U.S. v. Rosales

• Decision Date: 30 October 1990
• Docket Number: No. 90-10068,90-10068
• Citation: 917 F.2d 1220
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Adislado Parades ROSALES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1220

917 F.2d 1220

3 Fed.Sent.R. 201

UNITED STATES of America, Plaintiff-Appellee, v. Adislado Parades ROSALES, Defendant-Appellant.

No. 90-10068.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 1, 1990.

Decided Oct. 30, 1990.

H. David Grunbaum, Asst. Federal Public Defender, San Jose, Cal., for defendant-appellant.

Anna A. Matheson and Rory K. Little, Asst. U.S. Attys., Chief, Appellate Section, San Jose, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN, Chief Judge, BROWNING and RYMER, Circuit Judges.

GOODWIN, Chief Judge:

Adislado Rosales appeals his sentence upon his guilty plea to misprision of a felony (distribution of heroin) in violation of 18 U.S.C. Sec. 4. He contends that the district court erred in not reducing his base offense level for acceptance of responsibility and in considering the total amount of heroin involved in the underlying felony in setting his base offense level. We affirm the sentence.

DEA agent Pete Ramirez made arrangements with codefendant Enrique Mendez Pineda (Mendez) to purchase ten ounces of heroin for $22,000. Ramirez and Mendez agreed to conduct the transaction on May 23, 1989, in the parking lot in front of a Pay N' Save store in San Jose, California.

At the designated time and place, Mendez, accompanied by Rosales and another passenger, drove a pickup truck into the parking lot. Mendez met with Ramirez, who gave Mendez the $22,000. After counting the money, Mendez agreed to let Ramirez accompany him to the pickup truck to retrieve the heroin. Upon reaching the passenger side of the vehicle, where Rosales was sitting, Ramirez asked Rosales to show him the "thing". Rosales retrieved a grocery bag containing 230 grams of heroin. Mendez obtained the bag of heroin and walked with Ramirez to his vehicle. At the same time, Rosales drove and parked the pickup truck near Ramirez's vehicle. Ramirez gave the arrest signal to surveillance units, and Mendez was arrested.

Meanwhile, as the arresting agents arrived, Rosales attempted to drive away in the pickup truck. Following a vehicle and foot chase, Rosales was arrested and taken into custody.

Rosales was indicted on one count each of conspiracy to possess heroin and possession of heroin, and entered a plea of not guilty. A superseding indictment was subsequently returned. The charges against Rosales remained the same, and he again entered a plea of not guilty.

On October 11, 1989, a one-count information was filed charging Rosales with misprision of a felony (distribution of heroin) in violation of 18 U.S.C. Sec. 4. He waived indictment by grand jury and pleaded guilty to the information.

A presentence report (PSR) was filed with the district court on December 4, 1989. Prior to the sentencing hearing, Rosales filed written objections to the PSR, arguing in part that he was entitled to a sentence reduction for acceptance of responsibility and that the PSR improperly calculated his base offense level of 17 on the basis of the entire amount of heroin contained in the bag.

The PSR calculated Rosales's base offense level of 17 in the following manner: The base offense level for misprision of a felony is nine levels lower than the offense level for the underlying offense. United States Sentencing Guidelines (U.S.S.G.) Sec. 2X4.1. The base offense level for the underlying offense, possession with intent to distribute 230 grams of heroin, is 26, U.S.S.G. Sec. 2D1.1(c)(9), and thus the adjusted offense level for misprision is 17. The PSR recommended no offense level reduction for acceptance of responsibility.

At the sentencing hearing, Rosales reiterated his objections to the PSR. The district court accepted the PSR's determination that the base offense level was 17, and sentenced Rosales to 24 months of imprisonment and one year of supervised release.

1. Acceptance of Responsibility

At the outset, Rosales argues that the district court made inadequate findings under the Guidelines in denying him a two-point reduction in his offense level for acceptance of responsibility. He also contends that the district court's failure to make specific findings violated Fed.R.Crim.P. 32(c)(3)(D). Neither has merit.

In resolving objections to the presentence report, "the district court should make clear on the record its resolution of all disputed matters, and ... specific findings of fact are to be encouraged." United States v. Rigby, 896 F.2d 392, 394 (9th Cir.1990). The district court satisfies the above requirement by adopting the conclusions in the PSR. United States v. Corley, 909 F.2d 359, 362 (9th Cir.1990); Rigby, 896 F.2d at 394.

Here, there were no substantial factual disputes. The district court, for more than a month before the sentencing hearing, had Rosales's PSR, which recommended against an offense level reduction for acceptance of responsibility. The district court also had the benefit of Rosales's written objections to the PSR challenging the denial of an offense level reduction for acceptance of responsibility.

At the sentencing hearing, Rosales's counsel argued that Rosales was entitled to a two-point reduction for acceptance of responsibility. The government argued that the PSR should be followed. The district court accepted the government's position that the sentencing recommendation in the PSR should be followed, and proceeded to sentence Rosales in accordance with the base offense level of 17 calculated by the PSR. By adopting the PSR and its recommendations, the district court thereby denied Rosales a two-point offense level reduction for acceptance of responsibility. See Corley, 909 F.2d at 362 (district court made adequate findings in denying an offense level reduction for acceptance of responsibility where the district court indicated its acceptance of the government's position that the offense level reduction should not be granted and proceeded to sentence the defendant in accordance with the PSR's recommendations.) As in Corley, " '[t]he record at the sentencing hearing reflects no confusion on anyone's part as to what the district court decided.' " Corley, 909 F.2d at 362 (quoting Rigby, 896 F.2d at 394).

We reject on similar grounds Rosales's argument that the district court failed to comply with Fed.R.Crim.P. 32(c)(3)(D). The district judge was presented with the PSR and Rosales's written objections to the PSR, gave Rosales an opportunity to argue at sentencing why he should receive the reduction for acceptance of responsibility, and adopted the presentence report's recommendation. No more was required under rule 32(c)(3)(D). See id. at 362 (rejecting defendant's claim that the district court violated ...