United States v. Robert Rosado

USCA11 Case: 21-14065 Date Filed: 09/21/2022 Page: 1 of 13

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14065

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT ROSADO,

a.k.a.

Drew,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 2:20-cr-00134-SPC-MRM-4

____________________

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2 Opinion of the Court 21-14065

Before JORDAN, JILL PRYOR, and BRASHER, Circuit Judges.

PER CURIAM:

Robert Rosado appeals his sentence for (1) conspiracy to dis-

tribute and possession with intent to distribute crack cocaine and

fentanyl, and (2) distribution of crack cocaine and fentanyl. There

are two issues on appeal. First, whether the district court erred in

imposing a two-level enhancement for maintaining a premises for

the purpose of manufacturing or distributing a controlled sub-

stance, under section 2D1.1(b)(12) of the Sentencing Guidelines.

Second, whether Rosado’s sentence is substantively unreasonable

because the court failed to consider the sentencing factors under

18 U.S.C. § 3553(a) and relied too heavily on his prior record. Be-

cause we find no reversible error by the district court, we affirm.

I. BACKGROUND

In 2020, Rosado pled guilty—without a written plea agree-

ment—to one count of conspiracy to distribute and possession with

intent to distribute crack cocaine and fentanyl, in violation of

21 U.S.C. §§ 846 and 841(b)(1)(B), and one count of distribution of

crack cocaine and fentanyl, in violation of 18 U.S.C. §§ 841(a)(1)

and (b)(1)(C).

Before sentencing, the United States Probation Office pre-

pared a presentence investigation report (“PSR”) to help the district

court determine Rosado’s sentence. The PSR summarized the rel-

evant offense conduct as follows. In June 2020, the Lee County

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Sheriff’s Office (“LCSO”) received information from a confidential

source that Rosado’s codefendant, Marvin Harris, Jr., 1 was the

leader and supplier of a drug trafficking organization. The LCSO

discovered that the Federal Bureau of Investigations had begun in-

vestigating Harris in February 2020, and a joint investigation en-

sued. Harris had enlisted multiple dealers to distribute controlled

substances he provided, including crack cocaine and fentanyl, from

residences used specifically for drug distribution, known as trap

houses.

The drug dealers primarily sold drugs out of a trap house,

supplied by Harris, located at 566 New York Drive in Fort Myers,

Florida (the “NYD house”). Harris required the drug dealers to pay

him a portion of their profits from selling drugs out of the NYD

house and charged them rent to sell drugs out of the house. A con-

fidential source worked with law enforcement to purchase crack

cocaine and fentanyl out of the NYD house around ten times daily.

The confidential source identified Rosado as one of the individuals

who sold drugs out of the house. Twice, in August and September

2020, the confidential source contacted and purchased crack co-

caine and fentanyl from Rosado at the NYD house.

Pursuant to an outstanding warrant for Rosado’s arrest in an

unrelated state case, law enforcement located and arrested Rosado

at the NYD house, where he possessed four containers of crack

1 The indictment charged Rosado, Harris, and three other individuals in the

conspiracy.

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4 Opinion of the Court 21-14065

cocaine. Lee County charged Rosado with possession of crack co-

caine, and he apparently was released on bond. Ten days later, Ro-

sado was arrested again for the instant offenses and, at the time of

his arrest, possessed three plastic baggies of cocaine.

The PSR explained that Rosado was involved in the charged

conspiracy from at least April 2020 through October 15, 2020, was

accountable for 534.41 grams of fentanyl and 399.18 grams of crack

cocaine, was a dealer for the conspiracy, and helped maintain the

NYD house where a firearm was present.

The PSR grouped Rosado’s counts together and, based on

the quantity of drugs involved, calculated a base offense level of 30.

The PSR applied a two-level enhancement, under sec-

tion 2D1.1(b)(1) of the Sentencing Guidelines, because his co-con-

spirators possessed a dangerous weapon, which was reasonably

foreseeable to Rosado. The PSR also added a two-level enhance-

ment, under section 2D1.1(b)(12) of the Sentencing Guidelines, be-

cause Rosado maintained a premises for the purpose of manufac-

turing or distributing a controlled substance. The PSR then applied

a three-level reduction for acceptance of responsibility, yielding a

total offense level of 31.

