Case 17-1728, Document 19, 09/19/2017, 2127673, Page1 of 21

17-1728
IN THE
United States Court of Appeals
FOR THE SECOND CIRCUIT

UNITED STATES OF AMERICA,

Appellee,
v.

ANTHONY RODRIGUEZ,
Defendant-Appellant,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK (NEW YORK CITY)

OPENING BRIEF FOR APPELLANT

ANTHONY RODRIGUEZ

Ezra Spilke, Esq.,

LAW OFFICES OF
EZRA SPILKE, PLLC
Suite 512
315 Flatbush Avenue
Brooklyn, NY 11217
646-762-9713
Counsel for Appellant

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477
A Division of Lantagne Duplicating Services
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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

JURISDICTIONAL STATEMENT .......................................................................... 1

ISSUE FOR REVIEW ............................................................................................... 1

STATEMENT OF THE CASE AND FACTS .......................................................... 1

1. Offense Conduct ......................................................................................... 1

2. Plea and Sentence ....................................................................................... 2

SUMMARY OF ARGUMENT ................................................................................. 5

ARGUMENT ............................................................................................................. 5

THE DISTRICT COURT ERRED IN APPLYING § 2A2.1(a) OF THE

UNITED STATES SENTENCING GUIDELINES BECAUSE
INSUFFICIENT EVIDENCE EXISTED THAT RODRIGUEZ HAD THE
SPECIFIC INTENT TO KILL THE OCCUPANT OR OCCUPANTS OF
THE VEHICLE AT WHICH HE FIRED .................................................................. 5

A. Standard of Review .................................................................................... 5

B. Relevant Statutory Authority and Sentencing Guidelines Sections ........... 7

C. Discussion ................................................................................................... 8

CONCLUSION ........................................................................................................ 14

CERTIFICATE OF COMPLIANCE ....................................................................... 16

CERTIFICATE OF SERVICE ................................................................................ 17

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TABLE OF AUTHORITIES

CASES

Braxton v. United States,

500 U.S. 344 (1991).....................................................................................8, 13

Jackson v. Virginia,
443 U.S. 307 (1979)........................................................................................... 7

Lockett v. Ohio,
438 U.S. 586 (1978)........................................................................................... 9

Tison v. Arizona,
481 U.S. 137 (1987)........................................................................................... 9

United States v. Ebbers,

458 F.3d 110 (2d Cir. 2006) .......................................................................... 5-6

United States v. Gotti,

459 F.3d 296 (2006) .......................................................................................... 6

United States v. Jackson,

351 F. Supp. 2d 108 (S.D.N.Y. 2004) ............................................................. 10

United States v. Kwong,

14 F.3d 189 (2d Cir. 1994) ............................................................................ 8, 9

United States v. Kwong,

877 F. Supp. 96 (E.D.N.Y. 1995), aff'd, United States v. Kwong,
69 F.3d 663 (2d Cir. 1995) .............................................................................. 10

United States v. Shaw,

701 F.2d 367 (5th Cir. 1983) ........................................................................... 13

United States v. Stewart,

590 F.3d 93 (2d Cir. 2009) ................................................................................ 7

United States v. Stroman,

420 F. App'x. 100 (2d Cir. 2011)....................................................................... 8
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United States v. Vasquez,

389 F.3d 65 (2d Cir. 2004) ................................................................................ 6

United States v. Wilson,

992 F.2d 156 (8th Cir. 1993) ..................................................................... 11, 12

STATUTES & RULES

18 U.S.C. § 922(g)(1)................................................................................................. 1
18 U.S.C. § 1111(a) ............................................................................................... 7, 8
18 U.S.C. § 3231 ........................................................................................................ 1
28 U.S.C. § 1291 ........................................................................................................ 1

Fed. R. Crim. P. 29..................................................................................................... 6

N.Y. Penal Law § 265.03 ........................................................................................... 1

UNITED STATES SENTENCING GUIDELINES

U.S.S.G. § 2A2.1..................................................................................................7, 14
U.S.S.G. § 2A2.1(a) ...........................................................................................1, 4, 5
U.S.S.G. § 2A2.1(a)(1) .............................................................................................. 7
U.S.S.G. § 2A2.2.................................................................................................... 2, 3
U.S.S.G. § 2K2.1(c) ................................................................................................... 7
U.S.S.G. § 2K2.1(c)(1) .............................................................................................. 3
U.S.S.G. § 2X1.1(c)(1) .............................................................................................. 7
U.S.S.G. § 3D1.4........................................................................................................ 3
U.S.S.G. § 3E1.1 ........................................................................................................ 3

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JURISDICTIONAL STATEMENT

The district court had jurisdiction under 18 U.S.C. § 3231 and entered a final

judgment of conviction on May 30, 2017. A122.1 Rodriguez filed a timely notice

of appeal on May 31, 2017. A128. This Court has jurisdiction under 28 U.S.C.

