No. 06-4570-cr.United States Court of Appeals, Second Circuit.
June 18, 2007.
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.
Appeal from the United States District Court for the Eastern District of New York (Spatt, J.).
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 Appellee.
Steven M. Statsinger, Federal Defenders of New York, Inc. Appeals Bureau, New York, N.Y., for Defendant-Appellant.
PRESENT: Hon. PIERRE N. LEVAL, Hon. GUIDO CALABRESI and Hon. JOHN R. GIBSON,[*] Circuit Judges.
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. Jacobsan, 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.