Petition for Writ of Certiorari — Edwar Rodriguez, Petitioner v. United States

NO. 22-_____

In the

Supreme Court of the United States

EDWAR RODRIGUEZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID J. JOFFE

COUNSEL OF RECORD

JOFFE LAW, P.A.

THE 110 TOWER BUILDING

110 S.E. 6TH STREET

17TH FLOOR, SUITE 1700

FT. LAUDERDALE, FL 33301

(954) 723-0007

DAVIDJJOFFE@AOL.COM

OCTOBER 31, 2022

SUPREME COURT PRESS

COUNSEL FOR PETITIONER

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

1. Whether certiorari review should be granted

where the Eleventh Circuit erred in affirming the

district court’s denial of Rodriguez’ objection to the

drug quantity he was held accountable for.

2. Whether certiorari review should be granted

where the Eleventh Circuit erred in affirming the

district court’s denial of Rodriguez’ objection to the

dangerous weapon enhancement.

3. Whether certiorari review should be granted

where the Eleventh Circuit erred in affirming the

district court’s denial of Rodriguez’ request for a

departure due to his criminal history being overstated

was unsupported by the facts.

4. Whether certiorari review should be granted

where the Eleventh Circuit erred in affirming

Rodriguez’ sentence where Rodriguez’ sentence was

unreasonable in light of the statutory sentencing

factors listed in 18 U.S.C. § 3553(a)-(f) and principles

applied by the advisory federal sentencing guidelines.

ii

LIST OF PROCEEDINGS

United States Court of Appeals for the Eleventh Circuit

No. 20-14681

United States of America, Plaintiff-Appellee, v.

Edwar Rodriguez, a.k.a. Domi, a.k.a. Brooklyn,

Defendant-Appellant

Date of Final Opinion: May 12, 2022

Date of Rehearing Denial: August 4, 2022

_________________

United States District Court Middle District of Florida

Case Number: 8:20-cr-30-T-36TGW

United States of America, v.

Edwar Rodriguez, a.k.a. Domi, a.k.a. Brooklyn

Date of Final Judgment: December 3, 2020

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

LIST OF PROCEEDINGS .......................................... ii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 2

STATEMENT OF THE CASE .................................... 3

A. Course of Proceedings ...................................... 3

B. Statement of the Facts ..................................... 4

1. The Offense Conduct .................................. 4

2. Facts Pertaining to Rodriguez’ Sentence .... 8

3. Rodriguez’ Sentencing Hearing ................ 10

REASONS FOR GRANTING THE PETITION ....... 17

I.

Certiorari Review Should Be Granted

Where the Eleventh Circuit Erred in

Affirming the District Court’s Denial of

Rodriguez’ Objection to the Drug Quantity

He Was Held Accountable for ........................ 17

II. Certiorari Review Should Be Granted

Where the Eleventh Circuit Erred in

Affirming the District Court’s Denial of

Rodriguez’ Objection to the Dangerous

Weapon Enhancement ................................... 19

iv

TABLE OF CONTENTS – Continued

Page

III. Certiorari Review Should Be Granted

Where the Eleventh Circuit Erred in

Affirming the District Court’s Denial of

Rodriguez’ Request for a Departure Due to

His Criminal History Being Overstated ....... 21

IV. Certiorari Review Should Be Granted

Where the Eleventh Circuit Erred in

Affirming Rodriguez’ Sentence That Was

Not Substantively Reasonable Considering

18 U.S.C. § 3553(A)-(F) .................................. 22

CONCLUSION.......................................................... 25

v

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion of the United States Court of Appeals