§ 1291.

ISSUE FOR REVIEW

WHETHER THE DISTRICT COURT ERRED IN APPLYING § 2A2.1(a) OF

THE UNITED STATES SENTENCING GUIDELINES.

STATEMENT OF THE CASE AND FACTS

1. Offense Conduct
Rodriguez pleaded guilty to two counts of possession of ammunition by a

felon in violation of 18 U.S.C. § 922(g)(1). Count Two charged Rodriguez with

possessing 5.56 mm NATO caliber ammunition on July 22, 2014. A11-12. Count

One charged Rodriguez with possessing .380 caliber ammunition on October 26,

2015. A11. In 2013, Rodriguez had been convicted, in New York Supreme Court,

Bronx County, of attempted criminal possession of a weapon in violation of New

York Penal Law § 265.03, a crime punishable by imprisonment for a term

exceeding one year. PSR ¶ 40; A10; see N.Y. Pen. L. § 265.03. Section 922(g)(1)

thus made it unlawful for him to possess—in or affecting interstate commerce—

ammunition. § 922(g)(1).

1
Citations beginning with "A" refer to the Appendix page.

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As to Count One, the ammunition in question was connected to a shooting

that Rodriguez committed outside of 681 Beck Street in the Bronx. A criminal

investigator in the United States Attorney's Office reviewed surveillance video of

the shooting and swore out a complaint requesting an arrest warrant. The

investigator described the events captured on the video as follows:

a. O[n o]r about October 26, 2015, at approximately 4:40p.m.,

RODRIGUEZ was standing on the north side of Beck Street in the
vicinity of 681 Beck Street. At first, RODRIGUEZ was leaning on the
hood of a car and looking away from the direction of oncoming
traffic. RODRIGUEZ then turned sideways and looked towards the
direction of oncoming traffic.

b. As a motor vehicle (the "Vehicle") approached from the direction

that RODRIGUEZ was looking towards, RODRIGUEZ took out a
firearm (the "Firearm") and shot approximately four shots at the
Vehicle (the "Shooting").

c. RODRIGUEZ then crossed Beck Street and walked eastbound on

Beck Street. RODRIGUEZ briefly paused and talked to another
individual in front of the vicinity of 686 Beck Street.

d. RODRIGUEZ then walked westbound on Beck Street while

holding what appeared to be the Firearm in his right hand.
RODRIGUEZ then stopped at 676 Beck Street (the "Building"),
pressed an intercom button, waited for several seconds, and entered
the Building.

A9.

2. Plea and Sentence

Rodriguez pleaded guilty to both counts of the indictment before Judge

Alison J. Nathan without a plea agreement. A14-36. The facts as set forth in the

complaint were uncontested.

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Rodriguez also conceded that the possession of ammunition was connected to the

"commission or attempted commission of another offense." USSG 2K2.1(c)(1).

The only issue at sentencing with respect to the Guidelines was what other

offense Rodriguez's possession of ammunition in Count One was connected to.

The Probation Department ("Probation") asserted that the connected offense was

attempted murder, resulting in a base offense level of 33 for Count One. PSR ¶ 19;

see § 2A2.1(a). Rodriguez objected because insufficient evidence existed that he

had the specific intent to kill required to prove attempted murder. A44-51. Rather,

Rodriguez urged the district court to apply USSG § 2A2.2, which corresponds to

the offenses of aggravated assault and attempted manslaughter. A49-50. In support

of his argument, Rodriguez contended that his conduct was at least equally

supportive of an intent to cause bodily injury as it was of an intent to kill. A49-50.2

The district court overruled Rodriguez's objection and accepted the PSR's

guidelines calculation. The court acknowledged that "[a]ny attempt to commit

murder requires a specific intent to kill," and cited "such factors as the firing of

multiple shots at a victim at close range" as indicators of that intent. A102.

