United States v. Lopez-Rosado

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-2-2008
USA v. Lopez-Rosado
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3331
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"USA v. Lopez-Rosado" (2008). 2008 Decisions. Paper 914.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 07-3331
UNITED STATES OF AMERICA
v.
CARLOS LOPEZ-ROSADO,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 04-CR-00189-4
District Judge: The Honorable William W. Caldwell
Submitted pursuant to Third Circuit L.A.R. 34.1(a)
July 1, 2008
Before: RENDELL, SMITH, and FISHER, Circuit Judges
(Filed: July 2, 2008)
OPINION
SMITH, Circuit Judge.
Carlos Lopez-Rosado pleaded guilty to an information charging him with
distribution and possession with intent to distribute cocaine and marijuana in violation of
21 U.S.C. § 841. The United States District Court for the Middle District of Pennsylvania
1
sentenced Lopez-Rosado to 148 months of imprisonment. We vacated that sentence,
however, and remanded for resentencing in accordance with United States v. Booker, 543
U.S. 220 (2006). On remand, the prosecution offered testimony by a government agent
regarding the quantity of cocaine and marijuana at issue, as well as Lopez-Rosado’s role
in the offense. At the conclusion of that testimony, the District Court resentenced Lopez-
Rosado to 148 months. This timely appeal followed.1
Lopez-Rosado contends that he was simply a supplier of the cocaine and marijuana
and that the District Court erred by applying a two-level enhancement under U.S.S.G. §
3B1.1(c) for his role in the offense as an organizer, leader, manager, or supervisor.2 We
review for clear error the District Court’s factual findings with regard to a defendant’s
role in the offense. United States v. Belletiere, 971 F.2d 961, 964 (3d Cir. 1992). We
exercise plenary review of the District Court’s interpretation of the Sentencing
Guidelines. Id.
In United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992), we considered
whether a district court erred by enhancing a defendant’s offense level under U.S.S.G.
1
The District Court had jurisdiction under 18 U.S.C. § 3231. Appellate jurisdiction exists
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v. Cooper, 437 F.3d 324,
327-28 (3d Cir. 2006).
2
The government asserts that Lopez-Rosado waived this issue when he advised the
District Court at the resentencing that he had no other objections to the presentence investigation
report. Because defense counsel, only seconds later, also advised the District Court that this case
was remanded on three issues, including the leadership role, we conclude that the issue was not
waived.
2
§ 3B1.1 based on his role in the offense. We declared that “[c]learly, § 3B1.1 is intended
to apply to criminal activity engaged in by more than one participant.” Id. The
Commentary to U.S.S.G. § 3B1.1 instructs that “[t]o qualify for an adjustment under this
section, the defendant must have been the organizer, leader, manager, or supervisor of
one or more other participants.” U.S.S.G. § 3B1.1, applic. note 2 (emphasis added). At
the resentencing hearing, the government agent’s testimony established that Lopez-
Rosado acted in a supervisory capacity by directing the activity of a drug courier, who
transported significant amounts of cocaine from North Carolina to Pennsylvania. Nor has
Lopez-Rosado challenged that assertion. Accordingly, we find that the District Court did
not err by enhancing Lopez-Rosado’s offense level by two points under U.S.S.G. §
3b1.1(c) based on his supervision of at least one other participant. We will affirm the
judgment of the District Court.
3