United States v. Draper (2009)

To affect substantial rights, an error 2 1 must be “prejudicial in that it affected the outcome of the district court proceedings.” United States 2 v. Draper, 553 F.3d 174, 181 (2d Cir. 2009) (internal quotation marks omitted).

United States v. Draper, 553 F.3d 174, 179 (2d Cir. 2009) (noting that we will reverse a conviction based on insufficient evidence “only if the error seriously 9 affects the fairness, integrity[,] or public reputation of the judicial proceedings” (internal quotation marks omitted)).

See United States v. Vernace, 811 F.3d 609, 615 (2d Cir. 2016) (preserved challenge); United States v. Draper, 553 F.3d 174, 179 (2d Cir. 2009) (unpreserved challenge).

To affect substantial rights, an error must be “prejudicial in that it affected the outcome of the district court proceedings.” United States v. Draper, 553 F.3d 174, 181 (2d Cir. 2009) (citation and internal quotation marks omitted).

See United States v. Edwards, 321 F. App’x 481, 484 (6th Cir. 2009); United States v. Draper, 553 F.3d 174, 180 (2d Cir. 2009).

There is no question that, to sustain a conviction under § 1513(b)(1), the Government must prove beyond a reasonable doubt that the defendant acted with retaliatory intent arising out of a person’s testimony at an “official proceeding,” and that the proceeding in which the person testified was in fact a federal proceeding, such as one “before a judge or court of the United States.” Id. § 1513(b); id. § 1515(a)(1). 7 That the statute is limited to acts of retaliation for test…

Here, although an error is not plain if it does not affect substantial rights, see United States v. Draper, 553 F.3d 174, 181 (2d Cir. 2009), it is not clear from the record in this case whether the district court would have arrived at the same sentence regardless of its Guidelines calculation, see Molina-Martinez, 136 S.Ct. at 1348 (recognizing that “there [was] at least a reasonable probability that the District Court would have imposed a different sentence” absent the mis…

In Draper , we recognized plain error where the jury instructions “failed to set out what the statute and this Circuit’s case law clearly require the government to also prove,” Id. at 180-81 (emphasis added). .

Thus, because there is very limited evidence of advance knowledge of the gun or of Ortega’s participation in the crime after the gun’s appearance on the beach, there is a reasonable probability of a different trial outcome had the jury been properly instructed. 3 “We also believe, again under these circumstances and for the same reasons, that the error ‘seriously affect[ed] the fairness’ of the proceeding below and exercise our discretion to correct it, having found the erro…

Id. (citing United States v. Draper, 553 F.3d 174, 182 (2d Cir.2009)).

In United States v. Draper, we clarified that, even if it is established that the information the witness divulged “to law enforcement authorities [related to] a federal offense,” the statute requires proof of a further element, namely, that those law enforcement authorities “were federal agents.” 553 F.3d 174, 180 (2d Cir.2009).

Because Mister did not raise an objection to the calculation below, we review the claim for plain error, which requires the defendant to establish not only that an error occurred but also that there is a “reasonable probability that, but for [the claimed error], the result of the proceeding would have been different.” United States v. Draper, 553 F.3d 174, 182 (2d Cir.2009) (internal quotation marks omitted).

See United States v. Draper, 553 F.3d 174 , 179 n. 2 (2d Cir. 2009).

See United States v. Draper, 553 F.3d 174, 180 (2d Cir. 2009) (noting that to sustain a “witness retaliation” charge under § 1513(b) the government “must establish . . . [that] the defendant engaged in conduct that caused or threatened a witness with bodily injury”).

See United States v. Yepes-Casas, 473 Fed.Appx. 90, 90-91 (2d Cir. 2012) (“[T]his Circuit’s recent precedent is unequivocal; any 'conviction error’ requires a de novo re-sentencing.”); see also United States v. Draper, 553 F.3d 174, 184 (2d Cir. 2009) (citing Quintieri and stating “because we are reversing the witness retaliation convictions, de novo resentencing is required”), ,See United States v. Weingarten, 713 F.3d 704, 711-12 (2d Cir. 2013) (describing Rigas, in part, …

One panel read Rigas, albeit only in a summary order, as having established an essentially uniform rule.5 Other panels, likewise in summary orders or in dicta, have continued to use, at least as a matter of linguistics, the “default rule” formulation of Quintieri when mentioning Rigas.6 Notably, 5 See United States v. Yepes‐Casas, 473 F. App’x 90 , 90‐91 (2d Cir. 2012) (“[T]his Circuit’s recent precedent is unequivocal: any ‘conviction error’ requires a de novo re‐sentencing…

One panel read Rigas, albeit only in a summary order, as having established an essentially uniform rule.5 Other panels, likewise in summary orders or in dicta, have continued to use, at least as a matter of linguistics, the “default rule” formulation of Quintieri when mentioning Rigas.6 Notably, 5 See United States v. Yepes‐Casas, 473 F. App’x 90 , 90‐91 (2d Cir. 2012) (“[T]his Circuit’s recent precedent is unequivocal: any ‘conviction error’ requires a de novo re‐sentencing…

See United States v. Draper, 553 F.3d 174, 179 (2d Cir.2009).