The court characterized Rodriguez's conduct before, during and after the

October 26, 2015, shooting as depicted in the video footage as follows:

2
Under § 2A2.2, the resulting guidelines range would have been thirty to thirty-
seven months' imprisonment. A51; see USSG §§ 2A2.2, 3D1.4, 3E1.1.

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[The video] clearly reflects that Mr. Rodriguez carried a firearm

concealed in his pocket to the scene of a shooting.

He then waited calmly, leaning on the hood of a car parked on the side
of the street and facing away from the direction of oncoming traffic.
Mr. Rodriguez then turned toward oncoming traffic and watched as a
vehicle approached him. As the vehicle neared his position, very close
to him, Mr. Rodriguez removed the firearm from his pocket, took
several steps into the street, and fired multiple shots at the vehicle at
close range.

Mr. Rodriguez followed for several steps as the vehicle drove past
him. He then turned to cross the street and walked down the sidewalk
in a deliberate, unhurried manner, apparently still holding the firearm
and pausing briefly at one point to use his cell phone. Mr. Rodriguez
then met with another individual, and the two walked calmly down the
street, with Mr. Rodriguez ultimately entering another building
seemingly using the intercom system.

A103.

The court highlighted some of its factual findings, including that Rodriguez

carried a firearm to the scene of the shooting, that he waited "calmly" for the target

vehicle, that he "discharge[ed] multiple shots at the vehicle at close range and

while the vehicle was in motion," and that, immediately after the shooting, he

"conduct[ed] himself in a deliberate manner." Based on Rodriguez's conduct as

depicted in the video footage, the court found that "Rodriguez acted with malice

aforethought, with premeditation, and with a specific intent to kill the occupant or

occupants of the vehicle," A104, and, accordingly, concluded that the appropriate

guideline was § 2A2.1(a), A104-05.

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The resulting guidelines range was 108 to 135 months' imprisonment. The

district court sentenced Rodriguez principally to 108 months' imprisonment on

both counts to run concurrently. A123.

SUMMARY OF ARGUMENT

The crime of attempted murder requires the specific intent to kill. The only

evidence of Rodriguez's intent was the surveillance video footage of the shooting.

The evidence does not support the district court's finding that Rodriguez had the

specific intent to kill the occupant or occupants of the vehicle at which he shot.

The car was passing at a high rate of speed. The car was closest to Rodriguez's

gunshots—no more than three feet—for less than a second. Rodriguez exhibited

recklessness rather than a specific intent to kill, and should have been sentenced

under the Guidelines section for aggravated assault. Accordingly, a remand for re-

sentencing is necessary.

ARGUMENT

THE DISTRICT COURT ERRED IN APPLYING § 2A2.1(a) OF THE

UNITED STATES SENTENCING GUIDELINES BECAUSE
INSUFFICIENT EVIDENCE EXISTED THAT RODRIGUEZ HAD THE
SPECIFIC INTENT TO KILL THE OCCUPANT OR OCCUPANTS OF
THE VEHICLE AT WHICH HE FIRED

A. Standard of Review
"[This Court] review[s] a district court's conclusions of law de novo [and] its

application of the Guidelines on issues of fact for clear error . . . ." United States v.

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Ebbers, 458 F.3d 110, 126 (2d Cir. 2006). This Court has held that "in determining

the appropriate standard of review for a district court's application of the

Guidelines to the specific facts of a case, [it] should follow an 'either/or approach,'

adopting a de novo standard of review when the district court's application

determination was primarily legal in nature, and adopting a 'clear error' approach

when the determination was primarily factual." United States v. Gotti, 459 F.3d

296, 349 (2006) (quoting United States v. Vasquez, 389 F.3d 65, 75 (2d Cir.

2004)); see Vasquez, 389 F.3d at 76-77 (reviewing de novo the issue of whether,

under the Guidelines, the grouping of offenses involving the same person on

different days was appropriate only when force is used).

In Gotti, the Court found that the issue of whether a defendant exercised a

sufficient level of control over the enterprise to qualify for a role enhancement

under the Guidelines was a question of fact. Gotti, 459 F.3d at 349. Accordingly,

the Court elected to apply the clear error standard. Id. In so doing, the Court

disagreed with the government's assertion that there was "no dispute about the

relevant facts." Id. (internal quotation marks omitted).

