Appeal from a judgment of the United States District Court for the Eastern District of New York. The district court (Sterling Johnson, Jr., Judge) sentenced the defendant principally to a 51-month term of incarceration pursuant to his plea of guilty to one count of money laundering. On appeal, the defendant argues that the assistance of his sentencing counsel was unconstitutionally ineffective because counsel failed to challenge two aspects of the pre-sentence report: (1) its omission of a two-level global plea reduction and (2) its calculation of the loss amount. We agree with the parties that it is appropriate to vacate and remand for resentencing because of the first error. We direct the district court to consider the second ineffectiveness claim on remand.
Submitted: November 20, 2008
Before: SACK and WESLEY, Circuit Judges, and KAHN, District Judge.*fn1
Luis H. Yauri appeals from a judgment of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge). The court entered the judgment of conviction following Yauri's guilty plea to one count of money laundering in violation of 18 U.S.C. § 1956(a)(2)(B)(i). The court sentenced Yauri principally to a 51-month term of incarceration. On appeal, Yauri argues that his sentencing counsel's assistance was unconstitutionally ineffective because counsel failed to challenge two aspects of the pre-sentence report: (1) its omission of a two-level global plea reduction and (2) its calculation of the loss amount. The government concedes that the former omission constituted ineffective assistance. The parties ask us to vacate and remand the cause to the district court for resentencing. We will do so. We also direct the district court to consider the second ineffectiveness claim on remand.
Yauri was the proprietor of a money remitting business that assisted in the structured transfer of drug proceeds from Queens, New York to Colombia between September 2, 2003, and June 19, 2006. In February 2007, Yauri was arrested along with 20 other defendants implicated in money laundering. He was charged with money laundering in violation of 18 U.S.C. § 1956(a)(2)(B)(i).
In March 2007, the government extended a "global" plea offer to the defendants, which Yauri accepted. According to their plea agreement, the "estimate[d]... likely adjusted offense level under the Guidelines [was]... level 18," including offense calculations based on a loss amount of "more than $30,000" in laundered funds and a two-level reduction in the event of a "global disposition."*fn2 The estimated offense level corresponds to a range of imprisonment of 27 to 33 months.
On June 15, 2007, Yauri pleaded guilty pursuant to the plea agreement before Magistrate Judge Steven M. Gold. The government acknowledged that the "global disposition" condition specified in the plea agreement had been satisfied. Loss amount was not discussed during the plea proceedings.
A Pre-Sentence Investigation Report ("PSR") was then prepared by the probation office. The PSR reflected a calculation of a total offense level of 23. The difference between that level and the offense level of 18 referred to in the plea agreement resulted from (1) an increase of ten levels for loss amount (rather than six, as in the plea agreement), on the rationale that "[t]he defendant is accountable for the laundering of $154,108"; (2) omission of the two-point global disposition reduction; and (3) a three-point (rather than a two-point) reduction for timely acceptance of responsibility. According to the PSR calculations, the defendant's criminal history category was II because he committed the instant offense while serving a sentence for a state conviction. The applicable Guidelines range was 51 to 63 months.
On January 8, 2008, a sentencing hearing was held before the district court. Neither the government's nor the defendant's counsel at the sentencing hearing had attended the plea hearing. Yauri's sentencing counsel made three arguments:
(1) the defendant should be in criminal history category I, not II; (2) the district court should downwardly depart from the applicable Guidelines range in light of the defendant's family circumstances; and (3) the district court should downwardly depart from the applicable Guidelines range in light of various aspects of the offense conduct. The court rejected those arguments.
Yauri's counsel failed to challenge the PSR's omission of a two-point reduction for the occurrence of a "global disposition," however. With respect to loss amount, counsel stated that "[t]he amount of structuring that [Yauri] is guilty of and which he actually pled guilty to is $154,000" -- the amount stated in the PSR -- even though the plea agreement set the amount of ...