                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-18-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3155




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                                                              NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No: 02-3155

                           UNITED STATES OF AMERICA

                                              v.

                                  WARREN ROSSIN,

                                         Appellant
                                 __________________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 00-CR-564)
                    District Judge: The Honorable Petrese B. Tucker
                                 __________________

                            Submitted Pursuant to LAR 34.1
                                  November 4, 2003

                  Before: McKEE, SMITH and WEIS, Circuit Judges

                              (Filed: November 17, 2003 )

                                    _____________

                              OPINION OF THE COURT
                                  _____________

SMITH, Circuit Judge.

      Defendant Warren Rossin pleaded guilty to conspiring to distribute more than

1,000 kilograms of marijuana. He stipulated in a Guilty Plea Agreement to the fact that

he had a prior Texas “conviction for a felony drug offense” for which he “was sentenced
to an eight year term of probation.” Based on this prior Texas conviction, the

presentence investigation report indicated that the mandatory minimum sentence of

twenty years under 21 U.S.C. § 841(b)(1)(A) was applicable.1 At sentencing in the

United States District Court for the Eastern District of Pennsylvania, Rossin argued that

the minimum sentence of twenty years under § 841(b)(1)(A) was not applicable because

his prior Texas drug conviction, which resulted in a deferred adjudication, was not “final”

as required by the statute. In addition, Rossin argued that the calculation of his offense

level under the United States Sentencing Guidelines (“U.S.S.G.”) should not have

included an upward adjustment for an obstruction of justice under U.S.S.G. § 3C1.1

because certain letters he wrote from prison to two acquaintances were not threatening.

Rossin also asserted that he was entitled, because of his guilty plea, to a downward

adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1.

         The District Court rejected Rossin’s argument with regard to the finality

requirement of § 841(b)(1)(A) and also enhanced Rossin’s guideline calculation by two

points for obstruction of justice, finding that the letters could reasonably be interpreted as

threatening. As a consequence, the Court also refused to reduce Rossin’s offense level by

three points for acceptance of responsibility. Rossin’s resulting offense level was 37.

  1
      Section 841(b)(1)(A) provides, in relevant part, that:

         If any person commits such a violation after a prior conviction for a felony
         drug offense has become final, such person shall be sentenced to a term of
         imprisonment which may not be less than 20 years and not more than life
         imprisonment. . . .

                                                2
With a criminal history category of II, and without taking into account the § 841(b)(1)(A)

violation, his guideline range for imprisonment would have been 235 to 293 months. 2

Consistent with the mandatory minimum of twenty years pursuant to § 841(b)(1)(A),

however, the guideline range became 240 to 297 months. The District Court sentenced

Rossin at the bottom of that range, i.e., 240 months.

       Rossin challenges the District Court’s conclusion that his prior Texas conviction

was final. While Rossin does not contest the District Court’s finding that the letters he

authored could be reasonably interpreted as threatening, he asserts for the first time, that

the obstruction of justice enhancement was improper because the District Court failed to

make any finding that the allegedly threatening letters obstructed or impeded the

administration of justice in this case.

                                              I.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise

appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our review is

plenary over the issue of whether Rossin’s prior Texas conviction is “final” for purposes

of 21 U.S.C. § 841(b)(1)(A). United States v. Meraz, 998 F.2d 182, 183 (3d Cir. 1993).

We also exercise plenary review over the District Court’s interpretation and application of

the sentencing guidelines. United States v. Jenkins, 275 F.3d 283, 286 (3d Cir. 2001).

  2
   Rossin argues that, had the obstruction of justice enhancement not been applied and
had he received the acceptance of responsibility downward adjustment, his offense level
would have been 32, resulting in a substantially lower guideline range of 135 to 168
months.

                                              3
We review the District Court’s factual findings for clear error. Id. Because the basis for

Rossin’s challenge to the District Court’s enhancement for obstruction of justice was

raised for the first time on appeal, however, we review for plain error. Fed. R. Crim. P.

52(b). Accordingly, there must be an “error” which is “plain” and that “affects

substantial rights.” United States v. Olano, 507 U.S. 725, 732 (1993). An error affects

substantial rights if it was prejudicial to the defendant and affected the outcome of the

district court proceeding. Id. at 734. A decision to correct the forfeited error is “within

the sound discretion of the court of appeals, and the court should not exercise that

discretion unless the error ‘seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.’” Id. (quoting United States v. Young, 470 U.S. 1, 15 (1985)).

                                                II.

         In United States v. Meraz, 998 F.2d at 182, we considered whether a deferred

sentence under New Mexico law constituted a “final” prior conviction for purposes of

sentencing under former § 841(b)(1)(B).3       Under New Mexico’s law, the defendant’s

prior conviction had been dismissed upon successful completion of her probationary

  3
      Section 841(b)(1)(B) was similar to § 841(b)(1)(A), providing:

         If any person commits such a violation after one or more prior convictions .
         . . for a felony under any other provision of this subchapter . . . or other law
         of a State . . . relating to narcotic drugs . . . have become final, such person
         shall be sentenced to a term of imprisonment which may not be less than 10
         years. . . .