See United States v. Draper, 553 F.3d 174 , 179 n. 2 (2d Cir.2009).

See United States v. Draper, 553 F.3d 174, 179 (2d Cir. 2009) (“A plain error should be remedied by a reviewing court only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings.” (internal quotation marks omitted)). 12 Upon consideration of the two challenged comments in the context of the entire record, including the trial transcript, see United States v. Canniff, 521 F.2d 565, 571 (2d Cir. 1975), it is clear to us that neit…

See United States v. Draper, 553 F.3d 174, 179 (2d Cir.2009) ("A plain error should be remedied by a reviewing court only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings.” (internal quotation marks omitted)). 17 .

See United States v. Draper, 553 F.3d 174, 179 (2d Cir.2009) ("A plain error should be remedied by a reviewing court only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings." (internal quotation marks omitted)). [16] As noted above, 441 Wilson Avenue served as a base of operations for Hiciano's drug ring. [17] U.S.S.G. § 3B1.1(c) provides for a two-level enhancement for a leader, organizer, manager, or supervisor in any cr…

See United States v. Draper, 553 F.3d 174, 180 (2d Cir.2009).

We say ‘theoretically’ because, while plain-error review appears more stringent in theory, it is hard to comprehend how a standard can be any more stringent in actuality than that ordinarily applied to sufficiency-of-the-evidence challenges.” (citation omitted)); see also id. at 853 (Kozinski, J., dissenting) (explaining that the majority’s conclusion that the error was plain was no different than simply finding error). 13 See United States v. Wallace, 515 F.3d 327, 332 (4th…

See United States v. Wallace, 515 F.3d 327, 332 (4th Cir.2008); United States v. Muniz, 60 F.3d 65, 67 (2d Cir.1995) (“A convicted defendant who fails to raise the issue of insufficient evidence in the trial court cannot prevail on that ground on appeal unless it was plain error for the trial court not to dismiss on its own motion.”), rev’d on reconsideration, on other grounds, 184 F.3d 114 (2d Cir.1997); id. at 73-74 (Kearse, J., dissenting) ("I am not aware of any case in …

We say ‘theoretically’ because, while plain-error review appears more stringent in theory, it is hard to comprehend how a standard can be any more stringent in actuality than that ordinarily applied to sufficiency-of-the-evidence challenges.” (citation omitted)); see also id. at 853 (Kozinski, J., dissenting) (explaining that the majority’s conclusion that the error was plain was no different than simply finding error). 13 See United States v. Wallace, 515 F.3d 327, 332 (4th…

See United States v. Draper, 553 F.3d 174 , 179 n.2 (2d Cir. 2009).

See United States v. Draper, 553 F.3d 174, 179 (2d Cir.2009).

See United States v. Draper, 553 F.3d 174, 182 (2d Cir.2009) (concluding that there was no evidence to support an element on which the district court had failed to instruct the jury and that, as a result, there was “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different”) (alteration and internal quotation marks omitted).

United States v. Quintieri, 306 F.3d 1217, 1227-28 (2d Cir.2002); accord United States v. Draper, 553 F.3d 174, 184 (2d Cir.2009).

See United States v. Draper, 553 F.3d 174, 180 (2d Cir.2009) (citing United States v. Brown, 937 F.2d 32, 36 (2d Cir.1991)) (outlining a similar three-element construction ultimately focused on the same proof standard); Edwards, 321 Fed.Appx. at 484 (citing United States v. Paradis, 802 F.2d 553, 562 (1st Cir.1986)) (using a virtually identical three-element construction).

Nevertheless, mindful that the law entrusts district courts, not courts of appeals, with the primary responsibility for weighing the totality of circumstances relevant to sentencing, we conclude that, even in these circumstances, we must vacate the defendant’s sentence and remand the case to the district court so that it may decide, in the first instance, whether a conviction on three rather than four counts affects its assessment of the sentencing factors detailed in 18 U.S…