Scribd Logo
Upload

Welcome to Scribd!

  • 92 views

    United States v. Juan Vasquez, 85 F.3d 59, 2d Cir. (1996)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals, Second Circuit remanded a case back to the district court for reconsideration of the defendant's sentence in light of a recent Supreme Court decision that narrowed the definition of "using" a firearm under a criminal statute. Specifically: 1) The Supreme Court's Bailey decision rendered the jury instruction on the firearm charge erroneous. 2) The government conceded the erroneous instruction requires vacating the firearm conviction, as it is unclear if the jury's verdict was based on proper or improper theories of guilt. 3) The court agreed the firearm conviction must be vacated, but affirmed the remaining convictions and remanded for the district court to reconsider resentencing without the vacated charge.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd

    United States v. Juan Vasquez, 85 F.3d 59, 2d Cir. (1996)

    Uploaded by

    Scribd Government Docs
    92 views4 pages
    The United States Court of Appeals, Second Circuit remanded a case back to the district court for reconsideration of the defendant's sentence in light of a recent Supreme Court decision that narrowed the definition of "using" a firearm under a criminal statute. Specifically: 1) The Supreme Court's Bailey decision rendered the jury instruction on the firearm charge erroneous. 2) The government conceded the erroneous instruction requires vacating the firearm conviction, as it is unclear if the jury's verdict was based on proper or improper theories of guilt. 3) The court agreed the firearm conviction must be vacated, but affirmed the remaining convictions and remanded for the district court to reconsider resentencing without the vacated charge.

    Original Description:

    Filed: 1996-05-22 Precedential Status: Precedential Citations: 85 F.3d 59 Docket: 1601

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    The United States Court of Appeals, Second Circuit remanded a case back to the district court for reconsideration of the defendant's sentence in light of a recent Supreme Court decision that narrowed the definition of "using" a firearm under a criminal statute. Specifically: 1) The Supreme Court's Bailey decision rendered the jury instruction on the firearm charge erroneous. 2) The government conceded the erroneous instruction requires vacating the firearm conviction, as it is unclear if the jury's verdict was based on proper or improper theories of guilt. 3) The court agreed the firearm conviction must be vacated, but affirmed the remaining convictions and remanded for the district court to reconsider resentencing without the vacated charge.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    92 views4 pages

    United States v. Juan Vasquez, 85 F.3d 59, 2d Cir. (1996)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals, Second Circuit remanded a case back to the district court for reconsideration of the defendant's sentence in light of a recent Supreme Court decision that narrowed the definition of "using" a firearm under a criminal statute. Specifically: 1) The Supreme Court's Bailey decision rendered the jury instruction on the firearm charge erroneous. 2) The government conceded the erroneous instruction requires vacating the firearm conviction, as it is unclear if the jury's verdict was based on proper or improper theories of guilt. 3) The court agreed the firearm conviction must be vacated, but affirmed the remaining convictions and remanded for the district court to reconsider resentencing without the vacated charge.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    You are on page 1of 4

    85 F.

    3d 59

    UNITED STATES of America, Appellee,


    v.
    Juan VASQUEZ, Defendant-Appellant.
    Nos. 1601, 1050, Dockets 94-1433(L), 94-1469.

    United States Court of Appeals,


    Second Circuit.
    Submitted Feb. 20, 1996.
    Decided May 22, 1996.

    Robert Koppelman, New York City, for defendant-appellant.


    Thomas M. Finnegan and Alexandra Rebay, Asst. U.S. Attys., New York
    City, submitted a letter brief for appellee.
    Before: NEWMAN, Chief Judge, McLAUGHLIN, and LAY,* Circuit
    Judges.
    JON O. NEWMAN, Chief Judge:

    This appeal from a judgment that includes a conviction for a firearm offense in
    violation of 18 U.S.C. 924(c) is before the Court on remand from the
    Supreme Court "for further consideration in light of Bailey v. United States," --U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Bailey narrowed the
    definition of "use" of a firearm for purposes of section 924(c) from the
    definition previously prevailing in this Circuit, see, e.g., United States v.
    Santos, 64 F.3d 41, 45 (2d Cir.1995), and applied in this case by both the
    District Court in the jury instructions and by this Court in initially affirming the
    conviction.

    In response to our invitation to the parties to express their views as to the


    appropriate disposition, the Government has acknowledged that Bailey has
    rendered the jury charge on the section 924(c) count erroneous. Furthermore,
    the Government has conceded that, on the facts of this case, the erroneous jury
    instruction requires that the section 924(c) conviction be vacated. The
    Government represents that it will not retry Vasquez on the section 924(c)

    charge, but urges that the case be remanded for resentencing on the three
    remaining counts, which involve narcotics offenses.
    3

