United States v. Romero

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-30-2004
USA v. Romero
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4554
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4554
UNITED STATES OF AMERICA,
v.
HECTOR ROMERO
a/k/a
“King Sacci”
Hector Romero,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(Dist. Court No. 0314-1:02-cr-198-02)
District Judge: Hon. Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
June 25, 2004
Before: NYGAARD, MCKEE and CHERTOFF, Circuit Judges
(Filed: June 30, 2004)
OPINION
1
CHERTOFF, Circuit Judge
Appellant Hector Romero appeals from a judgment of sentence imposing a 120-
month term of imprisonment, a $200 special assessment, and a $300 fine. He argues that
the District Court erred (1) when determining the amount of cocaine that should be used
to calculate his sentence under the United States Sentencing Guidelines (“Guidelines”);
and (2) by imposing a sentence that differed from those his co-defendants received. For
the following reasons, we will affirm.
I.
On October 23, 2002, a grand jury indicted Hector Romero, Vladamir Marquez,
Jason Santos, and Shana May on charges of (1) manufacturing, distributing, and
possessing with the intent to manufacture and distribute five kilograms or more of
cocaine, in violation of 21 U.S.C. § 841(a)(1); and (2) conspiring to distribute and
possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846. After
initially pleading not guilty, Romero entered into a plea agreement with the government.
Pursuant to the plea agreement the government filed a superceding information charging
Romero with violations of the interstate transportation in aid of racketeering statute, 18
U.S.C. § 1952(a)(3), and Romero pled guilty to the charges.
The others charged in the original indictment took differing paths. The federal
charges against Marquez were eventually dismissed. May pled guilty and (after the
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government moved for a downward departure) she received a sentence of 18 months
imprisonment, a $100 special assessment, and one year of supervised release. As of the
time Romero filed this appeal, Santos’s case appeared to be heading to trial but the
District Court had granted his motion for a continuance.
Romero’s sentencing hearing occurred before the District Court on November 21,
2003. Romero disputed the quantity of drugs set forth in his Presentence Report, which
reported the amount of drugs involved as 24 kilograms. He conceded, however, that he
had distributed or possessed with intent to distribute 4.5 kilograms. App. 85a-87a. The
Court therefore calculated Romero’s Guidelines sentence based on that amount.
II.
Romero first argues that the District Court erred in calculating his sentence based
on 4.5 kilograms of cocaine. As we have explained, however, Romero conceded at his
sentencing hearing that he distributed or possessed with the intent to distribute 4.5 grams.
Yet at the hearing he stated that he “returned” two kilograms. Romero argues that this
statement creates ambiguity that precluded the District Court from determining the
quantity of drugs by a preponderance of the evidence. We disagree. Romero’s admission
was more than adequate for the District Court to find by a preponderance of the evidence
that 4.5 kilograms of cocaine were involved. The District Court’s factual determination
was not clearly erroneous. See, e.g., United States v. Torres, 209 F.3d 308, 311 (3d Cir.
3
2000).
Alternatively, Romero urges us to adopt a rule that “drugs possessed for
distribution should not be counted for guideline purposes if they are returned to the
original supplier for credit after the possessor is arrested.” Romero Br. 17. We need not
dwell on this argument; simply stating it reveals its demerits. Suffice it to say that when a
person possesses illegal drugs with the intent to distribute them, that person’s culpability
is no less however he finally disposes of the drugs.
Romero’s second argument is that the District Court erred when it imposed a
sentence that differed from the sentences his co-defendants received. We noted the
following, however, in United States v. Yeaman:
Generally, disparities in sentences among co-defendants do not constitute a
valid basis for downward departure in the absence of any proof of
prosecutorial misconduct. In fact, several other circuits have rejected
challenges to shorter sentences for similarly situated co-defendants when
the shorter sentences were a result of plea bargaining or government
assistance.
248 F.3d 223, 230 (3d Cir. 2001) (citations omitted); see also United States v.
Drozdowski, 313 F.3d 819, 824 n.3 (3d Cir. 2002); United States v. Hart, 273 F.3d 363,
379 (3d Cir. 2001). Romero makes no allegations of prosecutorial misconduct. Rather, he
attempts to distinguish this case on the basis that his sentence differed from his co-
defendants due to “charge bargaining,” the practice where the government agrees to
charge a defendant with a lesser crime in exchange for a guilty plea. We see no basis to
give weight to the distinction Romero urges. See United States v. Stanley, 928 F.2d 575,
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582-83 (2d Cir. 1991), cited in Yeaman, 248 F.3d at 230. The alleged disparity is not a
valid basis to challenge Romero’s sentence.
III.
For the reasons stated above, we will affirm the District Court’s judgment.
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