for the Eleventh Circuit (May 12, 2022) ............ 1a

Judgment in a Criminal Case

(December 3, 2020) ........................................... 27a

Acceptance of Guilty Plea and Adjudication of

Guilt (September 18, 2020) .............................. 35a

Report and Recommendation Concerning Plea of

Guilty (August 31, 2020) .................................. 37a

REHEARING ORDER

Order of the United States Court of Appeals for

the Eleventh Circuit Denying Petition for

Rehearing (August 4, 2022) ............................. 39a

OTHER DOCUMENT

Indictment

(January 22, 2020)............................................ 40a

SEALED DOCUMENT

Presentence Investigation Report,

Relevant Extracts (December 3, 2020) ............ 44a

vi

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Gall v. United States,

552 U.S. 38, 128 S.Ct. 586 (2007) ............... 22, 23

Kimbrough v. United States,

552 U.S. 85, 128 S.Ct. 558 (2007) ..................... 23

Koon v. United States,

518 U.S. 81, 116 S.Ct. 2035 (1996) ................... 23

United States v. Bonilla,

579 F.3d 1233 (11th Cir. 2009) ......................... 23

United States v. Fayette,

895 F.2d 1375 (11th Cir. 1990) ......................... 21

United States v. Gallo,

195 F.3d 1278 (1999) ......................................... 20

United States v. Gibson,

434 F.3d 1234 (11th Cir. 2006) ........................... 21

United States v. Ismond,

993 F.2d 1498 (11th Cir. 1993) ................... 17, 18

United States v. Johnson,

485 F.3d 1264 (11th Cir. 2007) ........................... 22

United States v. Kirkland,

985 F.2d 535 (11th Cir. 1993) ........................... 19

United States v. Livesay,

525 F.3d 1081 (11th Cir. 2008) ......................... 23

United States v. Olano,

507 U.S. 725, 113 S.Ct. 1770 (1993) ................. 25

United States v. Phaknikone,

605 F.3d 1099 (11th Cir. 2010) ......................... 23

vii

TABLE OF AUTHORITIES – Continued

Page

United States v. Pugh,

515 F.3d at 1191 (11th Cir. 2008) ............... 15, 24

United States v. Rodriguez,

398 F.3d 1291 (11th Cir. 2005) ................... 17, 25

United States v. Saac,

632 F.3d 1203 (11th Cir. 2011) ............................ 24

United States v. Sarras,

575 F.3d 1191 (11th Cir. 2009) ......................... 22

United States v. Singh,

291 F.3d 756 (11th Cir. 2002) ............................. 19

United States v. Thomas,

446 F.3d 1348 (11th Cir. 2006) ......................... 24

United States v. Whitehead,

532 F.3d 991 (9th Cir. 20008) ......................... 6, 9

United States v. Williams,

456 F.3d 1353 (11th Cir. 2006) ......................... 22

United States v. Yates,

990 F.2d 1179 (11th Cir. 1993) ............................ 19

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V .................................................. 2

U.S. Const. amend. XIV § 1 ........................................ 2

STATUTES

18 U.S.C. § 3551 .................................................... 8, 14

18 U.S.C. § 3553 ........................................ 8, 13, 14, 15

18 U.S.C. § 3553(a)-(f)....................................... passim

viii

TABLE OF AUTHORITIES – Continued

Page

21 U.S.C. § 841(b)(1)(A)(viii) ...................................... 3

21 U.S.C. § 841(b)(1)(C) .............................................. 3

21 U.S.C. § 846 ............................................................ 3

28 U.S.C. § 1254 .......................................................... 2

JUDICIAL RULES

Sup. Ct. R. 10.1 ........................................................... 1

Sup. Ct. R. 13.1 ........................................................... 2

SENTENCING GUIDELINES

U.S.S.G. § 1B1.3(a)(1)(B) ........................................... 17

U.S.S.G. § 2D1.1 ...................................................... 5, 8

U.S.S.G. § 2D1.1(a)(5) ............................................. 5, 8

U.S.S.G. § 2D1.1(b)(1) ....................................... 6, 8, 19

U.S.S.G. § 2D1.1(b)(5) .............................................. 6, 8

U.S.S.G. § 2D1.1(c)(1) .............................................. 6, 8

U.S.S.G. § 3E1.1(a) ................................................. 6, 9

U.S.S.G. § 3E1.1(b) ................................................. 6, 9

U.S.S.G. § 4A1.3(b)(1) ............................................... 21

1

PETITION FOR A WRIT OF CERTIORARI

The Petitioner, EDWAR RODRIGUEZ, (hereinafter

“Rodriguez”), by and through his undersigned counsel,

respectfully prays that a Writ of Certiorari issue to

review the opinion of the United States Court of

Appeals for the Eleventh Circuit entered in the

proceedings on May 12, 2022.

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Eleventh Circuit dated May 12, 2022 is included

at App.1a. This opinion was designated “PUBLISH”

by the Eleventh Circuit. The Judgment of the United

States District Court Middle District of Florida on

December 3, 2020 is included at App.27a. The decision

of Magistrate Judge on August 31, 2020 is included

at App.37a.