Unlike in Gotti, there is no dispute in this case over the facts. The posture of

this case is akin to an appeal of an order denying a judgment of acquittal under

Rule 29 of the Federal Rules of Criminal Procedure. When considering a Rule 29

motion, courts are instructed to "view[] the evidence in the light most favorable to

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the prosecution" and decide whether "any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia,

443 U.S. 307, 319 (1979). On appeal, the Court reviews de novo a district court's

denial of a Rule 29 motion. United States v. Stewart, 590 F.3d 93, 109 (2d Cir.

2009). Because there is no dispute over the facts of this case, the district court's

application of U.S.S.G. § 2A2.1 should be reviewed de novo.

B. Relevant Statutory Authority and Sentencing Guidelines Sections

Section 2K2.1(c) of the United States Sentencing Guidelines ("Guidelines")

states in relevant part:

If the defendant used or possessed any firearm or ammunition cited in

the offense of conviction in connection with the commission or
attempted commission of another offense, . . . apply—

(A) §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to

that other offense, if the resulting offense level is greater than
that determined above.

USSG § 2K2.1(c).

Section 2X1.1(c)(1) provides: "When an attempt, solicitation, or conspiracy

is expressly covered by another offense guideline section, apply that guideline

section." USSG § 2X1.1(c)(1). Attempted murder is expressly covered by § 2A2.1

and supplies a base offense level of 33 "if the object of the offense would have

constituted first-degree murder." USSG § 2A2.1(a)(1).

The commentary to § 2A2.1 defines "first-degree murder" as "conduct that .

. . would constitute first-degree murder under 18 U.S.C. § 1111." USSG § 2A2.1,

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comment. (n.1). Section 1111(a) of title 18 of the United States Code states in

relevant part:

Murder is the unlawful killing of a human being with malice

aforethought. Every murder perpetrated by poison, lying in wait, or
any other kind of willful, deliberate, malicious, and premeditated
killing . . . is murder in the first-degree.

Any other murder is murder in the second degree.

18 U.S.C. § 1111(a).

C. Discussion
A finding of attempted first-degree murder required the district court to find

an exceedingly high mens rea that was not supported by the video footage.

"Although a murder may be committed without an intent to kill, an attempt to

commit murder requires a specific intent to kill." Braxton v. United States, 500

U.S. 344, 351 (1991).

A specific intent to kill often is proven by circumstantial evidence. But

simply citing reckless or dangerous – even if deliberate – conduct is insufficient to

satisfy that burden of proof. See United States v. Stroman, 420 F. App'x. 100, 105

(2d Cir. 2011) (district court erroneously applied the attempted murder guideline

based on a finding that the defendant "deliberately fired his weapon" and

concluded that "it look[ed] like [the defendant] was attempt[ing] to kill someone")

(internal quotations omitted); United States v. Kwong, 14 F.3d 189, 195-96 (2d Cir.

1994) ("Although the evidence of the defendant's guilt to attempted murder is not

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insufficient as a matter of law, the charge was fatally tainted by an instruction that

reckless indifference might serve as a substitute for proof of a specific intent to

kill."). "The fact that a deadly weapon was used does not ipso facto prove . . .

specific intent [to kill]." Kwong, 14 F.3d at 194.

The Supreme Court has characterized "specific intent" as "purposeful

conduct." Tison v. Arizona, 481 U.S. 137, 150 (1987); cf. Lockett v. Ohio, 438 U.S.

586, 625-26 (1978) (White, J., concurring in part, dissenting in part) (internal

citation omitted) ("[S]ociety has made a judgment, which has deep roots in the

history of the criminal law, distinguishing at least for purpose of the imposition of

the death penalty between the culpability of those who acted with and those who

acted without a purpose to destroy human life."). Thus, the intent to kill is not "a

species of foreseeability." Tison, 481 U.S. at 150.

The acts that this Court has concluded evinced a specific intent to kill were

far more certain to bring about death than was the conduct in this case. In Kwong, a

government cooperating witness sent a booby-trapped briefcase to an Assistant

United States Attorney. The district court described the incident as follows:

The device was rigged so that when opened, a sawed-off Marlin 70-P
rifle would fire a single .22 caliber, Stinger, high-velocity, high-power
round. Fortunately for the Assistant United States Attorney, a NYPD
detective assigned to the Drug Enforcement Agent and a DEA special
agent were present in the office when the package arrived. After being
alerted by Ms. Palmer's expression of surprise at the receipt of the
package, the officers moved the assistant away from the package and
examined it carefully.

