United States v. Rosario-Otero

United States Court of Appeals
For the First Circuit
No. 11-2242
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO ROSARIO-OTERO, a/k/a Hotdog,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Howard, Selya and Thompson,
Circuit Judges.
Raymond L. Sanchez Maceira for appellant.
Olga B. Castellón-Miranda, Assistant United States Attorney
with whom Rosa Emilia Rodriguez-Velez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney and Julia M.
Meconiates, Assistant United States Attorney, were on brief, for
appellee.
September 4, 2013
HOWARD, Circuit Judge. Julio Rosario-Otero appeals the
sentence imposed after his conviction for possession with intent to
distribute illegal narcotics. He claims that the sentencing court
should have granted a continuance to allow him to marshal necessary
evidence. He also argues that the sentencing court's
individualized finding as to the amount of drugs that he could have
reasonably foreseen was erroneous. Neither argument persuades us.
We will, however, vacate Rosario-Otero's sentence as to the term of
supervised release sua sponte and remand for the limited purpose of
recalculating that term.
I.
This case is before us for the second time. See United
States v. Fernández-Hernández, 652 F.3d 56 (1st Cir. 2011). As the
underlying facts of Rosario-Otero's conviction are recounted in our
previous opinion, we limit ourselves to the facts relevant to this
appeal.
1. Prior History
Rosario-Otero was a member of the "Los Dementes" drug
trafficking organization operating in the municipalities of Cataño
and Guaynabo in Puerto Rico. The government charged him and other
members of the organization with various conspiracy and drug
counts. A jury convicted Rosario-Otero of conspiracy to possess
with intent to distribute, see 21 U.S.C. § 846, and possession with
intent to distribute both cocaine and crack cocaine, see id. §
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841(a)(1). The jury made specific drug quantity findings for the
possession offenses: at least 150 grams of crack cocaine and at
least 5 kilograms of cocaine. The district court, based on the
jury's finding as to drug quantity, sentenced him to 151 months'
incarceration and 10 years' supervised release. Rosario-Otero
challenged his convictions in a Rule 29 motion, which the district
court denied.
On appeal, we upheld Rosario-Otero's convictions both for
participating in the drug conspiracy and for the substantive
possession offenses. We also concluded, however, "that the
evidence was insufficient to support a finding, beyond a reasonable
doubt, that Rosario was responsible for the elevated drug
quantities of which he was convicted, i.e., at least one hundred
fifty grams of crack-cocaine and five kilograms of cocaine."
Fernández-Hernández, 652 F.3d at 70. Consequently, we vacated
Rosario-Otero's sentence and remanded for resentencing. In doing
so, we "express[ed] no view as to the [drug] quantities the
sentencing court may properly attribute to Rosario when the
standard, unlike the standard for conviction, is preponderance of
the evidence." Id. at 71 n.14.
2. Resentencing
We issued our decision in Fernández-Hernández on June 30,
2011. On August 25, Rosario-Otero requested that the district
court reschedule his resentencing hearing. He also requested a
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transfer from the mainland United States to Puerto Rico. The court
granted both requests, setting the hearing for October 5, 2011.
Rosario-Otero arrived in Puerto Rico one week before the hearing.
However, due to scheduling conflicts, he did not meet with his
counsel until the night before the resentencing hearing.
At the hearing the following day, Rosario-Otero, through
his counsel, requested a continuance. This oral request was not
accompanied by any written request, nor had Rosario-Otero
previously discussed a continuance with the government.
Nonetheless, Rosario-Otero's counsel argued that a continuance was
necessary because Rosario-Otero's recent arrival in Puerto Rico had
not given him enough time to prepare for the resentencing. In
particular, counsel expressed a need to call Juan Rivera-Gómez, a
co-defendant at trial, to testify. When the district court asked
where Rivera-Gómez was, Rosario-Otero's counsel responded, "He's in
Miami, I believe." The district court denied this continuance,
concluding that, notwithstanding Rosario-Otero's delayed arrival in
Puerto Rico, he had ample time to prepare for the resentencing,
including calling any witnesses.
The government then presented evidence regarding the
amount of drugs that would have been foreseeable to Rosario-Otero
based on his involvement in the trafficking organization. William
Rosario García ("William"), one of the trial witnesses, testified
at the resentencing hearing that the Los Dementes organization
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processed roughly one kilogram of cocaine into crack cocaine each
week at "Apartment 50," located at the Juana Matos housing project.
William also testified that he saw Rosario-Otero go into this
apartment several times a week, often to pick up packaged drugs.