JURISDICTION

The judgment of the Eleventh Circuit Court of

Appeals affirming the Judgment of the United States

District Court was entered on May 12, 2022. (App.1a).

The Eleventh Circuit Court of Appeals entered its

Order Denying Rodriguez’ Petition for Rehearing and

Petition for Rehearing En Banc on August 4, 2022.

(App.39a). The jurisdiction of this Court is invoked

2

pursuant to the provisions of 28 U.S.C. § 1254 and

Rule 10.1, Rules of the Supreme Court. This Petition

for Writ of Certiorari is filed pursuant to Rule 13.1,

Rules of the Supreme Court.

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const., amend. V

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of

War or public danger; nor shall any person be

subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without due process of law; nor shall private property

be taken for public use, without just compensation.

U.S. Const., amend. XIV § 1

All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction

the equal protection of the laws.

3

STATEMENT OF THE CASE

A.

Course of Proceedings

On January 22, 2020, a federal grand jury

issued a one (1) count indictment against EDWAR

RODRIGUEZ (“Rodriguez”), CHRISTIAN SANTIAGO

RONDON, VICTOR SANTIAGO RONDON, OLGA

PATRICIA JACKSON, JORGE RAMIREZ and CARLO

BIRIS MARTINEZ, charging them all with conspiracy

to distribute and possess with intent to distribute

controlled substances, including cocaine and heroin

in violation of 21 U.S.C. § 841(b)(1)(A)(viii), 21 U.S.C.

§ 846 and 21 U.S.C. § 841(b)(1)(C) (Count One); and

a forfeiture count. (DE:1)1.

On August 31, 2020, Rodriguez pled guilty to

Count I, conspiracy to distribute and possess with

intent to distribute controlled substances, including

cocaine and heroin in violation of 21 U.S.C. § 841(b)

(1)(A)(viii), 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(C).

(DE:138, DE:151).

On December 3, 2020, the District Court sentenced

Rodriguez to 135 months of incarceration followed by

three (3) years of supervised release with an assessment

of $100.00. The District Court granted Rodriguez’

request to recommend he be enrolled in UNICOR or

HVAC. (DE:199; DE:226:75-81). Rodriguez filed a

timely Notice of Appeal and is confined. (DE:204).

On May 12, 2022, the Eleventh Circuit affirmed

Rodriguez’ sentence. On August 4, 2022, the Eleventh

1 “DE” refers to the docket entry number from the district court.

Middle District of Florida, No. 8:20-cr-00030-CEH-TGW-1.

4

Circuit denied Rodriguez’ Petition for Rehearing and

Rehearing En Banc.

B.

Statement of the Facts

1. The Offense Conduct

Beginning on an unknown date, but not later

than on or about January 1, 2018, and continuing

through on or about April 23, 2019, a Florida drug

trafficking organization (DTO) distributed hundreds

of kilograms of methamphetamine, as well as a

smaller amount of cocaine, within the Middle District

of Florida. A Mexican drug cartel supplied the DTO,

which was led by Juan Carlos Arias Castillo (Castillo)

and Adan Barajas Maldonado (Maldonado) (PSI at 7).

On January 9, 2018, law enforcement officers in

Baldwin County, Alabama, conducted a traffic stop

on a vehicle travelling from Texas, which was later

determined to contain approximately 12 kilograms of

methamphetamine and a firearm. Post-Miranda, the

occupants of the vehicle gave statements to law

enforcement in Dallas, Texas, that they purchased

multiple kilograms of methamphetamine and then

deliver it to Castillo at 11100 Monarch Drive in Spring

Hill, Florida. At least one of the vehicle’s occupants

indicated they had been paid by Castillo on at least

four occasions to deliver methamphetamine imported

from a Mexican cartel based in Michoacan, Mexico,

through Dallas, Texas, to Castillo in Florida. (PSI at 8)

One of the vehicle’s occupants continued to

cooperate with law enforcement and explained that

Castillo was distributing kilogram quantities of methamphetamine several times monthly, between January