This language was replaced in 1994 pursuant to Pub. L. 103-322, § 90105(a), and is now
the same as that in § 841 (b)(1)(A).

                                                4
period. We determined, however, that the interpretation of § 841(b)(1)(B)’s language

was a matter of federal law and declared that the “test for finality under § 841(b)(1)(B) is

whether a prior conviction is subject to attack on direct appeal[.]” Id. at 184. Because

the defendant had not taken an appeal from the imposition of her deferred sentence and

the time for doing so had expired, we concluded that the conviction was final.

       In holding that Meraz’s prior conviction warranted enhancing her sentence, we

were guided by the fact that even though New Mexico’s law provides for the dismissal of

the criminal charges upon completion of probation, the conviction itself was not erased

for purposes of New Mexico’s habitual offender statute. Id. We declared that “[o]ur

result supports the general purpose of habitual offender statutes, which is to deter

convicted criminals from committing crimes and to incarcerate for longer periods those

who have shown an inclination to commit crimes.” Id.

       In United States v. Vasquez, 298 F.3d 354 (5th Cir. 2002) (per curiam), the Fifth

Circuit considered a challenge to the finality requirement of § 841(b)(1)(A) raised by a

defendant previously convicted under Texas law of a drug offense which resulted in a

deferred adjudication. That court, relying on its own precedent in United States v.

Morales, 854 F.2d 65 (5th Cir. 1988), declared that for “purposes of sentencing

enhancement under § 841(b)(1), a conviction does not become final until the time for

seeking direct appellate review has elapsed[.]” Vasquez, 298 F.3d at 359. After noting

that Texas law afforded a defendant the right to appeal issues relating to the deferred



                                             5
adjudication only when the deferred adjudication was first imposed, and that there was a

separate and distinct right to appeal any revocation thereof,4 the Fifth Circuit concluded

that Vasquez’s conviction was final because it had not been appealed within the thirty day

period following his guilty plea. The Court concluded that the appropriate inquiry was

whether the time for appealing the entry of deferred adjudication had passed, not whether

the deferred adjudication had been revoked. Id.

       Rossin acknowledges Meraz’s test for finality and Vasquez’s holding with regard

to deferred adjudication under Texas law. He contends, however, that his conviction is

not final because under the Texas statute the proceeding is deferred “without entering an

adjudication of guilt.” Tex. Code Ann., art. 42.12, § 5(a). Rossin’s argument, while not

entirely unpersuasive, ignores the context of this language. The statute provides for

deferral by the tribunal only “after a plea of guilty or nolo contendere, hearing the

evidence, and finding that it substantiates the defendant’s guilt[.]” Id. (emphasis added);

see also Visosky v. State, 953 S.W.2d 819, 821 (Tex. App. 1997) (“The option of deferred

adjudication by its very terms is limited to those defendants who actually plead guilty or



  4
    See Tex. Code Crim. Proc., Art. 42.12, § 23(b), which specifies that the right to appeal
a conviction and punishment is “accorded the defendant at the time he is placed on
community supervision. When he is notified that his community supervision is revoked
for violation of the conditions of community supervision and he is called on to serve a
sentence in a jail or in the institutional division of the Texas Department of Criminal
Justice, he may appeal the revocation.” See also Manuel v. State, 994 S.W.2d 658 (Tex.
Crim. App. 1999) (en banc) (holding that issues relating to deferred adjudication order
must be raised when the deferred adjudication is first imposed and may not be raised a
second time if the deferred adjudication is subsequently revoked).

                                              6
nolo contendere before the court after waiving a jury trial.”). Thus, there is a finding of

guilt that affords the defendant a right to appeal issues regarding the merits of the offense

of conviction. Absent an appeal following that admission of guilt, the conviction is final

for purposes of § 841(b)(1)(A).

       Contrary to Rossin’s assertion, we find Meraz and Vasquez on point. In the

absence of any evidence presented to the District Court that Rossin filed an appeal of his

Texas deferred adjudication and the imposition of probation, we conclude that the

conviction was final for purposes of § 841(a)(1)(A). Accordingly, the District Court did

not err by sentencing Rossin to imprisonment for the minimum term of twenty years, i.e.,

240 months, required by § 841(b)(1)(A).5

       We will affirm the judgment of the District Court.

                      ______________________________________

TO THE CLERK:

       Please file the foregoing Opinion.

                                            By the Court,

                                                  /s/ D. Brooks Smith
                                                     Circuit Judge




  5
   We need not address Rossin’s challenge of the District Court’s calculation of his
offense level because Rossin must serve the mandatory minimum sentence of twenty
years, i.e., 240 months, and a recalculation of his offense level will not result in a lower
guideline range. In short, he cannot demonstrate that he was prejudiced by the District
Court’s enhancement and its denial of an acceptance of responsibility adjustment.

                                              7
