                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2888




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Recommended Citation
"Lopez-Rosado v. USA" (2007). 2007 Decisions. Paper 1085.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1085


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 06-2888


                           UNITED STATES OF AMERICA

                                            v.

                              CARLOS LOPEZ-ROSADO,

                                                  Appellant



                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 04-cr-00189-4)
                    District Judge: Honorable William W. Caldwell


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    May 7, 2007

           Before: RENDELL, JORDAN and HARDIMAN, Circuit Judges.

                                 (Filed: May 18, 2007 )


                                        OPINION


HARDIMAN, Circuit Judge.

      Carlos Lopez-Rosado pleaded guilty to one count of distribution and possession

with intent to distribute cocaine hydrochloride and marijuana, in violation of 21 U.S.C.
§ 841(a)(1). At sentencing on December 20, 2004, the District Court determined that

Lopez-Rosado had an offense level of 33 and a criminal history category of I, which

resulted in a Sentencing Guideline range of 135 to 168 months.1 The District Court

imposed a sentence of 148 months of imprisonment, three years of supervised release,

and $2,100, which included a fine of $1,000, community restitution of $1,000, and a

special assessment of $100.

       Lopez-Rosado filed a timely appeal challenging only his sentence, arguing that the

District Court: (1) treated the Guidelines as mandatory in violation of United States v.

Booker, 543 U.S. 220 (2005);2 (2) violated his Sixth Amendment right to trial by jury by

engaging in judicial factfinding; (3) erred in finding that the quantity of cocaine

hydrochloride involved was at least fifteen but less than fifty kilograms; and (4) erred in

enhancing his sentence for leadership role because he did not have an opportunity to

object to the enhancement. Because Lopez-Rosado’s first argument requires that his

sentence be vacated and remanded, we address that argument alone.




       1
        The District Court found a base offense level of 34, then assessed a two-level
enhancement for leadership role and a three-level downward departure for acceptance of
responsibility.
       2
         Although Lopez-Rosado did not file a direct appeal from his sentence, the
District Court by order of May 25, 2006 permitted him to file a direct appeal nunc pro
tunc based on allegations made in his 28 U.S.C. § 2255 motion that he wanted to file a
direct appeal but his counsel did not file one on his behalf. The Government here agrees
that Lopez-Rosado is thus in the same position as defendants sentenced before Booker but
pursuing a direct appeal after Booker.

                                              2
       We have established a general policy to vacate and remand all sentences for

“defendants sentenced under the previously mandatory regime whose sentences are being

challenged on direct appeal.” United States v. Davis, 407 F.3d 162, 165 (3d Cir. 2005)

(en banc). As we reasoned in Davis, we are unable to “ascertain whether the District

Court would have imposed a greater or lesser sentence under an advisory framework.”

Id. at 164-65. It is undisputed in the instant case that the District Court sentenced Lopez-

Rosado under the mandatory Sentencing Guidelines framework in effect prior to Booker.

The Government thus concedes that Lopez-Rosado should be resentenced.

       Furthermore, in the instant appeal the other sentencing issues that Lopez-Rosado

raises are best determined by the District Court in the first instance. See id. at 166. The

Government also concedes that “[a]ny matter that the Appellant wishes to raise at that

time concerning the enhancement for role in the offense or regarding drug quantity can

be taken up before the district court.”

       Accordingly, we will vacate the sentence and remand this case for resentencing in

accordance with Booker and Davis.




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