William testified that Rosario-Otero owned a specific
drug point in Cataño. He learned this information from the drug
sellers who worked at that drug point. Moreover, on one occasion
William washed Rosario-Otero's car and in return Rosario-Otero gave
him crack cocaine in vials with gray caps. According to William,
this matched the color of the drug vials distributed at this
particular drug point. At the time, Rosario-Otero told William
that these vials came from his drug point, but did not specify
which drug point he owned.
Finally, William stated that he saw Rosario-Otero handle
drugs on two additional occasions. In both instances, Rosario-
Otero asked William to process cocaine into crack cocaine and taste
it for him. One of these encounters occurred at the Coqui Housing
Project across the street from the Juana Matos Housing Project.
William did not specify the location of the second encounter. He
also admitted that he had failed to mention this second encounter
during his trial testimony.
On cross-examination, Rosario-Otero sought to demonstrate
inconsistencies between William's trial testimony and his testimony
at resentencing. In particular, he noted how William's testimony
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had become more specific in a number of respects since trial.
William had been unsure about the various colors of drug caps at
trial, yet exhibited no such hesitancy at resentencing. Moreover,
at trial he had testified to having seen Rosario-Otero at Apartment
50 at least two times, yet at resentencing he revised that estimate
to "[s]everal times a week."
William was the only witness at the resentencing hearing.
At the conclusion of his testimony, Rosario-Otero asked to call
Agent Cristobal Rodriguez. Agent Rodriguez had previously
interviewed William during the investigation of the Los Dementes
organization, and Rosario-Otero hoped that Agent Rodriguez could
show how William's testimony had changed over time. However,
Rosario-Otero had not subpoenaed Agent Rodriguez and the district
court refused to continue the proceedings in order to bring him in.
Rosario-Otero's counsel argued that the shifting substance of
William's testimony raised an unforeseen necessity, but the court
determined that William's testimony contained "the same or musical
variations of the same" testimony that he had offered at trial.
The district court further found William's testimony credible.
The court, making "a conservative measure" of the amount
of cocaine attributable to Rosario-Otero, concluded that
Rosario-Otero could have foreseen the possession and distribution
of 5 to 15 kilograms of cocaine, and imposed a sentence of 151
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months' incarceration and 10 years' supervised release, which
matched the original sentence. This appeal followed.
II.
Rosario-Otero asks us to vacate his sentence and remand
the case to a different district court judge on the grounds that
the district court (1) abused its discretion in failing to grant
the request for a continuance that he presented at the beginning of
the resentencing hearing; and (2) erred in its drug quantity
determination.
A. Denial of Continuance
We review the district court's denial of a continuance
for abuse of discretion. United States v. Fink, 499 F.3d 81, 89
(1st Cir. 2007). When evaluating a request to continue, one
consideration is "the reasons contemporaneously presented in
support of the request for the continuance." West v. United
States, 631 F.3d 563, 568 (1st Cir. 2011) (citation omitted)
(internal quotation marks omitted). A court also considers the
amount of time needed for preparation compared to the actual time
available; how diligently the movant used that time and whether he
contributed to his perceived predicament; the complexity of the
case; other available assistance; the probable utility of a
continuance; inconvenience to others; and the likelihood of
injustice if there is no continuance. See id. "Requests for
continuances of sentencing are disfavored given the district
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court's obligation to 'impose sentence without unnecessary delay.'"
United States v. Espinola, 242 F. App'x 709, 711 (1st Cir. 2007)
(quoting Fed. R. Crim. P. 32(b)(1)), judgment vacated on other
grounds by Espinola v. United States, 552 U.S. 1240 (2008).
The district court did not abuse its discretion in
denying Rosario-Otero's request for a continuance. Rosario-Otero's
contemporaneous justification for a continuance was that he needed
to bring in Juan Rivera-Gómez as a witness, but it appears that the
real issue was his failure to meet with his counsel until the night
before the resentencing hearing. This was not a compelling reason
to grant his belated request. Indeed, the circumstances that
prevented Rosario-Otero from meeting with his counsel until the
eleventh hour would have been apparent long before the day of the
hearing. In particular, Rosario-Otero had plenty of time to inform
the court that his transfer to Puerto Rico was delayed by about one
month. If he anticipated that this delay could hamper his ability
to present evidence at resentencing, he should not have waited
until the day of the hearing to make an oral request for a
continuance.
Rosario-Otero argues that the government is partially to
blame for his inability to gather the appropriate witnesses because
it did not inform him of the evidence it would present at
resentencing. This claim, which the government disputed at the
hearing and again in its appellate brief, is belied by the record.
