United States v. Rosado ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1465
UNITED STATES OF AMERICA,
Appellee,
v.
ANDRE ROSADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, U.S. District Judge]
Before
Torruella, Lynch and Lipez,
Circuit Judges.
Mark E. Howard and Kacavas Ramsdell & Howard, PLLC, on brief
for appellant.
Leah B. Foley, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on brief for appellee.
April 14, 2008
Per Curiam. After being convicted by a jury of various
drug and gun offenses and after being sentenced to 30 years'
imprisonment, defendant appeals from his conviction and sentence.
As to his conviction, he argues that the evidence was insufficient
to convict him of two counts in the indictment. As to his
sentence, he disputes the court's finding that the drug involved
was crack cocaine as opposed to some other form of cocaine base,
and he argues that the sentence was longer than necessary to serve
the purposes of sentencing and was inadequately explained. For the
reasons discussed below, we affirm the conviction and sentence.
Defendant was initially indicted on a single count of
distributing at least five grams of crack cocaine, in violation of
21 U.S.C. § 841(a)(1), and aiding and abetting others in doing so,
in violation of 18 U.S.C. § 2. That indictment arose from a
"controlled buy" by an undercover agent on February 23, 2005, and
was sealed pending defendant's arrest.
On April 6, 2005, in the course of defendant's arrest on
that initial indictment, another incident occurred, which
ultimately gave rise to a superseding indictment, adding three
additional counts: possession with intent to distribute at least
five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1);
possession of a firearm "in furtherance of" that drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1); and possession of
a firearm after being convicted of another felony, in violation of
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18 U.S.C. § 922(g)(1). A second superseding indictment later
eliminated all references to "crack cocaine" from the drug counts,
charging only that the drug involved was "cocaine base."
After a four-day jury trial, defendant was convicted on
all four counts. He was subsequently sentenced to 30 years'
imprisonment, five years below the applicable guideline sentencing
range. We assume the parties' familiarity with the underlying
facts and so will not rehearse them here, except in the context of
discussing the legal issues raised on appeal.
Defendant challenges the sufficiency of the evidence
supporting the jury's verdict on three points.1 With respect to
the charge of possession of cocaine base with intent to distribute,
arising from the incident of April 6, 2005, he argues that there
was insufficient evidence that he knew that the drugs were in the
car or that he intended to distribute them. With respect to the
charge of possession of a firearm "in furtherance of" that drug
charge, he argues that there was insufficient evidence that the
firearms were possessed "to advance or promote" the drug offense.
United States v. Grace, 367 F.3d 29, 35 (1st Cir. 2004).
"The familiar standard that applies to sufficiency-of-
the-evidence challenges requires that a court 'determine whether,
1
He expressly concedes that the evidence was sufficient to
prove beyond a reasonable doubt that he distributed cocaine base on
February 23, 2005, and that he was a felon in possession of a
firearm on April 6, 2005.
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after assaying all the evidence in the light most amiable to the
government, and taking all reasonable inferences in its favor, a
rational factfinder could find, beyond a reasonable doubt, that the
prosecution successfully proved the essential elements of the
crime.'" United States v. Dwinells, 508 F.3d 63, 72 (1st Cir.
2007) (quoting United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.
1994)). "When the record is fairly susceptible of two competing
scenarios, the choice between those scenarios ordinarily is for the
jury." Id. at 74. Accordingly, if "the evidence, taken in its
entirety, supports the judgment of conviction . . ., '[the
government] need not rule out other hypotheses more congenial to a
finding of innocence.'" Id. (quoting United States v. Gifford, 17
F.3d 462, 467 (1st Cir. 1994)).
Under those standards, defendant's sufficiency challenge
fails on all three points. The jury could have reasonably inferred
that defendant knew that the drugs were in the car from the
uncontroverted evidence that he was previously involved in drug
dealing, United States v. Spinosa, 982 F.2d 620, 628-29 (1st Cir.
1992), including the incident of February 23, 2005; that he was the
driver and sole occupant of the car in which the drugs were found,
United States v. Sanchez, 943 F.2d 110, 115 (1st Cir. 1991); that
the drugs were found right in front of the driver's seat, United
States v. Zavala Maldonado, 23 F.3d 4, 8 (1st Cir. 1994); and that
when the police confronted him and directed him to pull over, he
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attempted to flee, first by car and then on foot, and then
violently struggled to avoid arrest, showing his awareness of
guilt, United States v. Isler, 429 F.3d 19, 25 (1st Cir. 2005).
See generally United States v. Robinson, 473 F.3d 387, 399 (1st
Cir. 2007) (holding that knowing possession may be inferred from
circumstantial evidence). The jury could well have found that
evidence to outweigh the evidence pointing the other way--primarily
that the car was registered to someone else--particularly since
defendant was known to frequent the address to which the car was
registered.
