United States v. Leonardo Rosado

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5319
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LEONARDO HECTOR ROSADO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00011-WO-1)
Submitted: October 27, 2011 Decided: November 4, 2011
Before SHEDD, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leonardo Hector Rosado was charged with possession
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (2006). Following a jury trial, Rosado was found
guilty and the district court sentenced him to 121 months’
imprisonment. Rosado timely appealed. We affirm.
On appeal, Rosado makes three claims: (1) the district
court erred in giving the jury an Allen * charge instead of
declaring a mistrial; (2) the district court erred in applying a
two-level sentencing enhancement for obstruction of justice; and
(3) Rosado’s sentence is substantively unreasonable because it
is greater than necessary to accomplish the goals of 18 U.S.C.
§ 3553(a) (2006).
This Court reviews a district court’s decision to give
an Allen charge and its content for abuse of discretion. United
States v. Hylton, 349 F.3d 781, 788 (4th Cir. 2003). An Allen
charge is generally given to a deadlocked jury to inform jurors
that there is no reason to believe another jury would be better
able to decide the case, that it is important that a unanimous
verdict be reached, and that all jurors should consider the
opinions of jurors who favor a different result. United States
v. Burgos, 55 F.3d 933, 935-36 (4th Cir. 1995). Rosado does not
*
Allen v. United States, 164 U.S. 492 (1896).
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challenge the content of the district court’s Allen charge; only
the court’s decision to issue the charge rather than to declare
a mistrial.
We accord great deference to the trial judge’s
decision in such matters because the judge “is in the best
position to assess . . . whether the jury will be able to reach
a just verdict if it continues to deliberate.” Renico v. Lett,
130 S. Ct. 1855, 1863 (2010). Here, the district court
carefully explained its exercise of that discretion, noting that
the jury had not spent many hours deliberating before declaring
its impasse, that it was “still early in the process,” and that
“further deliberations . . . w[ould] be appropriate.” Because
we perceive no abuse of discretion in the district court’s well-
reasoned decision to issue an Allen charge rather than to
declare a mistrial, we reject Rosado’s argument.
Next, Rosado contends that the obstruction of justice
sentencing enhancement was inappropriate because the evidence
did not support such an enhancement. When reviewing the
district court’s application of the Sentencing Guidelines, we
review findings of fact for clear error and questions of law de
novo. United States v. Llamas, 599 F.3d 381, 387 (4th Cir.
2010). A two-level enhancement under § 3C1.1 is warranted if a
defendant “willfully obstructed or impeded” the prosecution of
the offense of conviction with conduct relevant to that offense.
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U.S.S.G. § 3C1.1. Commission of perjury constitutes such an
obstruction. Id. at cmt. n.4(b). Application of the
obstruction enhancement based upon perjurious trial testimony
requires a finding by the sentencing court that the defendant,
while under oath, “(1) gave false testimony; (2) concerning a
material matter; (3) with the willful intent to deceive (rather
than as a result of confusion, mistake, or faulty memory).”
United States v. Jones, 308 F.3d 425, 428 n.2 (4th Cir. 2002).
“The sentencing court also must specifically identify the
perjurious statements and make a finding either as to each
element of perjury or that encompasses all of the factual
predicates for a finding of perjury.” Id. (internal quotation
marks omitted). Our review of the record leads us to conclude
that the district court did not err in finding certain portions
of Rosado’s trial testimony constituted obstruction of justice
under these standards.
Lastly, Rosado contends that his sentence is
substantively unreasonable. We review a district court’s
sentence for reasonableness under an abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007); see
also United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir.
2007). Upon ensuring that the sentencing court made no
significant procedural errors, we consider the substantive
reasonableness of the sentence imposed, taking into account the
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totality of the circumstances. Gall, 552 U.S. at 51. We
presume that a sentence within a properly-calculated Guidelines
range is reasonable. United States v. Allen, 491 F.3d 178, 193
(4th Cir. 2007). That presumption may be rebutted by a showing
“that the sentence is unreasonable when measured against the
§ 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d
375, 379 (4th Cir. 2006) (internal quotation marks omitted).
After a thorough review of the record, we conclude Rosado has
failed to rebut the presumption that his sentence within the
Guidelines range — indeed, at the bottom end of that range — is
substantively reasonable.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the Court and argument would not aid the decisional
process.
AFFIRMED
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