United States Court of Appeals For the First Circuit

No. 11-2242

UNITED STATES OF AMERICA,

Appellee,

v.

JULIO ROSARIO-OTERO, a/k/a Hotdog,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Howard, Selya and Thompson, Circuit Judges.

Raymond L. Sanchez Maceira for appellant. Olga B. Castellón-Miranda, Assistant United States Attorney with whom Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.

September 4, 2013 HOWARD, Circuit Judge. Julio Rosario-Otero appeals the

sentence imposed after his conviction for possession with intent to

distribute illegal narcotics. He claims that the sentencing court

should have granted a continuance to allow him to marshal necessary

evidence. He also argues that the sentencing court's

individualized finding as to the amount of drugs that he could have

reasonably foreseen was erroneous. Neither argument persuades us.

We will, however, vacate Rosario-Otero's sentence as to the term of

supervised release sua sponte and remand for the limited purpose of

recalculating that term.

I.

This case is before us for the second time. See United

States v. Fernández-Hernández,

(1st Cir. 2011). As the

underlying facts of Rosario-Otero's conviction are recounted in our

previous opinion, we limit ourselves to the facts relevant to this

appeal.

1. Prior History

Rosario-Otero was a member of the "Los Dementes" drug

trafficking organization operating in the municipalities of Cataño

and Guaynabo in Puerto Rico. The government charged him and other

members of the organization with various conspiracy and drug

counts. A jury convicted Rosario-Otero of conspiracy to possess

with intent to distribute, see

, and possession with

intent to distribute both cocaine and crack cocaine, see

§

-2- 841(a)(1). The jury made specific drug quantity findings for the

possession offenses: at least 150 grams of crack cocaine and at

least 5 kilograms of cocaine. The district court, based on the

jury's finding as to drug quantity, sentenced him to 151 months'

incarceration and 10 years' supervised release. Rosario-Otero

challenged his convictions in a Rule 29 motion, which the district

court denied.

On appeal, we upheld Rosario-Otero's convictions both for

participating in the drug conspiracy and for the substantive

possession offenses. We also concluded, however, "that the

evidence was insufficient to support a finding, beyond a reasonable

doubt, that Rosario was responsible for the elevated drug

quantities of which he was convicted, i.e., at least one hundred

fifty grams of crack-cocaine and five kilograms of cocaine."

Fernández-Hernández,

. Consequently, we vacated

Rosario-Otero's sentence and remanded for resentencing. In doing

so, we "express[ed] no view as to the [drug] quantities the

sentencing court may properly attribute to Rosario when the

standard, unlike the standard for conviction, is preponderance of

the evidence."

at 71 n.14.

2. Resentencing

We issued our decision in Fernández-Hernández on June 30,

2011. On August 25, Rosario-Otero requested that the district

court reschedule his resentencing hearing. He also requested a

-3- transfer from the mainland United States to Puerto Rico. The court

granted both requests, setting the hearing for October 5, 2011.

Rosario-Otero arrived in Puerto Rico one week before the hearing.

However, due to scheduling conflicts, he did not meet with his

counsel until the night before the resentencing hearing.

At the hearing the following day, Rosario-Otero, through

his counsel, requested a continuance. This oral request was not

accompanied by any written request, nor had Rosario-Otero

previously discussed a continuance with the government.

Nonetheless, Rosario-Otero's counsel argued that a continuance was

necessary because Rosario-Otero's recent arrival in Puerto Rico had

not given him enough time to prepare for the resentencing. In

particular, counsel expressed a need to call Juan Rivera-Gómez, a

co-defendant at trial, to testify. When the district court asked

where Rivera-Gómez was, Rosario-Otero's counsel responded, "He's in

Miami, I believe." The district court denied this continuance,

concluding that, notwithstanding Rosario-Otero's delayed arrival in

Puerto Rico, he had ample time to prepare for the resentencing,

including calling any witnesses.

The government then presented evidence regarding the

amount of drugs that would have been foreseeable to Rosario-Otero

based on his involvement in the trafficking organization. William

Rosario García ("William"), one of the trial witnesses, testified

at the resentencing hearing that the Los Dementes organization

-4- processed roughly one kilogram of cocaine into crack cocaine each

week at "Apartment 50," located at the Juana Matos housing project.