The jury could also have reasonably inferred that the
drugs found in the car--44.3 grams of cocaine base, packaged in the
form of twelve "eight balls"2--were intended for distribution
rather than personal use. There was expert testimony that such a
large amount, packaged in that manner, would ordinarily be
possessed by a dealer rather than an end-user. United States v.
García-Carrasquillo, 483 F.3d 124, 130 n.12 (1st Cir. 2007). That
inference is further supported by the presence in the car of guns,
United States v. Andrade, 94 F.3d 9, 13 (1st Cir. 1996), which, the
expert testimony showed, are often used by drug dealers to avoid
interference with drug transactions, and by the absence of any
implements with which to smoke the crack, id.2
There was testimony at trial that an eight ball weighs about
one-eighth of an ounce, 3.5 grams, and that the street price for an
eight ball in the area at the time was about $150 to $200.
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Finally, there was ample evidence from which the jury
reasonably could have inferred that defendant possessed one or two
guns "in furtherance" of the April 6th drug offense. Although
"mere presence" of the guns at the scene of the drug offense is not
sufficient, United States v. Delgado-Hernandez, 420 F.3d 16, 25
(1st Cir. 2005), there was more here, albeit circumstantial. In
particular, the evidence showed that both guns were loaded and
located in close proximity to the defendant and to the drugs and
therefore could easily have been used to resist any effort, by the
police or others, to interfere with the intended drug distribution.
See, e.g., United States v. Robinson, 473 F.3d at 399-400 (finding
such evidence sufficient to show that a gun was possessed "in
furtherance of" another crime); United States v. Felton, 417 F.3d
97, 105, 106 (1st Cir. 2005) (same). In addition, as the
prosecution argued at trial, the jury could have inferred that the
guns were possessed in connection with the April 6th drug offense
from the evidence that defendant also possessed a gun during the
February 23rd drug transaction and from the expert testimony that
drug dealers commonly have guns to protect the drugs they intend to
distribute.
Defendant's sentencing challenges fail as well.
Although, on appeal, he faults the district court's finding that
the substance involved in the drug offenses was crack, as opposed
to some other form of cocaine base, no such argument was made at
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sentencing. Accordingly, that finding is reviewable only for plain
error. No error, plain or otherwise, occurred. In making its
findings, the district court permissibly relied on the presentence
report, to which defendant posed no relevant objection. United
States v. Jimenez, 512 F.3d 1, 7 (1st Cir. 2007). And that
report's repeated statements that the substance was crack were, in
turn, amply supported by competent testimony at trial that the
substance was off-white and chunky and therefore appeared to be
crack. See, e.g., United States v. Brown, 450 F.3d 76, 80-81 (1st
Cir. 2006). Moreover, any error was not sufficiently prejudicial
to satisfy the plain error standard, since defendant's guideline
range resulted not from the nature of the substance involved but
from his status as a career offender, which defendant did not
challenge below or on appeal. Jimenez, 512 F.3d at 8.
Nor was the ultimate sentence procedurally or
substantively unreasonable under the standards articulated by this
court in United States v. Jiménez-Beltre, 440 F.3d 514 (1st Cir.
2006)(en banc), and, more recently, by the United States Supreme
Court in Rita v. United States, 127 S. Ct. 2456 (2007), and Gall v.
United States, 128 S. Ct. 586 (2007). The district court expressly
addressed--and adopted, in part--defendant's argument that a
bottom-of-guidelines sentence of 35 years was longer than necessary
to serve the purposes of sentencing set forth in 18 U.S.C. §
3553(a). It was for that reason that the court imposed a sentence
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five years below the guideline range. The court explained its
decision not to vary further as based, "first and foremost," on its
belief that a very long sentence was necessary to protect the
public, given defendant's violent criminal record, which included
a conviction for conspiracy to commit murder, in which defendant
participated in beating the victim to death. Although the court
indicated that its decision was also influenced by the guideline
range, particularly the career-offender guideline, consideration of
that range remains not only permissible but required. Gall, 128
S. Ct. at 596; Rita, 127 S. Ct. at 2467; Jiménez-Beltre, 440 F.3d
at 518. Since its ultimate sentence was below the guideline range,
the court obviously did not deem the guidelines in general or the
career offender guideline in particular to be mandatory. To the
extent that defendant quibbles with the weight afforded to the
guidelines as opposed to other factors, such balancing, absent
abuse of its discretion, is for the district court. Gall, 128 S.
Ct. at 597-98; United States v. Dixon, 449 F.3d 194, 205 (1st Cir.
2006). Seeing no such abuse under the circumstances presented
here, we affirm the sentence.
Affirmed. See 1st Cir. R. 27.0(c)
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