United States v. Rosalio Calderon

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4907

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROSALIO CALDERON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. David A. Faber, Senior District Judge. (7:12-cr-00037-FA-3)

Submitted: January 31, 2022 Decided: March 28, 2022

Before WILKINSON, KING, and DIAZ, Circuit Judges.

Vacated in part and affirmed in part by unpublished per curiam opinion.

ON BRIEF: Geoffrey W. Hosford, HOSFORD & HOSFORD, PC, Wilmington, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Rosalio Calderon pled guilty, pursuant to a written plea agreement, to conspiracy to

commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951; use of a firearm in a crime

of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)(B)(i); conspiracy to distribute and

possess with intent to distribute more than five kilograms of cocaine, in violation of 21

U.S.C. § 846; kidnapping resulting in death, in violation of 18 U.S.C. §§ 2, 1201(a); and

kidnapping, in violation of 18 U.S.C. §§ 2, 1201(a). The district court sentenced Calderon

to life imprisonment plus 120 months. On appeal, we vacated Calderon’s § 924(c)

conviction in light of United States v. Davis, 139 S. Ct. 2319 (2019), affirmed the remainder

of his convictions, and remanded for resentencing. United States v. Calderon, 774 F.

App’x 805, 805-06 (4th Cir. 2019) (No. 15-4420). On remand, the district court sentenced

Calderon to a total term of life imprisonment and a five-year term of supervised release.

Following resentencing, Calderon appeals. Calderon’s counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious

grounds for appeal but asserting that the life sentence violates Calderon’s Eighth

Amendment right to be spared from cruel and unusual punishment. Calderon was notified

of his right to file a pro se supplemental brief but has not done so. The Government moved

to dismiss Calderon’s appeal based on the appeal waiver contained in the plea agreement.

After a review of the record pursuant to Anders, we deferred ruling on the Government’s

motion to dismiss and directed the parties to file supplemental briefs in light of our

decisions in United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), and United States v.

Singletary, 984 F.3d 341 (4th Cir. 2021).

2 Calderon filed a supplemental brief, arguing that he is entitled to further

resentencing because the district court erred in imposing discretionary conditions of

supervised release. Specifically, Calderon contends that the district court did not

adequately explain its reasons for imposing standard supervised release conditions and did

not announce two financial-related conditions at the resentencing hearing. The

Government filed a motion to remand for further resentencing, conceding that the district

court erred under Rogers and Singletary with respect to the financial-related conditions. In

these circumstances, we vacate the discretionary conditions of supervised release. Given

Calderon’s mandatory life sentence, however, we deny the Government’s motion to

remand for further resentencing. We note that, in the event that Calderon is released from

prison, the Government will be free to seek the imposition of any discretionary conditions

of supervised release it believes to be warranted.

Accordingly, we deny the Government’s motion to dismiss, vacate the discretionary

conditions of supervised release, deny the Government’s motion to remand, reject

Calderon’s Eighth Amendment claim, and affirm the remainder of Calderon’s sentence.

We dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

VACATED IN PART AND AFFIRMED IN PART