William also testified that he saw Rosario-Otero go into this

apartment several times a week, often to pick up packaged drugs.

William testified that Rosario-Otero owned a specific

drug point in Cataño. He learned this information from the drug

sellers who worked at that drug point. Moreover, on one occasion

William washed Rosario-Otero's car and in return Rosario-Otero gave

him crack cocaine in vials with gray caps. According to William,

this matched the color of the drug vials distributed at this

particular drug point. At the time, Rosario-Otero told William

that these vials came from his drug point, but did not specify

which drug point he owned.

Finally, William stated that he saw Rosario-Otero handle

drugs on two additional occasions. In both instances, Rosario-

Otero asked William to process cocaine into crack cocaine and taste

it for him. One of these encounters occurred at the Coqui Housing

Project across the street from the Juana Matos Housing Project.

William did not specify the location of the second encounter. He

also admitted that he had failed to mention this second encounter

during his trial testimony.

On cross-examination, Rosario-Otero sought to demonstrate

inconsistencies between William's trial testimony and his testimony

at resentencing. In particular, he noted how William's testimony

-5- had become more specific in a number of respects since trial.

William had been unsure about the various colors of drug caps at

trial, yet exhibited no such hesitancy at resentencing. Moreover,

at trial he had testified to having seen Rosario-Otero at Apartment

50 at least two times, yet at resentencing he revised that estimate

to "[s]everal times a week."

William was the only witness at the resentencing hearing.

At the conclusion of his testimony, Rosario-Otero asked to call

Agent Cristobal Rodriguez. Agent Rodriguez had previously

interviewed William during the investigation of the Los Dementes

organization, and Rosario-Otero hoped that Agent Rodriguez could

show how William's testimony had changed over time. However,

Rosario-Otero had not subpoenaed Agent Rodriguez and the district

court refused to continue the proceedings in order to bring him in.

Rosario-Otero's counsel argued that the shifting substance of

William's testimony raised an unforeseen necessity, but the court

determined that William's testimony contained "the same or musical

variations of the same" testimony that he had offered at trial.

The district court further found William's testimony credible.

The court, making "a conservative measure" of the amount

of cocaine attributable to Rosario-Otero, concluded that

Rosario-Otero could have foreseen the possession and distribution

of 5 to 15 kilograms of cocaine, and imposed a sentence of 151

-6- months' incarceration and 10 years' supervised release, which

matched the original sentence. This appeal followed.

II.

Rosario-Otero asks us to vacate his sentence and remand

the case to a different district court judge on the grounds that

the district court (1) abused its discretion in failing to grant

the request for a continuance that he presented at the beginning of

the resentencing hearing; and (2) erred in its drug quantity

determination.

A. Denial of Continuance

We review the district court's denial of a continuance

for abuse of discretion. United States v. Fink,

(1st Cir. 2007). When evaluating a request to continue, one

consideration is "the reasons contemporaneously presented in

support of the request for the continuance." West v. United

States,

(1st Cir. 2011) (citation omitted)

(internal quotation marks omitted). A court also considers the

amount of time needed for preparation compared to the actual time

available; how diligently the movant used that time and whether he

contributed to his perceived predicament; the complexity of the

case; other available assistance; the probable utility of a

continuance; inconvenience to others; and the likelihood of

injustice if there is no continuance. See

"Requests for

continuances of sentencing are disfavored given the district

-7- court's obligation to 'impose sentence without unnecessary delay.'"

United States v. Espinola,

(1st Cir. 2007)

(quoting Fed. R. Crim. P. 32(b)(1)), judgment vacated on other

grounds by Espinola v. United States,

(2008).

The district court did not abuse its discretion in

denying Rosario-Otero's request for a continuance. Rosario-Otero's

contemporaneous justification for a continuance was that he needed

to bring in Juan Rivera-Gómez as a witness, but it appears that the

real issue was his failure to meet with his counsel until the night

before the resentencing hearing. This was not a compelling reason

to grant his belated request. Indeed, the circumstances that

prevented Rosario-Otero from meeting with his counsel until the

eleventh hour would have been apparent long before the day of the

hearing. In particular, Rosario-Otero had plenty of time to inform

the court that his transfer to Puerto Rico was delayed by about one

month. If he anticipated that this delay could hamper his ability

to present evidence at resentencing, he should not have waited

until the day of the hearing to make an oral request for a

continuance.

