U.S. v. Rosa

• Decision Date: 19 August 1997
• Docket Number: No. 1486,D,1486
• Citation: 123 F.3d 94,1997 WL 469962
• Parties: UNITED STATES of America, Appellee, v. Deinner ROSA, Defendant-Appellant. ocket 96-1530. . Submitted/
• Court: U.S. Court of Appeals — Second Circuit

Page 94

123 F.3d 94

10 Fed.Sent.R. 228

UNITED STATES of America, Appellee, v. Deinner ROSA, Defendant-Appellant.

No. 1486, Docket 96-1530.

United States Court of Appeals Second Circuit.

Submitted/Argued May 7, 1997.

Decided Aug. 19, 1997.

Clover M. Barrett, Brooklyn, NY, for Defendant-Appellant.

Dolan L. Garrett, Assistant United States Attorney, Brooklyn, NY, Zachary W. Carter, United States Attorney, Peter A. Norling, Assistant United States Attorney, of counsel, for Appellee.

Before FEINBERG, OAKES and LEVAL, Circuit Judges.

OAKES, Senior Circuit Judge:

The central issue presented in this appeal concerns the validity of an appeal waiver provision in plea agreements used by the United States Attorney's Office for the Eastern District of New York. Appellant Deinner Rosa appeals the sentence entered July 31, 1996, by I. Leo Glasser, Judge, sentencing him to 27 months' imprisonment, three years' supervised release, and a $50 special assessment. Judge Glasser increased Rosa's base offense level by three levels, reasoning that the sale and possession of guns by Rosa's co-conspirator constituted relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B), and thus warranted the three-level increase in accordance with § 2K2.1(b)(1)(C). Rosa asserts that this increase was improper. The Government, however, responds that, under the terms of his plea agreement, Rosa has explicitly waived the right to appeal any sentence within a Guidelines range as determined by the sentencing court.

Despite our serious reservations with respect to the waiver provision, we deny Rosa's appeal.

I Facts

On May 15, 1995, one Daniel Espinal brought a confidential informant to 2911 Fulton Street in Brooklyn, New York, having previously told the informant that Espinal could provide him with firearms. Espinal and the informant entered the premises, where Espinal introduced the informant to a man who sold him a .380 semi-automatic pistol, which he had taken from a drawer. While negotiating to buy the pistol, the informant saw an additional four firearms--one assault rifle, two semi-automatic pistols and a revolver--inside the drawer. After the sale, Espinal took the informant to an apartment on the second floor of 2891 Fulton Street and there informed him that he should come to that apartment if he were interested in buying cocaine.

On May 25, 1995, the informant met Espinal in front of 2911 Fulton Street. The two entered the premises, where the same man who had sold the weapon on May 15 sold the informant a second .380 caliber semi-automatic pistol. The informant again saw several small-caliber firearms in a drawer.

On June 1, 1995, an undercover police officer was introduced to Espinal by the informant in front of 2911 Fulton Street. The undercover officer informed Espinal that he was interested in buying three guns, and Espinal told him that the guns would be delivered soon. Shortly thereafter, Appellant Deinner Rosa arrived, and Espinal informed the undercover that Rosa was "the man with the guns."

Rosa asked Espinal who the undercover officer and the informant were and whether they could be trusted. Espinal informed Rosa that he had done business with them and that they could be trusted. The four men then went inside 2891 Fulton Street. While in the hallway, Rosa informed the undercover officer that he had only one gun but that, in the future, he could supply the undercover with any firearms he wanted, including machine guns and silencers. Rosa then entered the second-floor apartment that Espinal had earlier identified to the informant as the place in which to purchase cocaine. Shortly thereafter, Rosa exited the apartment and handed the undercover a box containing a .380 caliber semi-automatic pistol loaded with five rounds of ammunition. The undercover officer thereafter paid Espinal $700.

On June 5, 1995, Espinal agreed to sell the undercover officer four guns. Later that day, the two met in front of 2911 Fulton Street. Espinal told the undercover that the supplier had left because the undercover was late but that he could still supply a gun if the undercover were interested. Espinal and the officer walked to a nearby apartment building where Espinal introduced the undercover officer to another man, who subsequently produced a .38 caliber revolver.

Based on the June 1 gun sale, the undercover officer obtained a search warrant for the second-floor apartment at 2891 Fulton Street. On June 16, 1995, law enforcement officers executed the warrant. As a result of that search, Appellant Rosa was arrested and a 9mm semi-automatic pistol was recovered.

