United States v. Rosario
United States v. Rosario
Opinion of the Court
SUMMARY ORDER
These appeals return to us following remands pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). Ricardo Rosario appeals from a December 1, 2006 order of the United States District Court for the District of Connecticut (Underhill, J.), holding that Rosario was not entitled to safety-valve relief and that the court would not have imposed a nontrivially different sentence from its original sentence of 240 months’ imprisonment. Felix DeJesus appeals from the district court’s April 30, 2007, 2007 WL 1297155, order holding that it would not have sentenced Felix to a nontrivially different sentence from its original sentence of 360 months’ imprisonment.
We find no error in the district court’s determination that Rosario is ineligible for safety-valve relief on the ground that he possessed a firearm in connection with the offense of conviction. U.S.S.G. § 501.2(a)(2). The district court credited the testimony of Frank Estrada that Rosario owned a Glock 9mm and possessed
With respect to DeJesus we find, contrary to the government’s position at oral argument, that a remand is warranted pursuant to United States v. Regalado, 518 F.3d 143 (2d Cir. 2008). In Regalado, we remanded to allow the district court to determine “whether it would have imposed a non-Guidelines sentence knowing that it had discretion to deviate from the [crack] Guidelines to serve [the objectives of sentencing under 18 U.S.C. § 3553(a) ].” Id. at 149. This case is factually distinguishable from Regalado insofar as DeJesus was sentenced based on combined quantities of crack and heroin. Nevertheless, as in Regalado, we cannot say whether the district court would have imposed a non-Guidelines sentence had it been fully aware of its discretion to deviate from the 100-to-l crack-cocaine ratio in determining DeJesus’ appropriate sentence.
On remand, we also invite the district court to consider DeJesus’ claim that it was inappropriate to sentence him to 20 months more imprisonment than his brother, Charles, given that Charles had a higher adjusted offense level, a higher criminal history category, and an equal or greater role in the drug conspiracy at issue.
For the foregoing reasons, the judgment of Ricardo Rosario is AFFIRMED; the judgment of Felix DeJesus is REMANDED for further proceedings consistent with this order.
. The government attempts to explain the difference in sentences by noting that the evidence against the brothers "was not identical and included evidence about criminal transactions involving Felix, but not Charles, Dejesus.” The government relies on two encounters that Felix had with law enforcement. First, in 1997, detectives seized a semi-automatic handgun and heroin from Felix's apartment. Second, in 1998, Felix was apprehended along with Estrada by an agent in Miami, and, as a result of this encounter, the DEA recovered $14,000 in cash. It is not clear from the record whether the district court considered these differences in evidence, or any others, in sentencing Felix. And we leave it to the district court to decide on remand whether these or any other differences in evidence may justify the disparate sentences received by the DeJesus brothers.
Reference
- Full Case Name
- United States v. Ricardo ROSARIO, Felix DeJesus
- Cited By
- 1 case
- Status
- Published