2018 and October 2018, and that Castillo stored,

unpacked, cleaned in acetone, and repackaged multi-

5

kilogram quantities of methamphetamine into smaller

pound-size parcels for distribution from 11100 Monarch

Drive. The cooperating individual reported to law

enforcement that Castillo possessed numerous firearms

within the Spring Hill residence to protect his cash

and drug supply. The cooperating individual reported

that couriers working for Castillo picked up methamphetamine and delivery instructions from Castillo

at 11100 Monarch Drive, delivered the methamphetamine throughout Florida, returned drug sale proceeds

to Castillo, and used commercial wire services to send

proceeds to individuals in Michoacan. The utilities at

11100 Monarch Drive were in the names of Victor

Santiago Rondon (V. Rondon) and Christian Santiago

Rondon (C. Rondon). (PSI at 9)2

Law enforcement conducting surveillance at the

Elgin Boulevard stash house noted that numerous

individuals visited the residence, but the property

was limited in who was allowed inside near the drug

supply. Generally, couriers and lower-level dealers

were met in the front yard of the residence; however,

Castillo, Maldonado, Rodriguez, V. Rondon, and C.

Rondon had access to the stash houses. Law enforcement established that couriers regularly were involved

in the transfer-in and transfer-out of bags containing

suspected drugs from the residence. (PSI at 14)

The probation officer who prepared Rodriguez’ PSI

at set his base offense level at 38, pursuant to U.S.S.G.

§ 2D1.1, U.S.S.G. § 2D1.1(a)(5) and U.S.S.G. § 2D1.1

2 Concurrently with the filing of this petition, Rodriguez has

moved to file a supplemental appendix under seal which contains

his Pre-Sentencing Investigation Report (PSI). The facts discussed

herein with reference to the PSI are not confidential.

6

(c)(1). (PSI at 34) The probation office gave Rodriguez

a two-level enhancement pursuant to U.S.S.G. § 2D1.1

(b)(1) for a dangerous weapon being possessed and a

two-level enhancement pursuant to U.S.S.G. § 2D1.1

(b)(5) for importation of amphetamine or methamphetamine or the manufacture of amphetamine or

methamphetamine. (PSI at 35-36). The probation office

gave Rodriguez a three-level decrease for acceptance

or responsibility, pursuant to U.S.S.G. § 3E1.1(a) and

U.S.S.G. § 3E1.1(b). (PSI at 42-43) Accordingly, the

probation officer set Rodriguez’ total offense level at

39. (PSI at 44)

The probation office found that Rodriguez had a

total offense level of 39 and a criminal history category

of III. As such, the guideline imprisonment range

was 324 to 405 months. (PSI at 98)

Rodriguez filed his Sentencing Memorandum

and Motion for Variance on November 30, 2020.

Rodriguez objected to the presentence report regarding

the enhancements to his total offense level and sought

a mitigating role reduction, a downward departure of

his criminal history because his criminal history

category “substantially overrepresents the seriousness

of the defendant’s criminal history or the likelihood

that the defendant will commit other crimes” and a

downward variance due to his personal history and

because he accepted responsibility immediately and

in fact provided substantial assistance to the government. United States v. Whitehead, 532 F.3d 991 (9th

Cir. 2008). (DE:192).

Rodriguez’ sentencing hearing was held on

December 3, 2020. (DE:226).

7

Rodriguez testified he had no knowledge of who

was the head of the conspiracy and never met anyone

who was the head of the conspiracy and that he had

no knowledge of how much drugs he was picking up

or how much Mr. Castillo or Mr. Maldonado paid for

the drugs and that he had no involvement in setting

the rates for the drugs or had any involvement with

organizing the delivery of the drugs, what drugs they

were selling and that he had no knowledge of how

they packaged the methamphetamine and other than

being paid for the tasks asked of him, that he did not

have any financial interest in the success of the drug

deals. (DE:226:26-29).

Rodriguez further testified that he distanced

himself from the conspiracy and that he was asked to

wire monies to Mr. Castillo’s wife and mother and

another family member. (DE:226:33).

The District Court sustained Rodriguez’ objection

to Paragraph 38, the adjustment in Rodriguez’ role in

the offense and Paragraph 46, the juvenile adjudications. (DE:226:62-63). Rodriguez’ counsel then argued

that because of the role objection being granted, that

the enhancement for the importation would not apply

and probation agreed. Therefore, Rodriguez’ total

offense was to be reduced to 31 and his criminal

history remained a category III, bringing his guideline

sentence to be 135 to 168 months. (DE:226:63-64).