    1. Vacating the section 924(c) count. Preliminarily, we observe that the


    Government's concession that the section 924(c) conviction should be vacated
    does not automatically govern an appellate court's disposition of an appeal. See
    Gibson v. United States, 329 U.S. 338, 344 & n. 9, 67 S.Ct. 301, 304 & n. 9, 91
    L.Ed. 331 (1946) (reversal, after independent consideration, following Solicitor
    General's confession of error); Young v. United States, 315 U.S. 257, 258-59,
    62 S.Ct. 510, 511-12, 86 L.Ed. 832 (1942) (same); see also DeMarco v. United
    States, 415 U.S. 449, 450, 94 S.Ct. 1185, 1186, 39 L.Ed.2d 501 (1974)
    (Rehnquist, J., dissenting) ("It is well established that this Court does not, or at
    least should not, respond in Pavlovian fashion to confessions of error by the
    Solicitor General."); Petite v. United States, 361 U.S. 529, 532, 80 S.Ct. 450,
    452, 4 L.Ed.2d 490 (1960) (Brennan, J., dissenting) ("Even where the
    Government confesses error, this Court examines the case on the merits....").
    Cf. Alvarado v. United States, 497 U.S. 543, 544-45, 110 S.Ct. 2995, 2996-97,
    111 L.Ed.2d 439 (1990) (remanding for reconsideration in light of Solicitor
    General's position, without independent assessment); Chappell v. United States,
    494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) (same).

    In the aftermath of Bailey, the status of pre-Bailey convictions for violations of


    section 924(c) is somewhat unclear, although the ground-rules are emerging.
    We have ruled that where a section 924(c) conviction is challenged for
    insufficiency of the evidence, the sufficiency of the evidence to support
    conviction on the "carrying" prong of the statute may be relied upon to sustain
    the conviction, notwithstanding the insufficiency of the evidence to support a
    conviction on the "use" prong, as narrowed by Bailey. See United States v.
    Giraldo, 80 F.3d 667, 675-76 (2d Cir.1996). Giraldo applied the doctrine of
    Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991),
    which held that where evidence is sufficient to support one theory of
    committing an offense but insufficient to support another theory and both
    theories were submitted to the jury, a general verdict will be sustained on the
    assumption that the jury rested its verdict on the valid theory. Griffin, 502 U.S.
    at 56-58, 112 S.Ct. at 472-74. Griffin, however, distinguished its approach from
    the situation where one of two theories submitted to a jury is legally deficient
    (evidently not regarding insufficiency of the evidence as a "legal" deficiency in
    this context). Id. at 58-59, 112 S.Ct. at 473-74. This approach was implicitly
    approved by Bailey itself, which remanded for consideration of sufficiency of
    the evidence as to "carrying" after ruling that the evidence was insufficient as to
    "use." Bailey, --- U.S. at ----, 116 S.Ct. at 509.

    The pending case presents a different issue--whether a jury instruction,


    erroneous under Bailey, requires reversal. We have recently held a Bailey error
    in an instruction to be harmless where it could be said, based on consideration
    of the entire jury charge and the evidence, that the jury's finding of a section
    924(c) violation was the "functional equivalent," Sullivan v. Louisiana, 508
    U.S. 275, 279-81, 113 S.Ct. 2078, 2082, 124 L.Ed.2d 182 (1993), of a finding
    that the firearm had been unlawfully carried. United States v. Pimentel, 83 F.3d
    55 (2d Cir.1996). That conclusion was reached in Pimentel because the firearm
    was only in one location, and that location was immediately accessible to a codefendant for whose offense the appellant was liable under a Pinkerton charge.

    Unlike Pimentel, the evidence in the pending case, if accepted by the jury,
    reveals that the gun could have been found to have been located at either (or
    both) of two locations. One location was Vasquez's apartment. The other was
    on his person when he went to a meeting with his narcotics associates. Under
    the instructions, the jury could have improperly found the first circumstance to
    be "use" and properly found the second circumstance to be "carrying." Since we
    are unable to determine whether the verdict rested on a legally sufficient theory
    and the verdict is not the functional equivalent of a necessary finding of
    "carrying," we agree with the Government that the firearm conviction must be
    vacated.

    2. Remanding for resentencing. We also agree with the Government that, in a


    case such as this, a remand for consideration of resentencing on the remaining
    counts is appropriate. Though we have not countenanced a revision of a
    sentence imposed on a count unrelated to counts that were vacated, see United
    States v. Pisani, 787 F.2d 71, 75-76 (2d Cir.1986), we have recognized that
    Pisani is limited to the context of unrelated counts, see United States v. Bohn,
    959 F.2d 389, 395 (2d Cir.1992). Pursuant to this distinction, we have
    frequently upheld increased sentences on remaining counts after conviction of a
    related section 924(c) count has been vacated. See United States v. Medina, 74
    F.3d 413, 417 (2d Cir.1996); United States v. Diaz, 834 F.2d 287, 290 (2d
    Cir.1987), cert. denied, 488 U.S. 818, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988);
    McClain v. United States, 676 F.2d 915, 918 (2d Cir.), cert. denied, 459 U.S.
    879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982).

    Accordingly, the conviction on Count Thirteen (section 924(c) violation) is


    vacated, the convictions on the remaining counts are affirmed, and the case is
    remanded to permit the District Court to consider resentencing.

    The Honorable Donald P. Lay of the United States Court of Appeals for the

    The Honorable Donald P. Lay of the United States Court of Appeals for the
    Eighth Circuit, sitting by designation

    You might also like