United States v. Rosario

• Court: Court of Appeals for the Second Circuit
• Decided: February 1, 2021
• Docket: 19-3163
• Status: Unpublished

Opinion

19-3163 United States v. Rosario

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

1 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 2 CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS 3 PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 4 PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 5 SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 6 CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH 7 THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY 8 ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 9 COUNSEL.

10 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 11 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st 12 day of February, two thousand twenty-one. 13 14 PRESENT: 15 AMALYA L. KEARSE, 16 PIERRE N. LEVAL, 17 SUSAN L. CARNEY, 18 Circuit Judges. 19 _________________________________________ 20 21 UNITED STATES OF AMERICA, 22 23 Appellee, 24 25 v. No. 19-3163 26 27 ANTONIO ROSARIO, ALSO KNOWN AS CHICKEE, 28 29 Defendant-Appellant, 30 31 CURTIS TAYLOR, SAMUEL VASQUEZ, ALSO KNOWN AS ROCK, 32 33 Defendants. 34 _________________________________________ 35 36 37 FOR DEFENDANT-APPELLANT: GEORGIA J. HINDE, ESQ., New York, NY. 38 1 FOR APPELLEE: MARGARET GRAHAM (Thomas McKay, on the 2 brief), for Audrey Strauss, United States 3 Attorney for the Southern District of New 4 York, New York, NY. 5 6 Appeal from a judgment and order of the United States District Court for the Southern 7 District of New York (Caproni, J.). 8 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 9 ADJUDGED, AND DECREED that the amended judgment entered on September 24, 2019, and 10 the order entered on June 11, 2020, are AFFIRMED. 11 In 2015, Rosario was sentenced principally to 180 months’ imprisonment on his convictions 12 of Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, and brandishing a firearm in 13 relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii). United States v. Rosario, 652 F. App’x 14 38 (2d Cir. 2016) (affirming sentence). 1 The predicate “crime of violence” of the § 924(c) conviction 15 was the Hobbs Act robbery conspiracy. After this Court determined that the offense no longer 16 qualified as a “crime of violence” in light of United States v. Davis, 139 S. Ct. 2319 (2019), see United 17 States v. Barrett, 937 F.3d 126, 217 (2d Cir. 2019), the Government agreed to vacatur of the § 924(c) 18 conviction and to plenary resentencing on the remaining counts. On September 24, 2019, the 19 District Court resentenced Rosario to 180 months’ imprisonment, maintaining his originally 20 scheduled release date. 21 On appeal, Rosario challenges the procedural and substantive reasonableness of this 22 sentence. We review his challenge under “a deferential abuse-of-discretion standard.” Gall v. United 23 States, 552 U.S. 38, 41 (2007). “A sentence is procedurally unreasonable if the district court fails to 24 calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing 25 Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly 26 erroneous facts, or fails adequately to explain the chosen sentence.” United States v. Jesurum, 819 F.3d 27 667, 670 (2d Cir. 2016) (emphasis in original). A sentence is substantively unreasonable “only in 28 exceptional cases where the trial court’s decision cannot be located within the range of permissible 29 decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). “In determining 30 whether a sentence falls within the permissible range, [the Court] patrol[s] the boundaries of

1Unless otherwise noted, in quotations from caselaw, this Order omits all alterations, brackets, citations, emphases and internal quotation marks.

2 1 reasonableness, cognizant of the fact that responsibility for sentencing is placed largely with the 2 district courts.” United States v. Jenkins, 854 F.3d 181, 187 (2d Cir. 2017); see United States v. Dorvee, 616 3 F.3d 174, 183 (2d Cir. 2010) (This Court will not use substantive reasonableness review as “an 4 opportunity for tinkering with sentences [it] disagree[s] with,” because it “place[s] great trust in 5 sentencing courts”).

6 We hold that the District Court’s imposition of a 180-month sentence on Rosario was 7 procedurally and substantively reasonable. Regarding procedural propriety, the District Court 8 carefully followed all required steps, see Jesurum, 819 F.3d at 670: it first explained that, in the absence 9 of the § 924(c) count, the Sentencing Guidelines range was 110 to 137 months, shifted down from 10 the original range of 161 to 180 months. The recalculated range reflected an offense level of 26 and 11 a criminal history category of V. When the District Court gave the parties opportunities to raise “any 12 factual issues in dispute” or other issues that would bear on sentencing, neither party did. App. at 43.

13 The District Court then explained why the above-Guidelines sentence of 180 months was 14 appropriate, resting both on the applicability of an upward departure under U.S.S.G. § 4A1.3(a)(1) 15 and on an upward variance under its weighing of the 18 U.S.C. § 3553(a) factors. First, the court 16 explained that a departure was warranted because “reliable information indicates that [Rosario’s] 17 criminal history category substantially under-represents the seriousness of the defendant’s criminal 18 history.” U.S.S.G. § 4A1.3(a)(1). Specifically, in the court’s view, Rosario’s criminal history category 19 understated his past violent misconduct. In 2002, Rosario was permitted to plead guilty to gun 20 possession, even though he had admitted to shooting a victim on that occasion. Had Rosario been 21 convicted of the shooting, then—combined with a prior violent felony conviction—he would have 22 been sentenced in this case as a “career offender,” as the District Court found. See U.S.S.G. 23 § 4B1.1(a). 2 Under the Career Offender Guidelines, Rosario would have faced a sentencing range of 24 210 to 262 months. 3 The District Court therefore concluded that an above-Guidelines sentence was

2 The District Court analyzed this issue correctly. Under U.S.S.G. § 4B1.1(a), a defendant is a career offender if he has two prior violent felony convictions and the instant offense is a “crime of violence” under the Guidelines’ definition. Here, the instant offense—Hobbs Act robbery—qualifies as “crime of violence” as a “robbery” offense under the Guidelines. See § 4B1.2(a)(2). 3 This calculation accurately applies U.S.S.G. § 4B1.1(b)(3). Because Hobbs Act robbery and conspiracy to

commit Hobbs Act robbery each carry a statutory maximum penalty of 20 years’ imprisonment, see 18 U.S.C. § 1951(a), then U.S.S.G. § 4B1.1(b)(3) provides that the career offender’s offense level is 32 and the criminal history category is VI. The resulting sentencing range is 210 to 262 months, per the Guidelines’ Sentencing Table.