Accordingly, the District Court found that “[t]he

Total Offense Level is Level 31. The Criminal History

Category is Category III. The advisory guidelines range

for incarceration is 135 to 168 months’ imprisonment

with 2 to 5 years supervised release.” The District

Court also found that Rodriguez was eligible for safety

8

valve and therefore the minimum term of imprisonment no longer applied. (DE:226:66-67).

The District Court sentenced Rodriguez to “the

low end of the guidelines of 135 months . . . So I am

denying . . . [his] request for a downward variance, but

pursuant to Title 18, United States Code Sections

3551 and 3553, it is the judgment of the Court that

the Defendant Edwar Rodriguez is hereby committed

to the custody of the Bureau of Prisons to be imprisoned for a term of 135 months. Upon release from

imprisonment, Mr. Rodriguez, you shall serve a threeyear term of supervised release . . . Based upon your

financial status, the Court waives the imposition of a

fine, but you are ordered to pay to the United States

a special assessment. That is in the amount of $100

and it is due immediately.” (DE:226:76-77) Rodriguez

requested to be housed in the Coleman facility, to

self-surrender and be placed in the UNICOR job and

learning heating, ventilation and air-conditioning,

HVAC. (DE:226:78-79). Rodriguez’ request to selfsurrender was denied and his other requests were

granted. (DE:226:78-81).

2. Facts Pertaining to Rodriguez’ Sentence

The probation officer who prepared Rodriguez’

PSI set his base offense level at 38, pursuant to

U.S.S.G. § 2D1.1, U.S.S.G. § 2D1.1(a)(5) and U.S.S.G.

§ 2D1.1(c)(1). (PSI at 34) The probation office gave

Rodriguez a two-level enhancement pursuant to

U.S.S.G. § 2D1.1(b)(1) for a dangerous weapon being

possessed and a two-level enhancement pursuant to

U.S.S.G. § 2D1.1(b)(5) for importation of amphetamine

or methamphetamine or the manufacture of amphetamine or methamphetamine. (PSI at 35-36). The pro-

9

bation officer gave Rodriguez a three-level decrease for

acceptance or responsibility, pursuant to U.S.S.G.

§ 3E1.1(a) and U.S.S.G. § 3E1.1(b). (PSI at 42-43)

Accordingly, the probation officer set Rodriguez’ total

offense level at 39. (PSI at 44)

The probation office found that Rodriguez had a

total offense level of 39 and a criminal history category

of III. As such, the guideline imprisonment range was

324 to 405 months. (PSI at 98)

Rodriguez filed his Sentencing Memorandum and

Motion for Variance on November 30, 2020. Rodriguez

objected to the presentence report regarding the

enhancements to his total offense level and sought a

mitigating role reduction, a downward departure of

his criminal history because his criminal history

category “substantially overrepresents the seriousness

of the defendant’s criminal history or the likelihood

that the defendant will commit other crimes” and a

downward variance due to his personal history and

because he accepted responsibility immediately and in

fact provided substantial assistance to the government.

United States v. Whitehead, 532 F.3d 991 (9th Cir.

20008). (DE:192).

Rodriguez’ sentencing hearing was held on December 3, 2020 (DE:226). At the sentencing hearing, defense

counsel argued Rodriguez’ objections to the PSI, his

request for a minor role reduction a downward departure and his request for a variance and his other

objections. (DE:226:7-73) As such, the District Court

sentenced Rodriguez to 135 months of incarceration

followed by three (3) years of supervised release and the

payment of a $100.00 assessment. (DE:199; 226:75-81).

As a result of the sentence that was imposed, Rodriguez

10

timely filed his notice of appeal and is incarcerated.

(DE:204)

3. Rodriguez’ Sentencing Hearing

Rodriguez’ sentencing hearing was held on

December 3, 2020. (DE:226).

Rodriguez’ counsel further argued Rodriguez’

objections to the presentence investigation report.

(DE:226:6-67).