The PSR noted that Rosado had several adult convictions,

including convictions for possession of marijuana and cocaine, re-

sulting in a criminal history category of IV. The PSR calculated that

a total offense level of 31 and criminal history category of IV

yielded a recommend range under the guidelines of 151 to

188 months’ imprisonment. The PSR noted that the statutory

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21-14065 Opinion of the Court 5

maximum was 40 years for the conspiracy charge and 20 years for

the distribution charge.

Before sentencing, Rosado filed a sentencing memorandum,

moving for a downward variance and objecting to portions of the

PSR. Rosado objected to the § 2D1.1(b)(12) enhancement for main-

taining a premises used for drug distribution, arguing that he did

not own or rent the NYD house and that he was subordinate to his

other co-conspirators concerning controlling access to and activi-

ties at the house.

Regarding the § 3553(a) factors, Rosado argued that the

court should consider his background as mitigating circumstances,

including that his father passed away from falling off a roof in 2005

and that his paternal grandmother and uncle removed him from

their family home after his father’s death. Rosado emphasized that

his mother remarried when he was 16 years’ old and that his step-

father was verbally and physically abusive, used powder and crack

cocaine daily, and introduced him to smoking crack cocaine when

he was 17 years’ old, which led to his own crack cocaine addiction.

The government also filed a sentencing memorandum. It ar-

gued that the § 2D1.1(b)(12) enhancement was adequately sup-

ported by evidence, which showed that Rosado used the NYD

house to distribute drugs from August 14, 2020, until October 15,

2020. The government explained that a video recording of the Sep-

tember 2020 drug deal between its confidential source and Rosado

showed that Rosado allowed the confidential source to enter the

NYD house, which demonstrated his control over the property,

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6 Opinion of the Court 21-14065

and that he was the only drug dealer in the house. The government

explained that a recording of a phone call Harris made to Rosado

from jail revealed that Rosado indicated he would “maintain the

spot.” Doc. 239 at 2. 2 The recording also showed that Rosado and

Harris discussed rent and utilities, which demonstrated that Ro-

sado held a possessory interest in the drug premises. 3

At his sentencing hearing, Rosado reiterated his objection to

the § 2D1.1(b)(12) enhancement. The government responded that

it had prepared to introduce the video and telephonic evidence ref-

erenced in its sentencing memorandum, but Rosado had indicated

that he did not object to the accuracy of the facts as proffered. So,

the government recited the facts as mentioned in its memorandum

and argued that, although Rosado was not on the lease, he had a

possessory interest in the NYD house because he paid rent and

dealt drugs out of the premises. It explained that Rosado was in

complete and singular control of the house during the September

2020 drug deal facilitated by the confidential source and law en-

forcement. It also referenced the phone call between Harris and

Rosado, during which Rosado indicated he would “maintain the

spot.” Doc. 283 at 9.

2 “Doc.” numbers refer to the district court’s docket entries.

3 The government stated that it was prepared to introduce both pieces of evi-

dence at Rosado’s sentencing hearing if he disputed them. It also filed an ex-

hibit and witness list showing the same.

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21-14065 Opinion of the Court 7

The district court overruled Rosado’s objection and found

that the § 2D1.1(b)(12) enhancement was appropriate. The court

explained that the undisputed facts showed that: (1) the NYD

house served as a drug distribution point for Harris and the co-con-

spirators; (2) the individuals, Rosado included, were paying rent to

use the residence as a drug distribution center; (3) video evidence

showed Rosado exerting control over the premises when the con-

fidential source purchased drugs from him in September 2020;

(4) Rosado was the only individual at the premises when the confi-

dential source purchased the drugs, so he had access to and control

of the property; and (5) the jail call between Harris and Rosado in-

dicated that Rosado would maintain the NYD house.

The district court found that based on a criminal history cat-

egory of IV and a total offense level of 31, Rosado’s guideline range

was 151 to 188 months’ imprisonment.4 Rosado reiterated his re-

quest that the court consider his history and characteristics regard-

ing his upbringing. Rosado apologized to the court and asserted

that much of his criminal history, which was nonviolent, stemmed

from his upbringing.

