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


7-3-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4873




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Recommended Citation
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                                              NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT




                    No. 05-4873




         UNITED STATES OF AMERICA

                          v.

         HECTOR ROSADO-FIGUEROA,
                            Appellant




   On Appeal from the United States District Court
          for the District of New Jersey
         (D.C. Crim. No. 04-cr-00595-6)
       District Judge: Hon. John C. Lifland




     Submitted Under Third Circuit LAR 34.1(a)
                  June 24, 2008

Before: SLOVITER, ROTH and BARRY, Circuit Judges

                (Filed : July 3, 2008)




                     OPINION
SLOVITER, Circuit Judge.

       Hector Rosado-Figueroa appeals the sentence imposed following his guilty plea to

a drug distribution conspiracy charge. He argues that the District Court abused its

discretion in denying him a three-point reduction in offense level for acceptance of

responsibility and timely notification of intention to plead guilty. For the following

reasons, we will affirm the sentence.

                                             I.

       On May 10, 2005, Rosado-Figueroa pled guilty to conspiring to distribute more

than fifty kilograms of cocaine, in violation of 21 U.S.C. § 846. During the hearing at

which Rosado-Figueroa entered his guilty plea, he participated in a colloquy with the

Assistant U.S. Attorney. Rosado-Figueroa admitted to driving with two men to a parking

lot in Philadelphia on August 13, 2004 and meeting up with three additional men to

arrange a transfer of cocaine. Rosado-Figueroa stated that these men then followed him

to a particular apartment in Philadelphia, where they entered the apartment and soon

exited with three boxes containing cocaine, loading them into a pickup truck. Rosado-

Figueroa admitted that he knew that these boxes contained cocaine. The government

measured approximately sixty-five kilograms of cocaine in the boxes.

       Rosado-Figueroa’s plea agreement with the government contained a stipulation

that “[a]s of the date of this letter,” he qualified for a two-level downward adjustment for

acceptance of responsibility and that he would also be eligible for a one-level downward



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adjustment for timely notification of intention to plead guilty pursuant to U.S.S.G. §

3E1.1 if his offense level was sixteen or greater. Supp. App. at 6. However, at the

sentencing hearing, the government challenged the three-level adjustment because, it

claimed, Rosado-Figueroa had given a “patently false” statement to the Probation Office

that was contained in the Pre-Sentence Report (“PSR”). App. at 22.

       The PSR contained statements by Rosado-Figueroa that tended to diminish his role

in the drug distribution conspiracy in support of his subsequently withdrawn request for a

downward adjustment for being a minor participant. For example, Rosado-Figueroa told

the Probation Office that he came to Philadelphia from Puerto Rico to attempt to

reconcile with his wife, who had moved to Philadelphia, that he did not know the other

people involved in the conspiracy, and that he was given the boxes by a garage owner he

was acquainted with named Jose. Rosado-Figueroa stated that Jose arranged the meeting

with the other defendants, and that he had not received any money, but was expecting to

receive payment from Jose later. Finally, the PSR related that Rosado-Figueroa said that

“he was not sure what type of drugs the boxes contained, but was sure they contained an

illegal substance.” PSR ¶ 32. Rosado-Figueroa expressed remorse and apologized for his

actions.

       In its objection to the PSR and at the sentencing hearing, the government argued

that Rosado-Figueroa was no longer entitled to the downward adjustment because the

information he provided to the Probation Office conflicted with evidence presented at the



                                             3
trial of Rosado-Figueroa’s co-defendant, Orlando Cardona-Rosario, over which the same

District Judge had presided. The District Court ultimately denied the departure, finding

that Rosado-Figueroa “has told a story[] which is so inconsistent with the evidence

adduced at trial, which I credit,” and that Rosado-Figueroa made “false denials of

relevant conduct . . . .” App. at 35.

