United States v. Rosario

Case: 24-20319 Document: 56-1 Page: 1 Date Filed: 05/02/2025

United States Court of Appeals for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit FILED

No. 24-20319

May 2, 2025

Summary Calendar

____________ Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Daruin Anelby Rosario,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CR-635-1

______________________________

Before Elrod, Chief Judge, and Haynes and Duncan, Circuit Judges. Per Curiam: *

In November 2020, Daruin Anelby Rosario was charged with possession of stolen mail and conspiracy to steal and possess stolen mail. Rosario pleaded guilty and was sentenced to twenty-one months of imprisonment to be followed by two years of supervised release on each charge, to run concurrently. Rosario’s term of supervised release commenced on July 12, 2022. In November 2023, Rosario’s probation officer petitioned the court for a warrant on the grounds that Rosario violated several conditions of his supervised release. 1 Rosario’s probation officer recommended that the court revoke Rosario’s term of supervision. Rosario pleaded true to only the new law violations contained in the superseding petition, specifically, (i) possession of stolen mail; (ii) unlawful possession of a postal key; (iii) being a felon in possession of a firearm; and (iv) aggravated identity theft.

During the sentencing hearing, the district court heard argument from Rosario’s counsel and the government regarding both the new law violations to which Rosario pleaded true 2 and the revocation of his supervised release. Relevant here, the district court revoked Rosario’s term of supervised release and imposed two 24-month terms of imprisonment to run consecutively with no supervised release to follow. Rosario did not object. He now argues that the revocation sentences were “substantively unreasonable.” 3 We disagree.

“Revocation sentences are ordinarily reviewed under a highly deferential plainly unreasonable standard.” United States v. Mason, 440 F. App’x 370, 372 (5th Cir. 2011) (citation and footnote omitted). However, because Rosario “did not object . . . that the length of his [revocation] sentence[s] was unreasonable,” our review is for plain error. Id. (citing United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007)); see also United States v. Fuentes, 906 F.3d 322, 325 (5th Cir. 2018) (explaining that where a defendant does “not object to the sentence below, [] we review for plain error”). To show plain error, Rosario must demonstrate (1) “an error or defect” (2) that is “clear or obvious, rather than subject to reasonable dispute,” (3) that affected his “substantial rights, which in the ordinary case means . . . it ‘affected the outcome of the district court proceedings.’” Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)); see also FED. R. CRIM. P 52(b). “Fourth and finally, if the above three prongs are satisfied, [this court] has the discretion to remedy the error—discretion which ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”’ Puckett, 556 U.S. at 135 (alteration in original) (quoting Olano, 507 U.S. at 736) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936))).

Rosario complains only that the district court ordered that the two 24- month term revocation sentences run consecutive to both each other and the 95-month sentence imposed for the new law violations. He urges that “a sentence either concurrent with the 95-month sentence or running the two 24-month revocation sentence[s] concurrently would have been sufficient.” But “the district court h[as] the authority and the discretion to impose consecutive sentences.” United States v. Gonzalez, 250 F.3d 923, 926 (5th Cir. 2001); see also 18 U.S.C.A. §§ 3584(a), (b). And the record reveals that the sentencing judge properly considered Rosario’s statement, the arguments of his counsel and the government, the Sentencing Guideline Manual, and “the sentencing objectives outlined under 18, United States Code, Section 3553(a).” Rosario’s argument that the district court’s decision to run the revocation sentences consecutively was unnecessary for deterrent purposes is, therefore, unpersuasive.

In support of his argument that “no post-sentence objection is required,” Rosario cites our sister circuit’s opinion in United States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009). That opinion is neither binding nor persuasive. The Bartlett court explains that Federal Rule of Criminal Procedure 51(a) “requires a [defendant to] protest immediately after the ruling if . . . [he] did not have an opportunity to argue the point earlier . . . But when an issue is argued before the judicial ruling, [the defendant] need not take exception once the court’s decision has been announced.” Id. at 910 (citing FED. R. CRIM. P. 51(a). Thus, where a defendant’s sentence is the subject of “extensive argument and evidence,” his counsel need not “argue with the judge once the sentence had been pronounced.” Id. But the two 24- month revocation sentences imposed on Rosario were not the subject of “extensive argument” at the sentencing hearing. And although Rosario’s counsel had ample opportunity to object, he failed to do so. 4 See FED. R. CRIM. P. 51(b). As our sister circuit explained, “it is far better to air and resolve the matter in the district court than to bypass available opportunities for correction and save the issue for appeal.” Bartlett, 567 F.3d at 910. Rosario’s argument that “no post-sentence objection” was required is unveiling.

Rosario also contends that the district court failed to adequately explain its decision to impose consecutive revocation sentences and that it relied on retributive factors in that regard. But Rosario raises these arguments for the first time in his reply brief. We have held that “our court generally will not consider an issue raised for the first time in a reply brief.” United States v. Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010) (citation omitted); see also United States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989) (citation omitted) (“This court will not consider a new claim raised for the first time in an appellate reply brief.”). Thus, we decline to address the merits of any claim regarding the district court’s alleged failure to adequately explain its decision to impose consecutive revocation sentences or its supposed reliance on retributive factors in that regard.

Because we find no error, Rosario’s revocation sentences are AFFIRMED.