United States v. Rosario-Oquendo

370 F. App'x 24
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 12, 2010
DocketNo. 09-13917
StatusPublished

This text of 370 F. App'x 24 (United States v. Rosario-Oquendo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rosario-Oquendo, 370 F. App'x 24 (11th Cir. 2010).

Opinion

PER CURIAM:

Jose Rosario-Oquendo, through counsel, ■appeals his 800-month sentence for conspiracy to possess with intent to distribute more than 5 kilograms of cocaine. Rosario-Oquendo argues that the district court erred (1) in applying a 4-level role enhancement under U.S.S.G. § 3Bl.l(a), and (2) in holding him accountable for more than 150 kilograms of cocaine. For the reasons set forth below, we affirm.

I.

Rosario-Oquendo pled guilty to conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(ii), and 846. A notice filed by the government set forth the following facts. In June 2007, federal and local law enforcement agents discovered that a specific drug-trafficking organization was mailing cocaine almost every week from Puerto Rico to Orlando. In the fall of 2006, Miguel Antonio Montes took charge of the organization’s Orlando operations. The notice stated that Rosario-Oquendo

worked directly with the drug trafficking organization in Puerto Rico. During telephone conversations with Montes, [Rosario-Oquendo] arranged for the distribution of cocaine from Puerto Rico to Orlando; he delivered cocaine to associates in Puerto Rico for packaging and mailing to Orlando, Florida; and he received drug proceeds from couriers sent by Montes in Orlando, including, but not limited to, indicted co-conspirators Ricardo Perlaza, Feliz Hernandez, Jorge Cortijo, Luis Cruz, Iris Pacheco, Ida Acevedo and Loanna Cortijo.

The government also submitted transcripts of four intercepted telephone conversations between Montes and Rosario-Oquendo.

At the plea hearing, Rosario-Oquendo admitted that the conspiracy involved 5 kilograms or more of cocaine, but disputed the government’s contention that the conspiracy involved more than 150 kilograms of cocaine. The magistrate judge found that there was a sufficient factual basis for Rosario-Oquendo’s guilty plea, and the district court subsequently adjudicated Rosario-Oquendo guilty.

The PSI set Rosario-Oquendo’s base offense level at 38, pursuant to U.S.S.G. § 2Dl.l(c)(l), because his offense involved more than 150 kilograms of cocaine. Rosario-Oquendo received a four-level in[26]*26crease, pursuant to § 3Bl.l(a), because he was an organizer or leader of the offense, which involved five or more participants or was otherwise extensive. He received a 3-level reduction, under § 3El.l(a) and (b), for acceptance of responsibility, resulting in a total offense level of 39. Rosario-Oquendo’s total offense level of 39 combined with his criminal history category of II yielded a guideline imprisonment range of 292 to 365 months.

Rosario-Oquendo objected to the drag amount set forth in the PSI, arguing that he should be held accountable for at least 5, but less than 15, kilograms of cocaine, rather than 150 kilograms or more of cocaine. He also objected to the application of the four-level § 3Bl.l(a) enhancement for his role in the offense, arguing that he was not an organizer or leader.

At the sentencing hearing, Ray Schulte, an officer with the Orange County Sheriffs Office, testified that Montes told him that Rosario-Oquendo initially shipped to Montes smaller quantities of 4 kilograms of cocaine, but eventually shipped up to 50 kilograms of cocaine per week in April and May 2007. Schulte noted that Montes and Rosario-Oquendo were engaged in transactions with one another from approximately September 2006 through June 2007. Referring to the transcript of a May 30, 2007 telephone conversation, Schulte testified that Rosario-Oquendo told Montes that he was planning to ship 10 kilograms daily, for a total of 40 to 50 kilograms of cocaine per week. Based on Schulte’s investigation, these amounts were consistent with the amounts of cocaine that actually were shipped. Schulte noted that, during an intercepted conversation on June 1, 2007, Rosario-Oquendo stated that “[t]here are 60 Chanels,” meaning that Rosario-Oquendo had 60 kilograms of cocaine bearing the Chanel label.

Schulte testified that Montes paid for his cocaine by sending couriers with money to Puerto Rico. These couriers included Ricardo Perlaza, Felix Hernandez, Luis Gonzalez, Aida Acevedo, Jorge Cortijo, and Luana Cortijo. Schulte stated that these couriers told him that Rosario-Oquendo would meet them at the airport in Puerto Rico and give them directions while they were there. Schulte also testified that Rosario-Oquendo himself did not package and mail the cocaine, but that other people did this under Rosario-Oquenclo’s direction. Schulte noted that, during one telephone conversation with Montes, Rosario-Oquendo discussed sending Luis Cruz, a money courier known as “the old guy,” to Boston.

Rosario-Oquendo argued that the court should not consider Schulte’s testimony because it could not reasonably be assured that the information he provided was accurate. Rosario-Oquendo also argued that there was insufficient evidence to determine that he was a leader or organizer, and that he should be held accountable for less than 15 kilograms of cocaine.

The government responded that it was apparent from the transcripts of telephone conversations that Rosario-Oquendo was supplying Montes with large quantities of cocaine, as Rosario-Oquendo at once said that he was able “to move ten a day, 40 to 50 per week” and acknowledged that “he had then available 60 kilos that he had just washed.” The government also noted that Rosario-Oquendo directed the activities of seven money couriers who traveled to Puerto Rico, as well as the activities of Cruz, whom he sent to Boston.

The court stated that it had heard Montes testify in other proceedings and it did not “have any reason to believe that what [Montes] had said to Mr. Schulte and what is included in the transcripts that [the government] referred to is untrue.”

[27]*27The court overruled Rosario-Oquendo’s objections to the PSI’s factual statements and guideline calculations. It found that Rosario-Oquendo had a total offense level of 39, a criminal history category of II, and a guideline imprisonment range of 292 to 365 months. It sentenced Rosario-Oquen-do to 300 months’ imprisonment, to be followed by a 5-year term of supervised release.

II.

“A district court’s enhancement of a defendant’s offense level based on his role as an organizer or leader is a finding of fact reviewed for clear error.” United States v. Rendon, 354 F.3d 1320, 1331 (11th Cir. 2003). “The government bears the burden of proving by a preponderance of the evidence that the defendant had an aggravating role in the offense.” United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003). We also review for clear error the district court’s factual determination of the drug quantity for which the defendant is accountable. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir.2005).

The Federal Rules of Evidence do not apply at sentencing. Fed.R.Evid.

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Bluebook (online)
370 F. App'x 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rosario-oquendo-ca11-2010.