USA v. Ortiz

• Decision Date: 01 September 2010
• Docket Number: Docket No. 08-2648-cr.
• Citation: 621 F.3d 82
• Parties: UNITED STATES of America, Appellee, v. Eric ORTIZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

621 F.3d 82

UNITED STATES of America, Appellee,

v.Eric ORTIZ, Defendant-Appellant.

Docket No. 08-2648-cr.

United States Court of Appeals,Second Circuit.

Heard: Jan. 27, 2009.

Decided: Sept. 1, 2010.

Zachary Margulis-Ohnuma, New York, N.Y., for Defendant-Appellant.

Jacqueline L. Spratt, Asst. U.S. Atty., Brooklyn, N.Y. (Benton J. Campbell, U.S. Atty., Susan Corkery, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for Appellee.

Before: NEWMAN and POOLER, ^* Circuit Judges, and RAKOFF, ^** District Judge.

JON O. NEWMAN, Circuit Judge.

This appeal primarily presents the issue of whether, and under what circumstances, a more onerous guideline, issued by the United States Sentencing Commission after the date of an offense, renders a sentence imposed under the advisory Guidelines regime in violation of the Ex Post Facto Clause. The issue arises on an appeal by Defendant-Appellant Eric Ortiz from the May 27, 2008, judgment of the District Court for the Eastern District of New York (Dora L. Irizarry, District Judge). We conclude that such a sentence can violate the Clause, but that the Clause was not violated in the circumstances of this case. We therefore affirm.

Background

A search of the Defendant's residence in Brooklyn, New York, uncovered five guns, ammunition, heroin, and cocaine. The Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possession of narcotics with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

At sentencing, the District Court agreed with the pre-sentence report that two of the Defendant's prior felony convictions were crimes of violence: an assault conviction in Rhode Island in 2000 and an attempted third-degree burglary conviction in New York in 2006. Applying the 2006 Guidelines in effect at the time of sentencing, ¹ the Court used these two prior convictions to set the base offense level for the firearms offense at 24, see U.S.S.G. § 2K2.1(a)(2), instead of level 20, which would have applied if the Defendant had had only one prior conviction for a crime of violence, see id. § 2K2.1(a)(4)(A). The Court then made two adjustments, adding two levels for possession of three to seven firearms, see id. § 2K2.1(b)(1)(A), and, pertinent to this appeal, adding four levels because the serial number of one of the firearms had been obliterated, see id. § 2K2.1(b)(4). The Sentencing Commission had increased the adjustment for an obliterated serial number from two levels to four levels on November 1, 2006, see id. App. C, amend. 691, after the date of the Defendant's offenses. These two adjustments would have brought the adjusted offense level to 30, but the Guidelines cap at 29 the increased offense level that may result from the (b)(1) and (b)(4) adjustments. See id. § 2K2.1(b) (text following (b)(4)).

The Court then increased the capped offense level of 29 by four levels for possessing a firearm in connection with another felony offense (the narcotics offense), see id. § 2K2.1(b)(6), and subtracted three levels for acceptance of responsibility, see id. § 3E1.1(b). The resulting adjusted offense level of 30 in Criminal History Category VI yielded a sentencing range of 168 to 210 months. ² The Court imposed a non-Guidelines sentence of 120 months, 48 months below the bottom of the applicable range.

The Defendant contended in the District Court that the New York attempted burglary conviction was not a crime of violence and that the obliterated serial number enhancement should not apply because the Defendant was not aware that the number had been obliterated. No objection was made to the fact that this enhancement was increased from two to four levels after the date of the Defendant's offenses.

Discussion

Recognizing that he has received a non-Guidelines sentence, Ortiz nevertheless contends that his sentence is unlawful because the Guidelines calculation, which the District Court made as the first step in the sentencing process, was incorrect. Because a district court “should begin all sentencing proceedings by correctly calculating the applicable Guidelines range,” Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (emphasis added), we review the correctness of that calculation even if a non-Guidelines sentence is imposed, see id. at 51, 128 S.Ct. 586 (appellate court “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range”); United States v. Carr, 557 F.3d 93, 103 (2d Cir.2009) (same). The Defendant challenges the calculation on three grounds: (1) his conviction for attempted burglary in the third degree under New York Penal Law § 140.20 was not a crime of violence, (2) the enhancement for an obliterated serial number was improper because he did not know of the obliteration, and (3) even if the enhancement was applicable, the use of the amended enhancement violated the Ex Post Facto Clause.