On July 14, 1995, Rosa and Espinal were indicted for engaging in the business of dealing in firearms in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). In the same indictment, Rosa and three others were also charged with conspiring to possess with the intent to distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii). The gun count carried a maximum penalty of five years' imprisonment and no minimum, while the narcotics count carried a minimum penalty of ten years and a maximum of life imprisonment.

On October 17, 1995, Rosa pled guilty to engaging in the business of dealing in illegal firearms pursuant to a written plea agreement. The plea agreement estimated the likely adjusted offense level to be 14, with a resulting sentencing range of 15 to 21 months' imprisonment. This estimate calculated a base offense level of 12 pursuant to § 2K2.1(a)(7), with a three-level increase for a total of eleven guns pursuant to § 2K2.1(b)(1)(C), and an increase of two levels, pursuant to § 2K2.1(b)(4), because a serial number on one gun was obliterated, resulting in an adjusted base offense of 17. The plea also anticipated a three-level reduction for acceptance of responsibility pursuant to § 3E1.1(a) and (b), for a final estimated adjusted offense level of 14. The plea agreement also included the following provision:

The defendant agrees not to file an appeal in the event that the Court imposes a sentence within or below the applicable Sentencing Guidelines range as determined by the Court.

The Probation Department's Pre-Sentence Report ("PSR") recommended calculations which resulted in an offense level significantly different from that anticipated in the plea agreement. The PSR stated that one of the weapons for which Rosa was responsible was a firearm described in 18 U.S.C. § 921(a)(30), which led to a base offense level of 18 rather than the previously estimated level of 12. Three levels were added under § 2K2.1(b)(1)(C) because the offense involved at least eight firearms: the three firearms sold on May 1, May 25, and June 5; the one sold by Rosa on June 1; and the four observed during the May 15 sale. Two levels were added for the obliterated serial number; another two levels were added pursuant to § 3C1.2 because Rosa resisted arrest and pointed a firearm at the arresting agents. ¹ This took the resulting recommended adjusted offense level up to 25. Finally, the PSR recommended a three-level reduction for acceptance of responsibility, which resulted in an adjusted offense level of 22--much higher than the offense level 14 which Rosa had expected.

The court accepted the PSR's recommended base offense level of 18 because of the type of weapons involved, as well as the three-level § 2K2.1(b)(1)(C) increase. Rosa objected to the increase, asserting that the sale of firearms by Espinal using other suppliers was not foreseeable to Rosa. Judge Glasser, however, determined that Rosa was responsible for the acts of his co-defendants under § 1B1.3 and related Application Note 2 (Relevant Conduct), which provides that a defendant is accountable for the conduct of others that was both in furtherance of the jointly undertaken criminal activity and reasonably foreseeable in connection with that criminal activity. The court therefore sentenced Rosa in accordance with the Guidelines provision for a crime involving sale of more than eight firearms. The court did not apply the recommended two-level increase for the obliterated serial number or the two-level increase for reckless endangerment. The resulting offense level was thus 21. The court then gave Rosa the three-level reduction for acceptance of responsibility. The final offense level of 18 carried a penalty with the range of 27 to 33 months' imprisonment; Judge Glasser sentenced Rosa to the lowest possible sentence within that range, 27 months' incarceration.

II Discussion

Rosa challenges the district court's application of the § 2K2.1(b)(1)(C) three-level increase. He contends that he should be responsible for not more than a one-level increase because he only participated in a single gun sale involving three guns. The Government, however, contends that we ought not to reach the merits of this appeal because Rosa waived his right to appeal his sentence under the terms of his plea bargain agreement. The plea agreement provided that Rosa waived his right to appeal if the sentence he received were within or below the applicable Guidelines range as determined by the sentencing court. The district court determined that the applicable Guidelines range was 27 to 33 months' imprisonment, and sentenced Rosa to 27 months. According to the plain terms of the plea agreement, therefore, Rosa has waived his right to appeal. The question for us is whether this waiver provision is one to which Rosa may be held.

In general, a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed guideline range is enforceable. United States v. Maher, 108 F.3d 1513, 1531 (2d Cir.1997); United States v. Jacobson, 15 F.3d 19, 22-23 (2d Cir.1994); United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.1993) (per curiam); United States v. Rivera, 971 F.2d 876, 896 (2d Cir.1992). We recognize that plea agreements can have extremely valuable benefits to both sides--most notably, the defendant gains reasonable...