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Detective Robert Hom opened the lid of the attache case slightly and,
standing to the side, peered inside. He discovered what appeared to be
a triggering mechanism. He carefully disengaged the leader from the
weapon's trigger to the mechanism itself. The attache was then safely
opened revealing its potentially deadly contents.

United States v. Kwong, 877 F. Supp. 96, 97 (E.D.N.Y. 1995), aff'd, United States

v. Kwong, 69 F.3d 663 (2d Cir. 1995) ("Kwong II").

Had the mechanism fired, it would almost certainly have caused the death of

the person who opened the briefcase. The district court in this case based its mens

rea finding in part on the discharge of several rounds. Yet the rifle in Kwong

would have released a single round that was arguably more deadly than the four

that Rodriguez discharged. The district court in this case also characterized the

shots as having been fired at close range when Rodriguez was no less than a few

feet away from a speeding car. The rifle barrel in Kwong, on the other hand, would

have been inches away from the face of the person who opened the briefcase.

Judge Lynch's decision in United States v. Jackson is on point. The

defendant in that case fired twenty to twenty-two rounds from a fully automatic

Mac-11 machine gun at a group of people immediately after an argument with a

man with whom the defendant had a feud. 351 F. Supp. 2d 108, 110 (S.D.N.Y.

2004). Others were involved in the argument, and some of them fired shots as well.

Id.

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Judge Lynch expressed skepticism that the facts as recited in the PSR could

have supported a deliberate attempt to commit first-degree murder. He observed:

[I]t is unknown, and unknowable without a much deeper inquiry,

whether [the defendant] intended to kill anyone at all, or whether he
merely fired wildly in a state of panic. Such a mental state could still
constitute malice, sufficient to make his crime murder if someone had
been killed. But [the defendant]'s shooting did not result in death, and
is charged as an attempt. Attempts under federal law require "that the
defendant had the intent to commit the crime" allegedly attempted.

Id. at 115-16 (internal citation omitted). Finding the evidence insufficient to apply

either attempted murder guideline provision, and declining to hold a hearing to

expand the record, the district court stated that it would be "offensive" to "decide

that a defendant . . . is 'really' guilty of one of the most heinous offense in the penal

code, without utilizing the full panoply of procedural protections applicable in

criminal trials." Id. at 116 (declining to hold hearing because "to require such a

trial in the more limited context of a sentencing for the lesser offense of possession

of a weapon would be remarkably inefficient").3

3
The distaste for judicial findings of attempted murder to enhance a defendant's
sentence is vividly expressed by Hon. Gerald W. Heaney in United States v.
Wilson. Judge Heaney noted:

This is not simply a case in which a federal prosecutor chose not to

charge an offense, or the offense was charged and the offender
acquitted, and then the prosecutor took a second bite of the apple by
introducing the conduct as relevant to sentencing. Rather, the
prosecutor could not even have charged Wilson with the alleged
attempted murder. The proper place for this charge is in state court,
where Wilson would have the right to a jury trial, to confront

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Judge Lynch's analysis in Jackson is persuasive and should be followed

here. The application of the attempted murder guideline requires a specific intent to

kill which is not satisfied by evidence of reckless or dangerous conduct, even if

that conduct was deliberate and could have resulted in injury or death. As in

Jackson, the evidence does not support the conclusion that Rodriguez had the

specific intent to commit murder, even under a preponderance of the evidence

standard. The criminal investigator working for the United States Attorney's Office

reviewed videos of the October 26 shooting and characterized the events as

follows:

a. O[n o]r about October 26, 2015, at approximately 4:40 p.m.,

RODRIGUEZ was standing on the north side of Beck Street in the
vicinity of 681 Beck Street. At first, RODRIGUEZ was leaning on the
hood of a car and looking away from the direction of oncoming
traffic. RODRIGUEZ then turned sideways and looked towards the
direction of oncoming traffic.

b. As a motor vehicle (the "Vehicle") approached from the direction

that RODRIGUEZ was looking towards, RODRIGUEZ took out a
firearm (the "Firearm") and shot approximately four shots at the
Vehicle (the "Shooting").

c. RODRIGUEZ then crossed Beck Street and walked eastbound on

Beck Street.

witnesses, and to have the necessary findings made beyond a
reasonable doubt.