The district court noted that it had reviewed the PSR and

the parties’ sentencing memoranda and that it had considered the

4 Based on objections not relevant to this appeal, the PSR was amended to

reflect that Rosado was involved in the conspiracy from August 14, 2020, to

October 15, 2020, but the amendment did not impact the total base offense

level.

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8 Opinion of the Court 21-14065

§ 3553(a) factors, including Rosado’s history and characteristics, the

nature and circumstances of the offense, the need for the sentence

imposed to reflect the seriousness of the offense, to promote re-

spect for the law, and to provide just punishment, and to afford

adequate deterrence to criminal conduct. The court also detailed

the nature and circumstances of Rosado’s offense and referenced

his criminal history, that he had not been deterred from commit-

ting criminal offenses, and his upbringing. The court declined to

vary downward.

The district court sentenced Rosado to 151 months’ impris-

onment as to each count, to run concurrently. The court also im-

posed a five-year term of supervised release on the conspiracy

charge and a three-year term of supervised release on the distribu-

tion charge, also to run concurrently. The court noted that Ro-

sado’s 151-month sentence would run consecutively to his term of

imprisonment imposed by state authorities. Rosado objected to the

application of the guidelines and the substantive reasonableness of

the sentence.

This is Rosado’s appeal.

II. LEGAL STANDARDS

We review a district court’s application of the Sentencing

Guidelines de novo and its factual findings for clear error. See

United States v. Asante, 782 F.3d 639, 642 (11th Cir. 2015). For a

finding to be clearly erroneous, we must be left with a firm

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21-14065 Opinion of the Court 9

conviction that a mistake has been committed. See United States v.

Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010).

The government bears the burden of establishing the facts

necessary to support a sentencing enhancement by a preponder-

ance of the evidence. See United States v. Dimitrovski, 782 F.3d

622, 628 (11th Cir. 2015). In relevant part, district courts may base

their findings of fact on undisputed statements in the PSR and evi-

dence presented at the sentencing hearing. United States v. Mat-

thews, 3 F.4th 1286, 1289 (11th Cir. 2021). The court may also

make reasonable inferences from the evidence. Id.

III. DISCUSSION

We first address whether the district court erred in applying

the § 2D1.1(b)(12) enhancement for maintaining a premises for the

purpose of manufacturing or distributing a controlled substance.

Second, we examine whether Rosado’s sentence is substantively

unreasonable.

A. Section 2D1.1(b)(12) Enhancement

Rosado argues that the district court erred in concluding that

he qualified for the § 2D1.1(b)(12) enhancement because he did not

own or rent the premises, nor was he in charge of the premises.

Rather, he contends, Harris maintained the premises and he was

subordinate to Harris and the other co-conspirators in controlling

the NYD house. We are unpersuaded.

As relevant here, § 2D1.1(b)(12) provides for a two-level en-

hancement if a defendant maintained a premises to manufacture or

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10 Opinion of the Court 21-14065

distribute drugs. See U.S. Sent’g Guidelines Manual § 2D1.1(b)(12)

(U.S. Sent’g Comm’n 2018). The court must consider “whether the

defendant held a possessory interest in (e.g., owned or rented) the

premises” and “the extent to which the defendant controlled access

to, or activities at, the premises.” See id. cmt. n.17. Manufacturing

or distributing a controlled substance need not be the sole purpose

for which the residence was maintained, but must be a primary or

principal, rather than an incidental or collateral, use. Id. Courts

consider how frequently the premises were used for manufacturing

or distributing drugs and for lawful purposes. Id.

The district court did not clearly err when it found that Ro-

sado possessed control over the NYD house sufficient to support

the § 2D1.1(b)(12) enhancement. See Asante, 782 F.3d at 642. Ro-

sado does not dispute that the NYD house was used to manufac-

ture or distribute drugs. See United States v. Rodriguez, 751 F.3d

1244, 1257 (11th Cir. 2014) (explaining that a defendant’s failure to

object to a factual statement in the PSR constitutes an admission of

those facts). And, at sentencing, the government proffered evi-

dence (which Rosado did not dispute) showing that Rosado exerted

control of and access to the premises and was the only individual

at the NYD house when the confidential source purchased drugs

from him in September 2020. It also proffered evidence showing

that Rosado and Harris discussed rent and Rosado indicated that he

would maintain the premises. Thus, the government met its bur-

den to establish the facts necessary to support the § 2D1.1(b)(12)

enhancement by a preponderance of the evidence. See

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Dimitrovski, 782 F.3d at 628. We affirm the district court’s deter-

mination that the enhancement applied.