Rosario-Otero argues that the government is partially to

blame for his inability to gather the appropriate witnesses because

it did not inform him of the evidence it would present at

resentencing. This claim, which the government disputed at the

hearing and again in its appellate brief, is belied by the record.

-8- At sentencing, Rosario-Otero's counsel said that he was unaware of

the evidence that the government would present that day. When

asserting the need for Rivera-Gómez's testimony, however, he

acknowledged that "we received evidence from William Rosario

explaining to us [the evidence relating to "Apartment 50"]. [And]

Juan Rivera-Gómez, he was the owner of that apartment." Rosario-

Otero was attuned to what the government would try to prove at

resentencing, and there is nothing to suggest that the government

prejudiced his ability to prepare for the hearing.

Moreover, Rosario-Otero has not shown the probable

utility of a continuance or any injustice resulting from its

denial. Rosario-Otero admitted that he had not spoken with Rivera-

Gómez prior to the resentencing -- or that he even knew where

Rivera-Gómez was located -- so it cannot be said with any

confidence that Rivera-Gómez's hypothetical testimony, if

forthcoming, would have changed the result of Rosario-Otero's

resentencing.1

1 Rosario-Otero made a second request for a continuance at the close of William's testimony, claiming that he needed to call Agent Rodriguez to impeach William. The same deficiencies that sink his first request for a continuance apply with equal force to this one. In addition, as we explain later, there was no meaningful inconsistency between William's trial testimony and his sentencing testimony -- further evidence that the district court did not abuse its discretion in denying this second request for a continuance.

-9- B. Drug Quantity Determination

We review a district court's factual findings at

sentencing, including drug quantity, for clear error, United States

v. Cintrón-Echautegui,

(1st Cir. 2010), which arises

only when "we form a strong, unyielding belief that a mistake has

been made." United States v. Marquez,

(1st Cir.

2002) (quoting Cumpiano v. Banco Santander,

(1st

Cir. 1990)). "The sentencing court must determine drug quantity

only by a preponderance of the evidence." Cintrón-Echautegui,

.

The district court did not commit clear error in arriving

at its drug calculation. Although there was testimony that the Los

Dementes organization distributed a kilogram of cocaine each week

for several years, the district court limited its drug finding to

a total of between 5 and 15 kilograms of cocaine. The government

produced sufficient evidence for the district court to conclude

that such amount was reasonably foreseeable to Rosario-Otero.

William testified that Rosario-Otero was at Apartment 50

several times each week, often to pick up packaged drugs.

Apartment 50 was the center of activity for Los Dementes, and

Rosario-Otero's repeated presence there indicates his awareness of

the scope of the trafficking organization. In addition, William

provided testimony that Rosario-Otero ran a drug point for Los

Dementes. Whereas we previously found William's trial testimony

-10- regarding Rosario-Otero's drug point lacking in detail or

corroboration, Fernández-Hernández,

, at the

resentencing hearing William gave concrete explanations for how he

knew this fact. He explained not only that sellers at the drug

point identified Rosario-Otero as the owner, but also that Rosario-

Otero gave William drug vials matching those sold at the drug

point. William also recounted several occasions when Rosario-Otero

personally gave him small amounts of cocaine to process into crack

and to test its potency. Based on this fact, the sentencing court

could determine that Rosario-Otero's involvement went beyond merely

picking up drugs to sell and extended to processing the drugs.

Taken in the aggregate, this evidence supports the sentencing

court's finding as to foreseeability.

Rosario-Otero's main argument on appeal is that William's

testimony changed between trial and resentencing. We disagree with

this characterization. While William's resentencing testimony was

more detailed than his trial testimony, it was not inconsistent.

Moreover, the court was not required to reject William's

explanation that he remembered new facts that he had failed to

mention at trial. Rosario-Otero had the opportunity to cross-

examine William, and could have used the trial transcript to

impeach his testimony if there were any material inconsistencies.

Rosario-Otero nevertheless claims that, even if the

testimony was not inconsistent, William's improved memory at

-11- resentencing raises credibility issues that the district court

should have factored into its analysis. But the district court was

not oblivious to the question of William's credibility; it simply

reached a conclusion contrary to Rosario-Otero's. Such credibility

determinations are left to the sentencing court. See United States

v. Platte,

(1st Cir. 2009) ("In conducting [a

drug quantity calculation,] credibility determinations are part of

the sentencing court's basic armamentarium."). There was no clear

error in the sentencing court's drug quantity calculation.