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At sentencing, Rosario-Otero's counsel said that he was unaware of
the evidence that the government would present that day. When
asserting the need for Rivera-Gómez's testimony, however, he
acknowledged that "we received evidence from William Rosario
explaining to us [the evidence relating to "Apartment 50"]. [And]
Juan Rivera-Gómez, he was the owner of that apartment." Rosario-
Otero was attuned to what the government would try to prove at
resentencing, and there is nothing to suggest that the government
prejudiced his ability to prepare for the hearing.
Moreover, Rosario-Otero has not shown the probable
utility of a continuance or any injustice resulting from its
denial. Rosario-Otero admitted that he had not spoken with Rivera-
Gómez prior to the resentencing -- or that he even knew where
Rivera-Gómez was located -- so it cannot be said with any
confidence that Rivera-Gómez's hypothetical testimony, if
forthcoming, would have changed the result of Rosario-Otero's
resentencing.1
1
Rosario-Otero made a second request for a continuance at the
close of William's testimony, claiming that he needed to call Agent
Rodriguez to impeach William. The same deficiencies that sink his
first request for a continuance apply with equal force to this one.
In addition, as we explain later, there was no meaningful
inconsistency between William's trial testimony and his sentencing
testimony -- further evidence that the district court did not abuse
its discretion in denying this second request for a continuance.
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B. Drug Quantity Determination
We review a district court's factual findings at
sentencing, including drug quantity, for clear error, United States
v. Cintrón-Echautegui, 604 F.3d 1, 5 (1st Cir. 2010), which arises
only when "we form a strong, unyielding belief that a mistake has
been made." United States v. Marquez, 280 F.3d 19, 26 (1st Cir.
2002) (quoting Cumpiano v. Banco Santander, 902 F.2d 148, 152 (1st
Cir. 1990)). "The sentencing court must determine drug quantity
only by a preponderance of the evidence." Cintrón-Echautegui, 604
F.3d at 6.
The district court did not commit clear error in arriving
at its drug calculation. Although there was testimony that the Los
Dementes organization distributed a kilogram of cocaine each week
for several years, the district court limited its drug finding to
a total of between 5 and 15 kilograms of cocaine. The government
produced sufficient evidence for the district court to conclude
that such amount was reasonably foreseeable to Rosario-Otero.
William testified that Rosario-Otero was at Apartment 50
several times each week, often to pick up packaged drugs.
Apartment 50 was the center of activity for Los Dementes, and
Rosario-Otero's repeated presence there indicates his awareness of
the scope of the trafficking organization. In addition, William
provided testimony that Rosario-Otero ran a drug point for Los
Dementes. Whereas we previously found William's trial testimony
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regarding Rosario-Otero's drug point lacking in detail or
corroboration, Fernández-Hernández, 652 F.3d at 70, at the
resentencing hearing William gave concrete explanations for how he
knew this fact. He explained not only that sellers at the drug
point identified Rosario-Otero as the owner, but also that Rosario-
Otero gave William drug vials matching those sold at the drug
point. William also recounted several occasions when Rosario-Otero
personally gave him small amounts of cocaine to process into crack
and to test its potency. Based on this fact, the sentencing court
could determine that Rosario-Otero's involvement went beyond merely
picking up drugs to sell and extended to processing the drugs.
Taken in the aggregate, this evidence supports the sentencing
court's finding as to foreseeability.
Rosario-Otero's main argument on appeal is that William's
testimony changed between trial and resentencing. We disagree with
this characterization. While William's resentencing testimony was
more detailed than his trial testimony, it was not inconsistent.
Moreover, the court was not required to reject William's
explanation that he remembered new facts that he had failed to
mention at trial. Rosario-Otero had the opportunity to cross-
examine William, and could have used the trial transcript to
impeach his testimony if there were any material inconsistencies.
Rosario-Otero nevertheless claims that, even if the
testimony was not inconsistent, William's improved memory at
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resentencing raises credibility issues that the district court
should have factored into its analysis. But the district court was
not oblivious to the question of William's credibility; it simply
reached a conclusion contrary to Rosario-Otero's. Such credibility
determinations are left to the sentencing court. See United States
v. Platte, 577 F.3d 387, 392-93 (1st Cir. 2009) ("In conducting [a
drug quantity calculation,] credibility determinations are part of
the sentencing court's basic armamentarium."). There was no clear
error in the sentencing court's drug quantity calculation.
