                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2006

USA v. Rose
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2961




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"USA v. Rose" (2006). 2006 Decisions. Paper 1244.
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                                                                 NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                                    No. 05-2961



                         UNITED STATES OF AMERICA

                                          v.

                                 STOKELY ROSE,
                                                     Appellant



           On Appeal from a Final Judgment of Conviction and Sentence of
            the United States District Court for the District of New Jersey
                             (D.N.J. Criminal No. 00-14)
                        District Judge: Hon. Robert B. Kugler



                     Submitted Under Third Circuit LAR 34.1(a)
                                  April 18, 2006

            Before: SLOVITER, AMBRO, and MICHEL*, Circuit Judges

                               (Filed: April 19, 2006)



                                      OPINION

MICHEL, Circuit Judge.


               *
                 Honorable Paul R. Michel, Chief Judge of the United
            States Court of Appeals for the Federal Circuit, sitting by
            designation.
       On December 30, 1999, Stokely Rose, a Jamaican national and United States

temporary resident, was arrested for brokering a deal in which he provided one kilogram

of cocaine to a confidential informant, who then “sold” the drugs to an undercover officer

in Philadelphia. Rose was charged with, and pleaded guilty to, conspiracy to distribute

more than 500 grams of cocaine in violation of 21 U.S.C. § 846. This was Rose’s first

criminal offense, placing him in criminal history category I. Because he accepted

responsibility for his behavior and agreed to plead guilty, he was granted a three-level

reduction in offense level, to offense level 23. With a criminal history category of I and

offense level of 23, the sentencing guideline range was 46-57 months. However, a drug

offense involving more than 500 grams of cocaine has a statutory minimum sentence of

60 months, see 21 U.S.C. § 841(b)(1)(B), and, pursuant to U.S.S.G. § 5G1.1(b), a

“statutorily required minimum sentence shall be the guideline sentence” if the statutory

minimum exceeds the upper end of the guideline range. Accordingly, the guideline

sentence for Rose’s drug offense was 60 months.

       Based on a government motion, the district judge departed downwardly from the

guideline sentence based on Rose’s substantial assistance to the government, and

sentenced Rose to 33 months imprisonment and five years supervised release. Upon

completion of his custodial term on May 22, 2002, Rose was released to an INS detainer

and was deported to Jamaica one month later.

       On December 30, 2003, Rose attempted illegally to reenter the United States at

Hartsfield International Airport in Atlanta. Rose presented to the United States

                                             2
Immigration Inspector an altered Canadian citizenship card with a false name. He was

referred for a secondary inspection, where he was fingerprinted and correctly identified as

Stokely Rose, and was then arrested and charged. Rose pled guilty to illegal reentry after

deportation and, on June 9, 2004, Rose was sentenced in the Northern District of Georgia

to 46 months incarceration and three years supervised release.

       Because Rose had been convicted on his plea of guilty to illegal reentry after

deportation, a Grade B violation of supervised release, see U.S.S.G. § 7B1.1 (classifying

supervised release violations), the advisory sentencing guideline range for Revocation of

Supervised Release was 4-10 months imprisonment, with a statutory maximum of 36

months. At a hearing in New Jersey federal district court on June 3, 2005, Rose pled

guilty to a violation of supervised release.

       Rose testified that he returned to the United States solely to visit his wife’s grave

outside Philadelphia. In 2001, while Mr. Rose had been imprisoned on the drug charge,

his wife was found murdered in the basement of their Philadelphia home. Prison officials

denied Rose’s and Rose’s in-laws’ requests that he be permitted to attend his wife’s

funeral. As such, Rose maintained that he had been denied the opportunity to pay his last

respects to his wife.

       However, Rose’s testimony was not corroborated by his travel documents or the

testimony of his late wife’s parents. His travel itinerary indicated that, after a one-week

layover in Atlanta, Rose was scheduled to fly to Toronto, Canada. His late wife’s parents

testified that Rose had not told them of his travel plans, and his wife’s mother testified

                                               3
that Rose would be unable to find their daughter’s gravesite without assistance, because

“traffic wise it just seems like you’re going all over the place”. Rose testified that he flew

into Atlanta rather than Philadelphia because he feared that he would be recognized and

arrested in Philadelphia. Although Rose testified that a female friend was to drive him

from Atlanta to Philadelphia, that friend did not testify at the hearing, and Rose’s in-laws

testified that they did not recognize the friend’s name.

       The district judge was unconvinced that Rose’s sole intention in reentering the

United States illegally was to visit his wife’s grave. The district judge explained that he

was departing upwardly from the recommended range for violation of supervised release

due to the substantial downward departure granted on Rose’s original drug conviction.

The district judge then sentenced Rose to 24 months imprisonment, to be served

consecutively, following his sentence for illegal reentry.

       Rose appeals, arguing that United States v. Booker, 543 U.S. 220 (2005),

implicitly lessened to “reasonable” the “plainly unreasonable” standard of review in 18

U.S.C. § 3742(e)(4), applicable to sentences imposed for violations of supervised release,

and that the sentence imposed by the district court was unreasonable. Because we affirm

the district court’s sentence under the less deferential standard of “reasonableness”, we

need not decide which standard of review applies to violations of supervised release, post-

Booker.

                                              I

       We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). See

                                              4
United States v. Cooper, 437 F.3d 324, 328 (3d Cir. 2006).

                                             II

       When a district court imposes a longer prison sentence in a Revocation of

Supervised Release proceeding, it must “consider” the now advisory sentencing range

under U.S.S.G. § 7B1.4(a), as well as “state on the record its general reasons under

section 3553(a) . . . for imposing a more stringent sentence.” United States v. Blackston,

940 F.2d 877, 894 (3d Cir. 1991).

       On appeal, Rose argues that the 24-month term of imprisonment imposed by the

district court was unreasonable given the “unusual circumstances surrounding the

violation of supervised release” and the “substantial punishment imposed for the

underlying substantive illegal re-entry conviction”. We disagree. Rose received nearly a

fifty percent downward departure for his original drug offense, only a 33-month

imprisonment term from a guideline sentence of 60 months. The district court explicitly

cited this downward departure as the basis for its upward departure on the violation of

supervised release sentence. Moreover, the 24-month term imposed is easily within the

36-month statutory maximum.

       The record shows that the district court fully considered Rose’s contention that he

attempted illegal reentry solely to visit his wife’s grave, and found his uncorroborated

testimony unpersuasive. The district judge stated that he was “not convinced at all” by

Rose’s explanation, and we afford deference to a district court’s findings on credibility.

United States v. Boone, 279 F.3d 163, 180 (3d Cir. 2002).

                                             5
       We also reject Rose’s assertion that the length of the sentence imposed for the

underlying substantive illegal reentry conviction requires leniency on the violation of

supervised release sentence. Rose committed two separate crimes–illegal reentry and

violation of supervised release–and was sentenced for each. It was within the district

court’s discretion to order the sentence for violation of supervised release to be served

concurrent with or consecutive to the illegal reentry sentence. United States v. Swan, 275

F.3d 272, 281-82 (3d Cir. 2002). The district judge considered and rejected Rose’s

arguments for leniency, stating that “[t]here’s really no such thing as a free crime. I think

to treat this leniently would send the wrong message to people that have gotten a

tremendous break from the court originally that we have some sort of immunity or

impunity to this after violating the conditions of Supervised Release”.

       Because the sentence imposed by the district court for violation of supervised

release was reasonable, the judgment of sentence is affirmed.

_____________________




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