United States v. Rosado
| Decision Date | 21 September 2022 |
| Docket Number | 21-14065 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT ROSADO, a.k.a. Drew, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:20-cr-00134-SPC-MRM-4 Before JORDAN, JILL PRYOR, and BRASHER, Circuit Judges.
Robert Rosado appeals his sentence for (1) conspiracy to distribute and possession with intent to distribute crack cocaine and fentanyl, and (2) distribution of crack cocaine and fentanyl. There are two issues on appeal. First, whether the district court erred in imposing a two-level enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance, under section 2D1.1(b)(12) of the Sentencing Guidelines. Second, whether Rosado's sentence is substantively unreasonable because the court failed to consider the sentencing factors under 18 U.S.C. § 3553(a) and relied too heavily on his prior record. Because we find no reversible error by the district court, we affirm.
In 2020, Rosado pled guilty-without a written plea agree-ment-to one count of conspiracy to distribute and possession with intent to distribute crack cocaine and fentanyl, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B), and one count of distribution of crack cocaine and fentanyl, in violation of 18 U.S.C. §§ 841(a)(1) and (b)(1)(C).
Before sentencing, the United States Probation Office prepared a presentence investigation report ("PSR") to help the district court determine Rosado's sentence. The PSR summarized the relevant offense conduct as follows. In June 2020, the Lee County Sheriff's Office ("LCSO") received information from a confidential source that Rosado's codefendant Marvin Harris, Jr.,[1] was the leader and supplier of a drug trafficking organization. The LCSO discovered that the Federal Bureau of Investigations had begun investigating Harris in February 2020, and a joint investigation ensued. Harris had enlisted multiple dealers to distribute controlled substances he provided, including crack cocaine and fentanyl from residences used specifically for drug distribution, known as trap houses.
The drug dealers primarily sold drugs out of a trap house, supplied by Harris, located at 566 New York Drive in Fort Myers, Florida (the "NYD house"). Harris required the drug dealers to pay him a portion of their profits from selling drugs out of the NYD house and charged them rent to sell drugs out of the house. A confidential source worked with law enforcement to purchase crack cocaine and fentanyl out of the NYD house around ten times daily. The confidential source identified Rosado as one of the individuals who sold drugs out of the house. Twice, in August and September 2020, the confidential source contacted and purchased crack cocaine and fentanyl from Rosado at the NYD house.
Pursuant to an outstanding warrant for Rosado's arrest in an unrelated state case, law enforcement located and arrested Rosado at the NYD house, where he possessed four containers of crack cocaine. Lee County charged Rosado with possession of crack cocaine, and he apparently was released on bond. Ten days later, Rosado was arrested again for the instant offenses and, at the time of his arrest, possessed three plastic baggies of cocaine.
The PSR explained that Rosado was involved in the charged conspiracy from at least April 2020 through October 15, 2020, was accountable for 534.41 grams of fentanyl and 399.18 grams of crack cocaine, was a dealer for the conspiracy, and helped maintain the NYD house where a firearm was present.
The PSR grouped Rosado's counts together and, based on the quantity of drugs involved, calculated a base offense level of 30. The PSR applied a two-level enhancement, under section 2D1.1(b)(1) of the Sentencing Guidelines, because his co-con-spirators possessed a dangerous weapon, which was reasonably foreseeable to Rosado. The PSR also added a two-level enhancement, under section 2D1.1(b)(12) of the Sentencing Guidelines, because Rosado maintained a premises for the purpose of manufacturing or distributing a controlled substance. The PSR then applied a three-level reduction for acceptance of responsibility, yielding a total offense level of 31.
The PSR noted that Rosado had several adult convictions, including convictions for possession of marijuana and cocaine, resulting in a criminal history category of IV. The PSR calculated that a total offense level of 31 and criminal history category of IV yielded a recommend range under the guidelines of 151 to 188 months' imprisonment. The PSR noted that the statutory maximum was 40 years for the conspiracy charge and 20 years for the distribution charge.