Rodriguez’ counsel argued Rodriguez’ objection

to the quantity of drugs he is being held accountable

for arguing that “he should be accountable for the

drugs he personally was involved in, not the entire

conspiracy, and what the presentence report does is

lump him with the other drivers for the entire

quantity that was brought from Texas to the Middle

District of Florida. (DE:226:8-9). Counsel continued

to argue that “Mr. Maldonado in his debriefing

identified Mr. Rodriguez in the transportation of 11

kilos from Texas to a ledger that he—apparently he

kept a ledger, . . . trafficking portion of bringing it to—

from Texas to the Middle District is the 11 kilos . . . The

presentence report lumps it, all 200 kilos roughly that

Christian Rondon and Victor Rondon and as the presentence report notes is seven drivers at least used

in the conspiracy were brought they’re holding Mr.

Rodriguez for . . . ” (DE:226:9-10). That is—which is

where we came up with our desire to—that the appropriate range is 15 to 45 kilos of methamphetamine . . . ”

(DE:226:11).

Rodriguez’ counsel then argued Rodriguez’ objection to the enhancement regarding the firearm and

argued that “Mr. Rodriguez disputes selling the fire-

11

arm to Mr. Castillo. He says it’s simply not accurate

. . . ” As such, Rodriguez testified that he did not sell

the firearm to Mr. Castillo, and he never saw Mr.

Castillo with a firearm. (DE:226:13-14). Furthermore,

counsel argued that “[i]n the debriefings, I don’t see

any information about when the guns were involved

in the conspiracy other than the date of the search

warrant” and that the day the guns were found

Rodriguez was working his regular job. (DE:226:19).

The District Court acknowledged Rodriguez’ objections

to Paragraphs 21 and 36 of the presentence report

and Rodriguez’ counsel then argued Rodriguez’ objection to Paragraph 37 regarding importation. (DE:226

:21). Counsel argued that Rodriguez was objecting to

the two-level enhancement for importation as it is

“unconstitutional” to “enhance only methamphetamine

two levels if it comes from out of the country and no

other drug.” (DE:226:21-22).

Rodriguez’ counsel then argued Rodriguez’ objection to Paragraph 39, the role offense. (DE:226:22).

Counsel argued “Mr. Rodriguez was a driver. He did

a transportation of a load from Texas to Middle

District of Florida. . . . He himself made deliveries and

he wired approximately $65,000 to various places

directed by Mr. Castillo. He was under the impression

some of those were for family . . . He had no interest

in the drugs. He had no proprietary interest in the

drugs.” (DE:226:22). Counsel argued the elements to

obtain a role reduction, arguing that “[h]e had no

decision-making authority. He was merely ‘do the task’.

He went where Castillo told him to go and drove

there and he wired whatever money he told him

to wire to whoever he told him to wire it to. His

participation again was merely as a driver . . . so he’s

12

not—doesn’t have a huge ability to benefit from the

criminal activity, so under the five criteria and given

the example the guidelines put forth, we think he’s

entitled to a two level role reduction” (DE:226:24-25).

Rodriguez testified he had no knowledge of who

was the head of the conspiracy and never met anyone

who was the head of the conspiracy and that he had

no knowledge of how much drugs he was picking up

or how much Mr. Castillo or Mr. Maldonado paid for

the drugs and that he had no involvement in setting

the rates for the drugs or had any involvement with

organizing the delivery of the drugs, what drugs they

were sell and that he had no knowledge of how they

packaged the methamphetamine and other than being

paid for the tasks asked of him, that he did not have

any financial interest in the success of the drug deals.

(DE:226:26-29).

Rodriguez further testified that he distanced

himself from the conspiracy and that he was asked to

wire monies to Mr. Castillo’s wife and mother and

another family member. (DE:226:33).

Rodriguez’ counsel objected to Paragraph 46 –

the juvenile adjudications and argued it was a civil

infraction. (DE:226:35-36). After the AUSA explained

the terminology and how New York views said offense,

the District Court held that “that one needs to be

removed . . . ” (DE:226:56). The District Court overruled

Rodriguez’ objections to Paragraphs 21, 22 and 35

and therefore overruled his objection to the “offense

conduct and base offense level, as to the objection to

being held accountable for more than 200 kilograms

of methamphetamine, the Court is going to overrule

the Defendant’s objection with regard to that.” The

District Court also overruled Rodriguez’ objection to

13

Paragraphs 21 and 36 regarding the firearm and

Paragraph 37 regarding importation of methamphetamine importation. (DE:226:60-62)