C. Term of Supervised Release
Based on its drug quantity finding, the district court
imposed a sentence of 151 months' incarceration and a 10 year term
of supervised release. While the district court committed no
reversible error in calculating Rosario-Otero's prison sentence,
there was an unnoticed error in its calculation of the term of
supervised release, which we now vacate. The applicable statutory
section, 21 U.S.C. § 841, establishes different sentencing ranges
based on the drug quantity involved in the crime. In the case of
cocaine, possession without a finding as to quantity calls for "a
term of supervised release of at least 3 years" or, if there was a
prior conviction, "at least 6 years." 21 U.S.C. § 841(b)(1)(C).
A drug quantity finding of 5 kilograms or more of cocaine (as the
sentencing court found) requires a mandatory minimum term of
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supervised release of 5 years, or 10 years with a prior conviction.
Id. § 841(b)(1)(A).
For reasons that are unclear to us, the Pre-sentence
Investigation Report (PSI Report) stated that Rosario-Otero faced
a mandatory minimum term of supervised release of 10 years given a
finding of at least 5 kilograms of cocaine.2 The district court
adopted this recommendation without any explanation. The mandatory
minimum term of supervised release should have been 5 years, since
Rosario-Otero had no prior convictions on his record according to
the PSI Report. Even if he had a prior conviction, the government
would have been required to give notice that it would rely on that
prior conviction to increase his sentence. See 21 U.S.C. § 851;
Suveges v. United States, 7 F.3d 6, 10 (1st Cir. 1993) ("The filing
of . . . an information notice [under 21 U.S.C. § 851] is
jurisdictional."). The probation officer seems to have committed
a simple error in calculating the mandatory minimum, and the
district court relied on that incorrect calculation in imposing a
term of supervised release.
2
The PSI Report, which was prepared for the original
sentencing, relied on the jury's finding of elevated drug
quantities, which we vacated in United States v. Fernández-
Hernández, 652 F.3d 56 (1st Cir. 2011). There was no new PSI
Report prepared for resentencing. The sentencing court, however,
made the identical factual finding as to drug quantity and imposed
the identical sentence, so we consider the original PSI Report to
understand the sentencing court's rationale.
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Though Rosario-Otero did not raise this issue below or on
appeal, we consider this error both plain enough and weighty enough
to merit our review sua sponte. The four-pronged test for plain
error review requires that the (1) "error" is (2) "plain" and (3)
"affects substantial rights," and that the error (4) "seriously
affects the fairness, integrity or public reputation of judicial
proceedings." United States v. Olano, 507 U.S. 725, 732 (1993)
(citations omitted) (internal quotation marks and alterations
omitted). The fourth prong incorporates a standard that a court
may use to evaluate whether to raise an issue sua sponte. See
United States v. Atkinson, 297 U.S. 157, 160 (1936). This easily
avoidable error doubled the minimum term of Rosario-Otero's
supervised release. Having discovered the error, failure to
correct it would reflect poorly on our ability to dispense justice,
even if it has not been briefed by either side. See United States
v. Matos, 611 F.3d 31, 37 (1st Cir. 2010) (vacating a sentence
where the term of supervised release exceeded the statutory
maximum); United States v. Rodriguez, 489 F. App'x 528, 531 (3d
Cir. 2012) (vacating a sentence where the PSI Report erroneously
doubled the mandatory minimum term of supervised release); see also
United States v. Barnes, 251 F.3d 251, 261 n.5 (1st Cir. 2001)
(holding that error in calculating a term of supervised release
constitutes plain error). Accordingly, we vacate the term of
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supervised release and remand the case to the district court to
recalculate that element of Rosario-Otero's sentence.3
III.
For the foregoing reasons, we affirm the sentence as to
its term of incarceration; we vacate the sentence as to the term of
supervised release and remand the case for further action
consistent with this opinion.
3
In recalculating the term of supervised release, the
district court must take heed of the Supreme Court's recent
decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), which
held that "any fact that increases the mandatory minimum is an
'element' that must be submitted to the jury," id. at 2155. Thus,
if the district court seeks to impose a mandatory minimum term of
supervised release, it must rely only on the facts found by the
jury. The Supreme Court noted, however, that the holding in
Alleyne "does not mean that any fact that influences judicial
discretion must be found by a jury. We have long recognized that
broad sentencing discretion, informed by judicial factfinding, does
not violate the Sixth Amendment." Id. at 2163. "While such
findings of fact may lead judges to select sentences that are more
severe than the ones they would have selected without those facts,
the Sixth Amendment does not govern that element of sentencing."
Id. at 2161 n.2.
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