We therefore leave undisturbed the district court's findings and conclusions with regard to Som's sentence for the bank robbery counts, except that we vacate the district court's restitution order, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

A. The Offense Conduct

On July 1, 1996, Som and another individual committed an armed robbery at Barnett Bank in Margate, Florida (the "Florida Robbery"). Som and his partner both wore face masks and were armed with 9mm semiautomatic handguns. Once inside the bank, Som fired a shot and ordered everyone to get down. Ten bank employees and seven customers were in the bank. Som vaulted the teller counter, ordered the tellers to open their drawers, took the money, and put it in a black gym bag. The money taken totaled approximately $168,000. Som left the bank with his partner and fled in a car driven by a third accomplice. The police were contacted and began pursuit of Som and his two accomplices. At the end of a high speed chase, the robbers crashed into two cars at a red light. Som and the two accomplices fled on foot. The officers shot and wounded the driver, who was carrying the money, and apprehended Som's partner. Som escaped.

Som left the area a few days later, traveling with Hoang Van Tran, a friend of his and the roommate of the getaway driver. They went to Syracuse, New York and stayed with Som's relatives while they cased the area for a bank to rob. They decided to rob an Onbank branch in Syracuse.

On the morning of July 17, 1996, Som and Tran committed armed robbery at Onbank in Syracuse, New York (the "New York Robbery"). They entered the bank wearing gloves and masks. One carried a semiautomatic pistol and the other carried a sawed-off rifle. The robber carrying the sawed-off rifle held the branch manager at gunpoint, while the other jumped over the teller counter and ordered one of the tellers to fill a pillowcase with money from all of the tellers' drawers. Som and Tran then fled the bank in a car. The money taken this time totaled $53,000.

After fleeing the bank, they threw the sawed-off rifle in some bushes near Som's brother's house. Soon thereafter, acting on a tip, police officers stopped Som and Tran and recovered from Som a .45 caliber semi-automatic pistol and a .22 caliber pistol. The police later recovered the money. FBI analysis of a bank photograph of the robbery led the FBI and police to believe that a sawed-off rifle had been involved in the robbery, and they questioned Som regarding the location of that weapon. Som claimed that he was not the one who carried the sawed-off rifle. They also questioned Tran, who also claimed that he was not the one who carried the sawed-off rifle.

B. The Guilty Pleas

On June 24, 1998, Tran pleaded guilty to one count of Bank Robbery, in violation of 18 U.S.C. § 2113(a)(d), and one count of Using or Carrying, or Aiding and Abetting the Use or Carrying, of Firearms During a Crime of Violence, in violation of 18 U.S.C. § 924(c). There was no plea agreement, and Tran never admitted that he carried or used a short-barreled rifle, or aided and abetted the carrying or use of a short-barreled rifle. His plea allocution indicates that he admitted only that he carried a simple firearm.

On August 28, 1998, Som pleaded guilty pursuant to a plea agreement to two counts of Bank Robbery (the Florida Robbery and the New York Robbery), in violation of 18 U.S.C. § 2113(a)(d), and one count of Using or Carrying, or Aiding and Abetting the Use or Carrying, of Firearms During a Crime of Violence, in violation of 18 U.S.C. § 924(c). The crime of violence associated with the § 924(c) count was the New York Robbery. Shortly after pleading guilty and before sentencing, Som identified the specific location where the sawed-off rifle had been disposed of. Som's statement led the police to the weapon, which had previously been recovered by the Onondaga County Sheriff's Department. Som still maintained that he was not the one who had carried the sawed-off rifle during the New York Robbery.

C. The Sentencings

On December 11, 1998, Som was sentenced to 207 months' imprisonment, followed by three years' supervised release, an assessment of $300, and restitution of $27,711.40. Som was sentenced to two concurrent...