UNITES STATES of America, Appellee, v. Hector Vidal YEPES-CASAS, Defendant-Appellant, 473 F. App'x 90

SUMMARY ORDER Defendant Hector Yidal Yepes-Casas (‘Tepes”) appeals from a judgment of the United States District Court for the Eastern District of New York (Cogan, /.), sentencing him to 35 years in prison following his guilty plea. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. Yepes pled guilty to a sixteen-count second superseding indictment on April 16, 2009. As a result of an apparent oversight by the district court, the government, and defense counsel, he was sentenced on the basis of an eighteen-count fourth superseding indictment.

Both parties agree that Yepes’s conviction must be vacated as to Counts Sixteen and Seventeen, which did not appear in the indictment to which Yepes pled guilty. Yepes did not acknowledge involvement in any narcotics trafficking in March 2007, the subject of Counts Sixteen and Seventeen. Since as to any given count Yepes could not be convicted except upon his plea of guilty or a determination of his guilt by the trier of fact after trial, his conviction on Counts Sixteen and Seventeen must be vacated.

The government acknowledges the error, but maintains that re-sentencing is not required because the additional charges “can hardly be said to have been material to the sentencing decision.” However, this Circuit’s recent precedent is unequivocal: any “conviction error” requires a de novo re-sentencing. See United States v. Rigas, 583 F.3d 108, 117 (2d Cir.2009) (emphasis omitted).

Accordingly, Yepes must be re-sentenced de novo, which requires the district court to consider, as to each count of conviction, whether the vacated conviction changes how the remaining counts were sentenced, and the effect on the aggregate sentence: [A] district court that is required to resentence de novo must reconsider the sentences imposed on each count, as well as the aggregate sentence. In such circumstances, the court should determine whether the “change[ ]” in the “constellation of offenses of conviction” has “altered” the “factual mosaic related to those offenses.” [United States v.

Quintieri, 306 F.3d 1217, 1227-28 (2d Cir. 2002) ]. If so, the court must reconsider the sentence imposed on the count or counts affected by the vacatur of the conviction of another count, as well as on the aggregate sentence, in light of the sentencing factors in § 3553(a). If the court determines that the “factual mosaic” related to a count of conviction has not been altered, no further proceeding as to that count is necessary, except to the extent it affects the aggregate sentence. Rigas, 583 F.3d at 118-19.

Because we vacate Yepes’s conviction and sentence on other grounds, we do not now address his contention that the sentence is substantively unreasonable. For the foregoing reasons, we hereby VACATE Counts Sixteen and Seventeen of the conviction, VACATE the sentence imposed, and remand for re-sentencing on the remaining counts.