938 F.2d 1 (1st Cir. 1991), 90-2020, United States v. Rosado-Sierra

Docket Nº:90-2020.
Citation:938 F.2d 1
Party Name:UNITED STATES, Appellee, v. Jorge L. ROSADO-SIERRA, Defendant, Appellant.
Case Date:July 03, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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938 F.2d 1 (1st Cir. 1991)

UNITED STATES, Appellee,

v.

Jorge L. ROSADO-SIERRA, Defendant, Appellant.

No. 90-2020.

United States Court of Appeals, First Circuit

July 3, 1991

Submitted May 23, 1991.

H. Manuel Hernandez on brief, San Juan, P.R., for defendant, appellant.

Daniel F. Lopez Romo, U.S. Atty., and Antonio R. Bazan, Asst. U.S. Atty., Hato Rey, P.R., on memorandum in support of motion for summary disposition, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

PER CURIAM.

Defendant Rosado-Sierra pled guilty on July 18, 1990, to one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, and was thereafter sentenced to 78 months in prison. He now appeals, arguing that the district court improperly failed to consider his mitigating role in the offense for the purposes of sentencing. The government has moved for summary disposition on the ground that defendant's argument is plainly without merit. We agree, and therefore summarily affirm the judgment below.

Under the Sentencing Guidelines, the district court determined that defendant's base offense level was 26. This calculation reflected the quantity of cocaine involved, a two-point upward adjustment for involvement of firearms in the offense, and a two-point downward adjustment for acceptance of responsibility. Defendant argues that his offense level should have been further reduced by two points under U.S.S.G. Sec. 3B1.2(b) because he was only a "minor participant" in the drug transaction. This provision applies to one whose role in the offense "makes him substantially less culpable than the average participant." Id. Sec. 3B1.2 (background commentary); see, e.g., United States v. Batista-Polanco, 927 F.2d 14, 23 (1st Cir.1991); United States v. Ocasio, 914 F.2d 330, 333 (1st Cir.1990). A defendant has the burden of proving entitlement to such a downward adjustment, see, e.g., id. at 332, and can prevail on appeal only by demonstrating

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that the district court's determination as to his role in the offense was clearly erroneous. See, e.g., United States v. Wright, 873 F.2d 437, 442-44 (1st Cir.1989). And where more than one reasonable inference may be drawn from undisputed facts, the court's choice from among supportable alternatives cannot be clearly erroneous. See, e.g...

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