B. Substantive Reasonableness

Rosado next argues that his 151-month sentence was sub-

stantively unreasonable because the district court failed to consider

the § 3553(a) factors and relied too heavily on his prior record.

Again, we disagree.

We review the reasonableness of a sentence for abuse of dis-

cretion. Gall v. United States, 552 U.S. 38, 41 (2007). “Substantive

reasonableness involves examining the totality of the circum-

stances and whether the sentence is supported by the sentencing

factors outlined in § 3553(a).” 5 United States v. Wayerski, 624 F.3d

1342, 1353 (11th Cir. 2010). “The party challenging a sentence has

the burden of showing that the sentence is unreasonable in light of

the entire record, the § 3553(a) factors, and the substantial

5 Under § 3553(a), the district court must impose a sentence “sufficient, but

not greater than necessary, to comply with the purposes” of the statute.

18 U.S.C. § 3553(a). These purposes include the need to: reflect the seriousness

of the offense; promote respect for the law; provide just punishment; deter

criminal conduct; protect the public from the defendant’s future criminal con-

duct; and effectively provide the defendant with educational or vocational

training, medical care, or other correctional treatment. Id. § 3553(a)(2). The

court must also consider the nature and circumstances of the offense, the his-

tory and characteristics of the defendant, the kinds of sentences available, the

applicable guidelines range, the pertinent policy statements of the Sentencing

Commission, the need to avoid unwarranted sentencing disparities, and the

need to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).

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12 Opinion of the Court 21-14065

deference afforded sentencing courts.” United States v.

Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015).

A district court abuses its discretion and imposes a substan-

tively unreasonable sentence only if it: (1) fails to consider relevant

factors that were due significant weight; (2) gives significant weight

to an improper or irrelevant factor; or (3) commits a clear error of

judgment in considering the proper factors. Id. A district court

commits a “clear error of judgment” when it “considers the proper

factors but balances them unreasonably.” United States v. Irey,

612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).

We “commit[] to the sound discretion of the district court

the weight to be accorded to each § 3553(a) factor.” United States

v. Perkins, 787 F.3d 1329, 1342 (11th Cir. 2015). We will vacate a

district court’s sentence as substantively unreasonable “only if we

are left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) fac-

tors” as evidenced by a sentence “that is outside the range of rea-

sonable sentences dictated by the facts of the case.” United States

v. Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020) (internal quota-

tion marks omitted). We do not apply a presumption of reasona-

bleness to sentences within the guideline range, but we ordinarily

expect such a sentence to be reasonable. United States v. Stanley,

739 F.3d 633, 656 (11th Cir. 2014). Likewise, “[a] sentence imposed

well below the statutory maximum penalty is an indicator of a rea-

sonable sentence.” Id.

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21-14065 Opinion of the Court 13

Rosado failed to meet his burden of showing that his sen-

tence is substantively unreasonable. See Rosales-Bruno, 789 F.3d

at 1256. We begin by observing that Rosado’s sentence was within

the guidelines range and below the statutory maximum. See Stan-

ley, 739 F.3d at 656. Although we do not presume that a sentence

within the guidelines range is reasonable, we ordinarily expect it to

be so. See id. The district court properly weighed the § 3553(a) fac-

tors, as it noted that it considered Rosado’s upbringing when it de-

termined his sentence, in addition to considering his criminal his-

tory, his lack of deterrence from committing criminal offenses, and

the nature and circumstances of his offense. The weight the district

court gave to each of the § 3553(a) factors was committed to its

sound discretion. See Perkins, 787 F.3d at 1342. The district court

therefore did not impose a substantively unreasonable sentence.

IV. CONCLUSION

For the foregoing reasons, we affirm Rosado’s sentence.

AFFIRMED.