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United States v. Rosario-Otero

United States Court of Appeals, First Circuit

September 25, 2013

UNITED STATES of America, Appellee,
v.
Julio ROSARIO-OTERO, a/k/a Hotdog, Defendant, Appellant.

Page 15

Raymond L. Sanchez Maceira for appellant.

Olga B. Castellón-Miranda, Assistant United States Attorney with whom Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pé rez-Sosa, Assistant United States Attorney and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.

Before HOWARD, SELYA and THOMPSON, Circuit Judges.

Page 16

AMENDED OPINION

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, remand for the limited purpose of giving the district court an opportunity to consider whether Rosario-Otero's term of supervised release should be recalculated.

I.

This case is before us for the second time. See United States v. Fernández-Hernández, 652 F.3d 56 (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.

A. 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 21 U.S.C. § 846, and possession with intent to distribute both cocaine and crack cocaine, see id. § 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, 652 F.3d at 70. 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." Id. at 71 n. 14.

B. 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 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 ...


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