3 1 appropriate. See U.S.S.G. § 4A1.3(a)(4)(A) (instructing sentencing courts to use “as a reference, the 2 criminal history category applicable to defendants whose criminal history . . . most closely resembles 3 that of the defendant’s” in “determin[ing] the extent of a departure” to apply). Although the District 4 Court did not strictly follow the procedures outlined in the Guidelines to reach this conclusion, it 5 was not obligated to do so. See United States v. Simmons, 343 F.3d 72, 78 (2d Cir. 2003) (“[A]s long as 6 the reasons for such a departure are fully explained, a mechanistic, step-by-step procedure is not 7 required”); see also United States v. Volger, 763 F. App’x 18, 20 (2d Cir. 2019) (a court need not “strictly 8 follow” the steps in U.S.S.G. § 4A1.3).

9 Second, the District Court explained that it arrived at the particular sentence of 180 months 10 by weighing the § 3553(a) factors. Although the § 924(c) count had been vacated, the court noted 11 that the facts about the offense, Rosario’s past misconduct, and his character remained the same. It 12 focused on how Rosario appeared not to have changed in prison since his 2015 sentence. His 13 uneven disciplinary record, refusal of a work assignment, and in the court’s view, most significantly, 14 his rejection of a spot in a drug rehabilitation program “indicat[ed that] . . . down deep, [Rosario was 15 not] ready to change [his] approach to life.” See App. at 62-63. Furthermore, the court noted its 16 concerns about Rosario’s likelihood to recidivate, since none of his numerous previous sentences 17 had deterred him from committing crimes upon his release or while in prison. See App. at 41-42, 61 18 (cataloguing Rosario’s offenses, before he was detained in 2008 for this offense, including: a 1994 19 manslaughter conviction, a 1998 conviction for promoting contraband to prisoners, a 2001 20 controlled substances conviction, a 2002 firearm possession conviction, and a 2008 violation of 21 parole as a result of committing the instant offense). Because the § 3553(a) factors had not changed 22 since the 2015 sentencing, the District Court concluded that the same sentence as before—180 23 months’ imprisonment—was appropriate. 4

4 As the District Court explained:

When I sentenced you before, I was aware that I had to give you 84 months consecutive for the gun. Minimally, that required me to adjust the sentence on Counts One and Two to get to an aggregate sentence that I believed was fair. My approach to your sentence was my approach to every sentence I impose that has multiple counts. I look at what is an appropriate sentence, and that's where I'm going to end up. And if it means I need to jiggle around the penalty on one count to deal with what is a mandatory penalty on another count, I will do that, and that's what I did in your case. I thought at the time, and I continue

4 1 This record amply demonstrates that the District Court acted procedurally and substantively 2 reasonably in imposing Rosario’s sentence. Not only did the court follow the appropriate 3 procedures, but the resulting sentence is plainly “located within the range of permissible decisions” 4 required for substantive reasonableness. Cavera, 550 F.3d at 189.

5 Rosario also challenges the District Court’s denial of his motion for compassionate release 6 under 18 U.S.C. § 3582(c)(1)(A) on June 11, 2020. 5 Section 3582(c)(1)(A) provides that a court “may 7 reduce the term of imprisonment . . . after considering the factors set forth in section 3553(a) to the 8 extent that they are applicable, if it finds that . . . extraordinary and compelling reasons warrant such 9 a reduction.” “We typically review the denial of a motion for a discretionary sentence reduction for 10 abuse of discretion.” United States v. Holloway, 956 F.3d 660, 664 (2d Cir. 2020).

11 Rosario argues that the combined circumstances of dangerous conditions in prison during 12 the pandemic and his chronic health problems present “extraordinary and compelling reasons” for 13 his early release. The District Court assumed the validity of this argument, but it ultimately denied 14 compassionate release without prejudice: it found that the § 3553(a) factors outweighed the dangers 15 to Rosario’s health. In particular, as during Rosario’s resentencing, the District Court noted that 16 Rosario had a violent history, continued to display anti-social behavior, had not progressed in 17 prison, and lacked a solid reentry plan for after his release. The court also noted that Rosario was 18 relatively young and his chronic conditions were managed well by medication, thus the risks to him 19 were lower than to some other inmates. Nevertheless, the District Court invited Rosario to move 20 again for early release if his personal circumstances and/or the circumstances in prison meaningfully 21 changed. Based on this reasoned analysis, we find that the District Court did not abuse its discretion 22 in denying without prejudice Rosario’s motion for compassionate release.

23 * * *

to think, that given your criminal conduct in this case and given your history of criminal conduct, that 15 years was the appropriate sentence for your conduct.

App. at 63. 5 As counsel noted at oral argument, Rosario re-applied for compassionate release and was denied again without prejudice on December 24, 2020. Only the June 11, 2020 denial of compassionate release is before us in the instant appeal.

5 1 We have considered Rosario’s other arguments on appeal and find in them no reason to 2 reverse the District Court’s rulings. For the foregoing reasons, the District Court’s judgment and 3 order are AFFIRMED. 4

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk of Court