       The District Court noted the evidence that there were more than forty telephone

calls from August 11 through August 13, 2004 between a cell phone in Rosado-

Figueroa’s possession which was activated in Puerto Rico on August 6, 2004 and a cell

phone found in co-defendant Cardona-Rosario’s possession. This undermined Rosado-

Figueroa’s contention he did not know Cardona-Rosario. The court also found that

Rosado-Figueroa’s statement that he had come to Philadelphia to reconcile with his wife

was suspect in light of the fact that his driver’s license listed the Philadelphia apartment

as his address. Contradicting Rosado-Figueroa’s contention that “Jose” had given him

the boxes, the court noted that he had a receipt for the purchase of the boxes that were

used to hold the cocaine. Therefore, the court concluded by a preponderance of the

evidence that Rosado-Figueroa was not telling the truth and was not entitled to a

downward departure for acceptance of responsibility.

       Before sentencing Rosado-Figueroa, the District Court offered him an opportunity

to change his story, but Rosado-Figueroa again denied making the phone calls, and

maintained that he received the cocaine boxes from Jose. The District Court then



                                              4
concluded “that the requirements of acceptance of responsibility have not been met,”

denied the downward departure, and sentenced Rosado-Figueroa to 188 months

imprisonment. App. at 47-48.

                                              II.

       A defendant seeking an offense level reduction for acceptance of responsibility has

the burden of establishing that he or she is entitled to the reduction by a preponderance of

the evidence. United States v. Boone, 279 F.3d 163, 193 (3d Cir. 2002). A district

court’s factual determination regarding acceptance of responsibility is reviewed for clear

error. Id. “The district court’s denial of the reduction is entitled to ‘great deference’

because ‘[t]he sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility.’” Id. (quoting U.S.S.G. § 3E1.1 cmt. n.5).

       The Sentencing Guidelines provide for a two-level decrease in the offense level if

the defendant “clearly demonstrates acceptance of responsibility for his offense . . . .”

U.S.S.G. § 3E1.1(a). An additional one-level decrease for timely notification of intention

to plead guilty may be applied if the defendant qualifies for the acceptance of

responsibility reduction, has an offense level of sixteen or greater, and the government

moves for this reduction. U.S.S.G. § 3E1.1(b). The application notes for § 3E1.1 provide

that pleading guilty prior to trial “combined with truthfully admitting the conduct

comprising the offense of conviction, and truthfully admitting or not falsely denying any

additional relevant conduct . . . will constitute significant evidence of acceptance of



                                              5
responsibility . . . .” U.S.S.G. § 3E1.1 cmt. n.3. “[A] plea of guilty is not dispositive as to

the defendant’s acceptance of responsibility,” United States v. Singh, 923 F.2d 1039,

1043 (3d Cir. 1991), and entering a guilty plea does not entitle a defendant to an

adjustment as a matter of right, U.S.S.G. § 3E1.1 cmt. n.3.

       The discrepancies noted by the District Court constitute, if anything, “relevant

conduct,” as defined by reference to U.S.S.G. § 1B1.3, which includes, in part, “all acts

and omissions committed, aided, abetted, counseled, commanded, induced, procured, or

willfully caused by the defendant . . . .” U.S.S.G. § 1B1.3(a)(1)(A). The discrepancies at

issue, specifically Rosado-Figueroa’s ownership and use of the cell phone, his reasons for

being in Philadelphia, and the purchase of the cardboard boxes, are all directly related to

his level of participation in the drug distribution conspiracy.

       The District Court, presiding over both Rosado-Figueroa’s sentencing hearing and

Cardona-Rosario’s trial, was in the best position to determine whether Rosado-Figueroa

was being truthful, and if not, to what extent this affected a full acceptance of

responsibility for the crime. The District Court clearly set forth its findings and provided

ample explanation for its conclusion that Rosado-Figueroa was not being truthful and

therefore had not met his burden of showing acceptance of responsibility. “[W]hen a

defendant denies relevant conduct that the district court subsequently determines to be

true, a district court may properly deny a downward adjustment for acceptance of

responsibility.” United States v. Irvin, 369 F.3d 284, 288 (3d Cir. 2004).



                                               6
                                            III.

       The District Court’s denial of the downward departure for acceptance of

responsibility is not clearly erroneous. Therefore, we will affirm its judgment of

sentence.




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