06-4570-cr

United States v. Olea

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND FEDERAL RULE

OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER,

IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE

FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)." UNLESS THE SUMMARY

ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE

(SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/), THE PARTY CITING THE SUMMARY

ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE

SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A

DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE

CASE IN WHICH THE ORDER WAS ENTERED.

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 18th day of June, two thousand and seven.

PRESENT:

HON . PIERRE N. LEVAL

HON . GUIDO CALABRESI,

HON. JOHN R. GIBSON,*

Circuit Judges.

United States of America,

Appellee,

-v.- No. 06-4570-cr

Omar Miranda Olea,

Defendant-Appellant.

For Appellee: DEMETRI JONES, Assistant U.S Attorney (Peter A.

Norling, on the brief), for Roslynn R. Mauskopf, U.S.

Attorney, Eastern District of New York For Defendant-Appellant: STEVEN M. STATSINGER, F ederal Defenders of New York, Inc. Appeals Bureau, New York, N.Y Appeal from the United States District Court for the Eastern District of New York (Spatt, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the case is REMANDED to the district court for proceedings in accordance with this Order.

The defendant-appellant Omar Miranda Olea appeals his sentence of thirty-three months following a final judgment of conviction rendered on August 11, 2006 in the United States District Court for the Eastern District of New York (Spatt, J.).

We remand to the district court, in accordance with the procedures in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), to ask the following question: Assuming that the district court had concluded, (1) that the total number of people transported by Olea was between 25 to 99 rather than 100 or more; and (2) that there was insufficient evidence to find that the truck involved in this case was not rated to carry the number of people who were transported; what is the sentence that the district court would have imposed? Because appellant's term of incarceration has already nearly reached the term that the original agreement between the government and appellant had proposed, we request that the district court reply to this question within five days of the issuance of this order. Although the mandate shall issue forthwith, we retain jurisdiction pending receipt of the answer to this question. Id. The parties should notify the Clerk of the Court within five days of the entry of the District Court's answer at which time the matter will be referred automatically to this panel for disposition.

FOR THE COURT: Catherine O. Wolfe, Clerk of the Court By:

* The Honorable John R. Gibson, United States Court of Appeals for the Eighth Circuit, sitting by designation.