United States v. Wilson, 992 F.2d 156 (8th Cir. 1993) (Heaney, J., concurring).

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A9. In the absence of direct evidence of Rodriguez's intent, the video is at least

equally supportive of an intent to cause bodily injury as it is of an intent to cause

death.

As in Jackson, the limited evidentiary record here did not "remotely permit

these matters to be authoritatively determined." Id. at 115. The district court's

conclusion rested entirely on its review of surveillance video footage, which

depicted Rodriguez firing in the direction of a speeding car, conduct that is

probative of a reckless indifference to human life rather than an intent to kill.

It appears that, at times, the district court agreed. First, the court quoted with

approval United States v. Shaw, 701 F.2d 367 (5th Cir. 1983), which noted that,

when the defendant in that case shot at "a passing car," he did so "without regard

for the safety of others" which "may support a conviction of first or second degree

murder." A104 (internal quotation marks omitted) (quoting United States v. Shaw,

701 F.2d 367 (5th Cir. 1983)). Second, the district court cited "the level of danger

and malice" of Rodriguez's conduct, which showed "seemingly no regard for

human life." A115. While Rodriguez's recklessness is evident, it does not support a

finding of a specific intent to kill, which is required to commit attempted murder.

Braxton, 500 U.S. at 351.

The fact that the car was speeding past Rodriguez as he shot at is further

indication that Rodriguez's conduct evinced a reckless indifference to human life

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rather than an intent to kill. The district court in this case repeatedly cited the fact

that the vehicle at which Rodriguez shot was moving. E.g., A104 (observing that

Rodriguez discharged a firearm "while the vehicle was in motion" and at "a

moving vehicle," and citing Shaw, which noted that the defendant in that case shot

at "a passing car"). It is unclear what about a moving car is particularly probative of

an intent to kill. Presumably, shooting at a moving car would be less likely to cause

the death of its occupants than shooting at a stationary one.

For all of these reasons, the record does not support the district court’s

decision to sentence Rodriguez as if he were guilty of the uncharged offense of

attempted second-degree murder by using U.S.S.G. § 2A2.1. Accordingly, the

sentence should be vacated and the matter remanded for resentencing.

CONCLUSION

For the foregoing reasons, the Court should vacate the sentence and remand

for resentencing.

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Dated: Brooklyn, New York

September 18, 2017

Respectfully submitted,

/s
EZRA SPILKE, ESQ
Attorney for Defendant-Appellant
ANTHONY RODRIGUEZ
315 Flatbush Avenue, No. 512
Brooklyn, New York 11217
(646) 762-9713

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CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure,

the foregoing brief contains 3,445 words according to the word count function of

the MS Word application and is, thus, in compliance with the type-volume

limitation set forth in Rule 32(a)(7)(B) of the Federal Rules of Appellate

Procedure. The typeface – 14-point, Times New Roman – complies with Rule

32(a)(5)(B) of the Federal Rules of Appellate Procedure.

Dated: Brooklyn, New York

September 18, 2017

Respectfully submitted,

/s
EZRA SPILKE, ESQ
Attorney for Defendant-Appellant
ANTHONY RODRIGUEZ
315 Flatbush Avenue, No. 512
Brooklyn, New York 11217
(646) 762-9713

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CERTIFICATE OF SERVICE

I certify that I electronically filed this September 18, 2017, the Opening

Brief of Appellant using the Court's CM/ECF system, which will send notification

of such filing to the following counsel:

Margaret M. Garnett, Esq.,

United States Attorney's Office
for the Southern District of New York
1 St. Andrew's Plaza
New York, NY 10007

Jason Richman, Esq.,

Assistant U.S. Attorney
Direct: 212-637-2589
United States Attorney's Office
for the Southern District of New York
1 St. Andrew's Plaza
New York, NY 10007

I further certify that I served a copy of the Opening Brief of Appellant and

Appendix onto the Defendant:

Anthony Rodriguez
74402-054
FCI Fort Dix
Federal Correctional Institution
P.O. Box 2000
Joint Base MDL, NJ 08640

/s
EZRA SPILKE, ESQ

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