1. Attempted Burglary Conviction as a Crime of Violence

The Appellant's challenge to the enhancement for a crime of violence is without merit. We have ruled that third-degree burglary under New York law is a “crime of violence” for purposes of a firearms offense enhancement under U.S.S.G. § 4B1.2(a)(2), see United States v. Brown, 514 F.3d 256, 268-69 (2d Cir.2008), and have also ruled that the enhancement applies to attempted third-degree burglary, see United States v. Hurrell, 555 F.3d 122, 124 (2d Cir.2009).

2. Obliterated Serial Number Enhancement

The Appellant's challenge to the enhancement for an obliterated serial number is also unavailing. He contends that the enhancement requires scienter, but we have previously ruled that the enhancement applies “regardless of whether the defendant knew or had reason to believe that the firearm ... had an ... obliterated serial number,” U.S.S.G. § 2K2.1, comment. (n.8(B)). See Brown, 514 F.3d at 269.

3. Ex Post Facto Challenge to Use of the Amended Guideline

The Appellant contends that use of the amended guideline for an obliterated serial number is barred by the Ex Post Facto Clause because the amendment was adopted after the date of his offense. The Defendant's sentencing range under the unamended Guidelines would have been 151 to 188 months; under the amended Guidelines the range would have been 168 to 210 months. However, the District Court imposed a non-Guidelines sentence of 120 months.

A preliminary issue is the standard of review. At oral argument the Government contended that plain-error review applies because the Defendant did not make an Ex Post Facto Clause argument in the District Court. The Defendant responded that the Government has forfeited insistence on the strict standard of plain-error review because the Government did not urge that standard in its appellate brief.

We have found no decision explicitly considering this “sauce for the goose” argument in the context of a sentencing appeal. In other contexts, however, the argument has prevailed. In Gronowski v. Spencer, 424 F.3d 285 (2d Cir.2005), after a verdict and judgment for the plaintiff, the defendants unsuccessfully moved for judgment n.o.v. under Rule 50(b) of the Federal Rules of Civil Procedure. On appeal, the defendants sought reversal on the ground that their compliance with a civil service law precluded the plaintiff's claim under 42 U.S.C. § 1983. See id. at 297. The plaintiff contended that the defendants had waived that defense by failing to raise it in their Rule 50(a) motion for a directed verdict at the close of the plaintiff's case, although it had been raised in their Rule 50(b) motion. See id. We ruled that the plaintiff had waived her waiver argument by failing to assert it in her opposition to the defendants' Rule 50(b) motion. See id. See also Atkins v. N.Y. City, 143 F.3d 100, 103 (2d Cir.1998) (by not objecting in district court, appellees waived their argument that appellant waived his objection to the jury verdict by not objecting to jury charge or to inconsistent verdicts); Gibeau v. Nellis, 18 F.3d 107, 109 (2d Cir.1994) (by not objecting in district court, appellees waived their argument that appellants had waived their right to judgment n.o.v. by not moving for directed verdict); cf. Kone v. Holder, 596 F.3d 141, 147 n. 4 (2d Cir.2010) (Government waived objection to appellant's failure to exhaust issue on appeal to Board of Immigration Appeals).

These waive-the-waiver (more accurately, forfeit the forfeiture) rulings suggest that the same approach should apply in the sentencing context, especially in view of the relaxed standard of plain-error review that we have sometimes found applicable for unpreserved sentencing errors because a resentencing is not nearly as burdensome as a retrial. See, e.g., United States v. Gamez, 577 F.3d 394, 397 (2d Cir.2009); United States v. Williams, 399 F.3d 450, 456-57 (2d Cir.2005); United States v. Simmons, 343 F.3d 72, 80 (2d Cir.2003). We need not rule definitively on the standard of review, however, because even if the alleged claim of error is available for appellate review, we reject it on the merits, as we now explain.

Whether application of a guideline amended after the date of an offense violates the Ex Post Facto Clause under the advisory Guidelines regime, as it did when the Sentencing Guidelines were mandatory, see Miller v. Florida, 482 U.S. 423, 432-36, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), has divided the courts of appeals. ³ In United States v. Demaree, 459 F.3d 791 (7th Cir.2006), the Seventh Circuit ruled that the Clause was not violated because the applicable guideline, used to make the initial Guidelines calculation, only “nudges” the sentencing judge toward the sentencing range, but the judge's “freedom to impose a reasonable sentence outside the range is unfettered.” Id. at 795. See also United States v. Barton, 455 F.3d 649, 655 n. 4 (6th Cir.2006). Other circuits, in holdings or...