                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-2-2008

USA v. Lopez-Rosado
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3331




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"USA v. Lopez-Rosado" (2008). 2008 Decisions. Paper 914.
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                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                    Case No: 07-3331

                            UNITED STATES OF AMERICA

                                              v.

                              CARLOS LOPEZ-ROSADO,

                                             Appellant


                    On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                             District Court No. 04-CR-00189-4
                   District Judge: The Honorable William W. Caldwell


                    Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                                      July 1, 2008

                Before: RENDELL, SMITH, and FISHER, Circuit Judges

                                   (Filed: July 2, 2008)


                                        OPINION


SMITH, Circuit Judge.

       Carlos Lopez-Rosado pleaded guilty to an information charging him with

distribution and possession with intent to distribute cocaine and marijuana in violation of

21 U.S.C. § 841. The United States District Court for the Middle District of Pennsylvania

                                             1
sentenced Lopez-Rosado to 148 months of imprisonment. We vacated that sentence,

however, and remanded for resentencing in accordance with United States v. Booker, 543

U.S. 220 (2006). On remand, the prosecution offered testimony by a government agent

regarding the quantity of cocaine and marijuana at issue, as well as Lopez-Rosado’s role

in the offense. At the conclusion of that testimony, the District Court resentenced Lopez-

Rosado to 148 months. This timely appeal followed.1

       Lopez-Rosado contends that he was simply a supplier of the cocaine and marijuana

and that the District Court erred by applying a two-level enhancement under U.S.S.G. §

3B1.1(c) for his role in the offense as an organizer, leader, manager, or supervisor.2 We

review for clear error the District Court’s factual findings with regard to a defendant’s

role in the offense. United States v. Belletiere, 971 F.2d 961, 964 (3d Cir. 1992). We

exercise plenary review of the District Court’s interpretation of the Sentencing

Guidelines. Id.

       In United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992), we considered

whether a district court erred by enhancing a defendant’s offense level under U.S.S.G.




       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. Appellate jurisdiction exists
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v. Cooper, 437 F.3d 324,
327-28 (3d Cir. 2006).
       2
         The government asserts that Lopez-Rosado waived this issue when he advised the
District Court at the resentencing that he had no other objections to the presentence investigation
report. Because defense counsel, only seconds later, also advised the District Court that this case
was remanded on three issues, including the leadership role, we conclude that the issue was not
waived.

                                                 2
§ 3B1.1 based on his role in the offense. We declared that “[c]learly, § 3B1.1 is intended

to apply to criminal activity engaged in by more than one participant.” Id. The

Commentary to U.S.S.G. § 3B1.1 instructs that “[t]o qualify for an adjustment under this

section, the defendant must have been the organizer, leader, manager, or supervisor of

one or more other participants.” U.S.S.G. § 3B1.1, applic. note 2 (emphasis added). At

the resentencing hearing, the government agent’s testimony established that Lopez-

Rosado acted in a supervisory capacity by directing the activity of a drug courier, who

transported significant amounts of cocaine from North Carolina to Pennsylvania. Nor has

Lopez-Rosado challenged that assertion. Accordingly, we find that the District Court did

not err by enhancing Lopez-Rosado’s offense level by two points under U.S.S.G. §

3b1.1(c) based on his supervision of at least one other participant. We will affirm the

judgment of the District Court.




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