U.S. v. Rosario
| Decision Date | 19 October 1993 |
| Docket Number | D,No. 188,188 |
| Parties | UNITED STATES of America, Appellee, v. William ROSARIO, Defendant-Appellant. ocket 93-1204. |
| Court | U.S. Court of Appeals — Second Circuit |
James Michael Roth, New York City (Michael Resko, Hurwitz, Stampur & Roth, of counsel), for defendant-appellant.
Mary Jo White, U.S. Atty., S.D.N.Y. (Andrew S. Dember and John W. Auchincloss, II, Asst. U.S. Attys., New York City, of counsel), for appellee.
Before: VAN GRAAFEILAND, PRATT, and WALKER, Circuit Judges.
On November 4, 1991, defendant William Rosario approached a United States Postal Service letter carrier and asked the carrier if he had received any mail. The carrier told Rosario that he did not know if there was mail for him and returned to his duties. While the carrier's back was turned, Rosario hit the carrier on the head, knocking him to the floor, then immobilized the carrier by stepping on his throat while he stole the carrier's wallet and keys.
A few days later, Rosario was an occupant in an automobile involved in an accident. When New York City Police who arrived at the accident scene asked Rosario for identification, he complied by producing a credit card containing a name other than his own. Apparently, Rosario had used the letter carrier's keys to rob postal relay boxes used to store mail, and had stolen several credit cards from the relay boxes. The officers suspected that the name on the credit card was not Rosario, and upon further investigation discovered that Rosario possessed seven credit cards in all, each bearing a different name. The police took Rosario's picture and included it in a photo array shown to the letter carrier on November 18, 1991. From the photo array, the letter carrier positively identified Rosario as the man who robbed him.
Rosario was arraigned on a four count indictment. The indictment charged Rosario with, inter alia, assaulting a letter carrier with intent to rob mail matter and property of the United States, 18 U.S.C. § 2114, and possessing credit cards unlawfully taken from the mails, knowing them to be stolen, 18 U.S.C. § 1708. On December 7, 1992, Rosario pleaded guilty to these two counts of the indictment.
At sentencing, with respect to the robbery count the district court adopted the Probation Department's recommended offense level of twenty-six, which consisted of a base offense level of twenty, U.S.S.G. § 2B3.1(a), and an additional two levels each for stealing property of the United States Postal Service, bodily injury to the victim, and physical restraint in the commission of the offense. After performing the required multiple count adjustment, and awarding Rosario a three level downward adjustment for acceptance of responsibility, the court arrived at a net offense level of twenty-three. Based on Rosario's category III criminal history, this offense level resulted in a sentencing range of fifty-seven to seventy-one months. Judge Freeh sentenced Rosario to sixty-four months in prison.
The only issue Rosario raises on appeal is whether the district court erred by imposing the two offense level enhancement for "physical restraint" in connection with the robbery charge. See U.S.S.G. § 2B3.1(b)(4)(B). We affirm the district court.
The Sentencing Guidelines provide for a two level enhancement in the offense level for robbery, "if any person was physically restrained to facilitate commission of the offense or to facilitate escape." U.S.S.G. § 2B3.1(b)(4)(B). "Physically restrained" is defined by cross-reference to § 1B1.1 as "the forcible restraint of the victim such as by being tied, bound, or locked up." Id. § 1B1.1, comment. (n.1(i)). The use of the modifier "such as" in the definition indicates that the illustrations of physical restraint "are listed by way of example rather than limitation." United States v. Stokley, 881 F.2d 114, 116 (4th Cir.1989).
Although he acknowledges that the examples listed in the definition of physical restraint are...
To continue reading
Request your trial
-
Note Holders v. Large Private Beneficial Owners (In re Tribune Co. Fraudulent Conveyance Litig.), 13-3992-cv
...that, under normal circumstances, a creditor-debtor relationship does not amount to a fiduciary relationship. Manufacturers Hanover Tr., 7 F.3d at 319. Tribune and Computershare were not in a creditor-debtor relationship. 12. Section 546(e) also covers certain "settlement payments," which n......
-
U.S. v. Salim
...(displaying a gun and telling people to get down in the course of a bank robbery is not "physical restraint") with United States v. Rosario, 7 F.3d 319 (2d Cir.1993) (upholding physical restraint enhancement for robber who stood on his victim's throat while stealing wallet and keys, because......
- In re Tribune Company Fraudulent Conveyance Litigation
-
Harris v. U.S.
...argue that the four-level enhancement under § 2F1.1(b)(2)(A) improperly "double counts the underlying offense," citing United States v. Rosario, 7 F.3d 319 (2d Cir.1993), so that the proper remedy for this Court to fashion "is to eliminate the four-level enhancement for being an organizer o......