Before sentencing, Rosado filed a sentencing memorandum, moving for a downward variance and objecting to portions of the PSR. Rosado objected to the § 2D1.1(b)(12) enhancement for maintaining a premises used for drug distribution, arguing that he did not own or rent the NYD house and that he was subordinate to his other co-conspirators concerning controlling access to and activities at the house.
Regarding the § 3553(a) factors, Rosado argued that the court should consider his background as mitigating circumstances, including that his father passed away from falling off a roof in 2005 and that his paternal grandmother and uncle removed him from their family home after his father's death. Rosado emphasized that his mother remarried when he was 16 years' old and that his stepfather was verbally and physically abusive, used powder and crack cocaine daily, and introduced him to smoking crack cocaine when he was 17 years' old, which led to his own crack cocaine addiction.
The government also filed a sentencing memorandum. It argued that the § 2D1.1(b)(12) enhancement was adequately supported by evidence, which showed that Rosado used the NYD house to distribute drugs from August 14, 2020, until October 15, 2020. The government explained that a video recording of the September 2020 drug deal between its confidential source and Rosado showed that Rosado allowed the confidential source to enter the NYD house, which demonstrated his control over the property, and that he was the only drug dealer in the house. The government explained that a recording of a phone call Harris made to Rosado from jail revealed that Rosado indicated he would "maintain the spot." Doc. 239 at 2.[2] The recording also showed that Rosado and Harris discussed rent and utilities, which demonstrated that Rosado held a possessory interest in the drug premises.[3]
At his sentencing hearing, Rosado reiterated his objection to the § 2D1.1(b)(12) enhancement. The government responded that it had prepared to introduce the video and telephonic evidence referenced in its sentencing memorandum, but Rosado had indicated that he did not object to the accuracy of the facts as proffered. So, the government recited the facts as mentioned in its memorandum and argued that, although Rosado was not on the lease, he had a possessory interest in the NYD house because he paid rent and dealt drugs out of the premises. It explained that Rosado was in complete and singular control of the house during the September 2020 drug deal facilitated by the confidential source and law enforcement. It also referenced the phone call between Harris and Rosado, during which Rosado indicated he would "maintain the spot." Doc. 283 at 9.
The district court overruled Rosado's objection and found that the § 2D1.1(b)(12) enhancement was appropriate. The court explained that the undisputed facts showed that: (1) the NYD house served as a drug distribution point for Harris and the co-con-spirators; (2) the individuals, Rosado included, were paying rent to use the residence as a drug distribution center; (3) video evidence showed Rosado exerting control over the premises when the confidential source purchased drugs from him in September 2020; (4) Rosado was the only individual at the premises when the confidential source purchased the drugs, so he had access to and control of the property; and (5) the jail call between Harris and Rosado indicated that Rosado would maintain the NYD house.
The district court found that based on a criminal history category of IV and a total offense level of 31, Rosado's guideline range was 151 to 188 months' imprisonment.[4] Rosado reiterated his request that the court consider his history and characteristics regarding his upbringing. Rosado apologized to the court and asserted that much of his criminal history, which was nonviolent, stemmed from his upbringing.
The district court noted that it had reviewed the PSR and the parties' sentencing memoranda and that it had considered the § 3553(a) factors, including Rosado's history and characteristics, the nature and circumstances of the offense, the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment, and to afford adequate deterrence to criminal conduct. The court also detailed the nature and circumstances of Rosado's offense and referenced his criminal history, that he had not been deterred from committing criminal offenses, and his upbringing. The court declined to vary downward.
The district court sentenced Rosado to 151 months' imprisonment as to each count, to run concurrently. The court also imposed a five-year term of supervised release on the conspiracy charge and a three-year term of supervised release on the distribution charge, also to run concurrently. The court noted that Rosado's 151-month sentence would run consecutively to his term of imprisonment imposed by state authorities. Rosado objected to the...
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