US v. Leonardo Hector Rosado, No. 10-5319 (4th Cir. 2011)
Annotate this CaseCourt Description: Unpublished opinion after submission on briefs: Affirmed
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5319 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LEONARDO HECTOR ROSADO, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:10-cr-00011-WO-1) Submitted: October 27, 2011 Decided: November 4, 2011 Before SHEDD, AGEE, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, Michael F. Joseph, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Leonardo Hector Rosado was charged with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006). guilty and the imprisonment. Following a jury trial, Rosado was found district court sentenced Rosado timely appealed. him to 121 months We affirm. On appeal, Rosado makes three claims: (1) the district court erred in giving the jury an Allen * charge instead of declaring a mistrial; (2) the district court erred in applying a two-level sentencing enhancement for obstruction of justice; and (3) Rosado s sentence is substantively unreasonable because it is greater than necessary to accomplish the goals of 18 U.S.C. § 3553(a) (2006). This Court reviews a district court s decision to give an Allen charge and its content for abuse of discretion. States v. Hylton, 349 F.3d 781, 788 (4th Cir. 2003). United An Allen charge is generally given to a deadlocked jury to inform jurors that there is no reason to believe another jury would be better able to decide the case, that it is important that a unanimous verdict be reached, and that all jurors should * Rosado does not Allen v. United States, 164 U.S. 492 (1896). 2 the United States opinions of jurors who favor a different result. v. Burgos, 55 F.3d 933, 935-36 (4th Cir. 1995). consider challenge the content of the district court s Allen charge; only the court s decision to issue the charge rather than to declare a mistrial. We decision in accord such great matters deference because the to the judge trial is in judge s the best position to assess . . . whether the jury will be able to reach a just verdict if it continues to deliberate. Renico v. Lett, 130 district S. Ct. 1855, 1863 (2010). Here, the court carefully explained its exercise of that discretion, noting that the jury had not spent many hours deliberating before declaring its impasse, that it was still early in the process, and that further deliberations . . . w[ould] be appropriate. Because we perceive no abuse of discretion in the district court s wellreasoned decision to issue an Allen charge rather than to declare a mistrial, we reject Rosado s argument. Next, Rosado contends that the obstruction of justice sentencing did not enhancement support such was inappropriate because an enhancement. When the evidence reviewing the district court s application of the Sentencing Guidelines, we review findings of fact for clear error and questions of law de novo. United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010). A two-level enhancement under § 3C1.1 is warranted if a defendant willfully obstructed or impeded the prosecution of the offense of conviction with conduct relevant to that offense. 3 U.S.S.G. § 3C1.1. Commission of perjury constitutes such an obstruction. Id. at cmt. obstruction enhancement based n.4(b). upon Application perjurious trial of the testimony requires a finding by the sentencing court that the defendant, while under oath, (1) gave false testimony; (2) concerning a material matter; (3) with the willful intent to deceive (rather than as a result of confusion, mistake, or faulty memory). United States v. Jones, 308 F.3d 425, 428 n.2 (4th Cir. 2002). The sentencing perjurious element court statements of perjury also and or must make that specifically a finding encompasses predicates for a finding of perjury. marks omitted). identify either all of as the to the each factual Id. (internal quotation Our review of the record leads us to conclude that the district court did not err in finding certain portions of Rosado s trial testimony constituted obstruction of justice under these standards. Lastly, substantively sentence contends unreasonable. for standard. Rosado We reasonableness that review under an his a sentence district is court s abuse-of-discretion Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). Upon significant ensuring procedural that the errors, we sentencing consider court the made no substantive reasonableness of the sentence imposed, taking into account the 4 totality of the Gall, circumstances. 552 U.S. at 51. We presume that a sentence within a properly-calculated Guidelines range is reasonable. (4th Cir. 2007). United States v. Allen, 491 F.3d 178, 193 That presumption may be rebutted by a showing that the sentence is unreasonable when measured against the United States v. Montes-Pineda, 445 F.3d § 3553(a) factors. 375, 379 (4th Cir. 2006) (internal quotation marks omitted). After a thorough review of the record, we conclude Rosado has failed to rebut the presumption that his sentence within the Guidelines range indeed, at the bottom end of that range is substantively reasonable. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the Court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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