C. Term of Supervised Release

Based on its drug quantity finding, the district court

imposed a sentence of 151 months' incarceration and a 10 year term

of supervised release. While the district court committed no

reversible error in calculating Rosario-Otero's prison sentence,

there was an unnoticed error in its calculation of the term of

supervised release, which we now vacate. The applicable statutory

section,

, establishes different sentencing ranges

based on the drug quantity involved in the crime. In the case of

cocaine, possession without a finding as to quantity calls for "a

term of supervised release of at least 3 years" or, if there was a

prior conviction, "at least 6 years."

(b)(1)(C).

A drug quantity finding of 5 kilograms or more of cocaine (as the

sentencing court found) requires a mandatory minimum term of

-12- supervised release of 5 years, or 10 years with a prior conviction.

§ 841(b)(1)(A).

For reasons that are unclear to us, the Pre-sentence

Investigation Report (PSI Report) stated that Rosario-Otero faced

a mandatory minimum term of supervised release of 10 years given a

finding of at least 5 kilograms of cocaine.2 The district court

adopted this recommendation without any explanation. The mandatory

minimum term of supervised release should have been 5 years, since

Rosario-Otero had no prior convictions on his record according to

the PSI Report. Even if he had a prior conviction, the government

would have been required to give notice that it would rely on that

prior conviction to increase his sentence. See

;

Suveges v. United States,

(1st Cir. 1993) ("The filing

of . . . an information notice [under

] is

jurisdictional."). The probation officer seems to have committed

a simple error in calculating the mandatory minimum, and the

district court relied on that incorrect calculation in imposing a

term of supervised release.

2 The PSI Report, which was prepared for the original sentencing, relied on the jury's finding of elevated drug quantities, which we vacated in United States v. Fernández- Hernández,

(1st Cir. 2011). There was no new PSI Report prepared for resentencing. The sentencing court, however, made the identical factual finding as to drug quantity and imposed the identical sentence, so we consider the original PSI Report to understand the sentencing court's rationale.

-13- Though Rosario-Otero did not raise this issue below or on

appeal, we consider this error both plain enough and weighty enough

to merit our review sua sponte. The four-pronged test for plain

error review requires that the (1) "error" is (2) "plain" and (3)

"affects substantial rights," and that the error (4) "seriously

affects the fairness, integrity or public reputation of judicial

proceedings." United States v. Olano,

(1993)

(citations omitted) (internal quotation marks and alterations

omitted). The fourth prong incorporates a standard that a court

may use to evaluate whether to raise an issue sua sponte. See

United States v. Atkinson,

(1936). This easily

avoidable error doubled the minimum term of Rosario-Otero's

supervised release. Having discovered the error, failure to

correct it would reflect poorly on our ability to dispense justice,

even if it has not been briefed by either side. See United States

v. Matos,

(1st Cir. 2010) (vacating a sentence

where the term of supervised release exceeded the statutory

maximum); United States v. Rodriguez,

(3d

Cir. 2012) (vacating a sentence where the PSI Report erroneously

doubled the mandatory minimum term of supervised release); see also

United States v. Barnes,

, 261 n.5 (1st Cir. 2001)

(holding that error in calculating a term of supervised release

constitutes plain error). Accordingly, we vacate the term of

-14- supervised release and remand the case to the district court to

recalculate that element of Rosario-Otero's sentence.3

III.

For the foregoing reasons, we affirm the sentence as to

its term of incarceration; we vacate the sentence as to the term of

supervised release and remand the case for further action

consistent with this opinion.

3 In recalculating the term of supervised release, the district court must take heed of the Supreme Court's recent decision in Alleyne v. United States,

(2013), which held that "any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury,"

. Thus, if the district court seeks to impose a mandatory minimum term of supervised release, it must rely only on the facts found by the jury. The Supreme Court noted, however, that the holding in Alleyne "does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment."

. "While such findings of fact may lead judges to select sentences that are more severe than the ones they would have selected without those facts, the Sixth Amendment does not govern that element of sentencing."

at 2161 n.2.

-15-