The District Court sustained Rodriguez’ objection

to Paragraph 38, the adjustment in Rodriguez’ role in

the offense and Paragraph 46, the juvenile adjudications. (DE:226:62-63). Rodriguez’ counsel then argued

that because of the role objection being granted, that

the enhancement for the importation would not apply

and probation agreed. Therefore, Rodriguez’ total

offense was to be reduced to 31 and his criminal

history remained a category III, bringing his guideline

sentence to 135 to 168 months. (DE:63-64). Accordingly, the District Court found that “[t]he Total Offense

Level is Level 31. The Criminal History Category is

Category III. The advisory guidelines range for incarceration is 135 to 168 months’ imprisonment with 2

to 5 years supervised release.” The District Court also

found that Rodriguez was eligible for safety valve

and therefore the minimum term of imprisonment no

longer applied. (DE:226:66-67).

Rodriguez’ counsel then argued that Rodriguez

was entitled to a variance due to the fact that his

criminal history was “overrepresented” and that under

the factors of 3553 he is entitled to a variance because

he was always working a legitimate job, has strong

support from his family and that because the way the

conspiracy was structured he cannot fully cooperate

with the government, but did provide what information

he could. Therefore, counsel asked the District Court

“to consider a variance from the otherwise applicable

range just recognizing his criminal history and

employment.” Counsel argued that “[a] reduction of

one level in a criminal history over would be 121 to

14

151, and 108 to 105 would be one more level for the

lack—the potential that he won’t come back and reoffend, so we ask the Court for 108 months.” (DE:226:

72-73). The government requested 135 months-the low

end of the guidelines. (DE:226:73-75).

The District Court sentenced Rodriguez to “the

low end of the guidelines of 135 months . . . So I am

denying Mr. Fitzgerald’s request for a downward

variance, but pursuant to Title 18, United States Code

Sections 3551 and 3553, it is the judgment of the

Court that the Defendant Edwar Rodriguez is hereby

committed to the custody of the Bureau of Prisons to

be imprisoned for a term of 135 months. Upon release

from imprisonment, Mr. Rodriguez, you shall serve a

three-year term of supervised release . . . Based upon

your financial status, the Court waives the imposition

of a fine, but you are ordered to pay to the United

States a special assessment. That is in the amount

of $100 and it is due immediately.” (DE:226:76-77)

Rodriguez requested to be housed in the Coleman

facility, to self-surrender and be placed in the UNICOR

job and learning heating, ventilation and air-conditioning, HVAC. (DE:226:78-79). Rodriguez’ request to

self-surrender was denied and his other requests were

granted. (DE:226:78-81).

a. The Eleventh Circuit Erred in

Affirming the District Court’s Denial

of Rodriguez’ Objection to the Drug

Quantity He Was Held Accountable

For.

The affirming of the District Court’s denial of

Rodriguez’ objection to the amount of drugs he was

15

accountable for was in error based upon the facts of

the case and his actual involvement in the conspiracy.

b. The Eleventh Circuit Erred in

Affirming the District Court’s Denial

of Rodriguez’ Objection to the

Dangerous Weapon Enhancement.

The affirming of the District Court’s denial of

Rodriguez’ objection to the two-level enhancement for

the dangerous weapon was in error where he testified

that he did not sell the weapon to anyone and the

government had no evidence to rebut his testimony.

c. The Eleventh Circuit Erred in

Affirming the District Court’s Denial

of Rodriguez’ Request for a

Departure Due to His Criminal

History Being Overstated.

Based on Rodriguez’ arguments and caselaw, his

criminal history clearly was overstated and therefore

the denial of his request for a departure should not

have been affirmed by the Eleventh Circuit.

d. Rodriguez’ Sentence Should not

Have been Affirmed by the Eleventh

Circuit where Rodriguez’ Sentence

was Not Substantively Reasonable

Considering 18 U.S.C. § 3553(A)-(F).

A sentence will be found to be “substantively

reasonable” if when considering the totality of the

circumstances, the purposes of 18 U.S.C. § 3553(a)

are met by the District Court. United States v. Pugh,

515 F.3d at 1191.

16

Rodriguez’ sentence was unreasonable in light of

the sentencing factors listed in 18 U.S.C. § 3553(a)-(f)

and the totality of the circumstances; more particularly, the fact that Rodriguez took immediate acceptance

of responsibility, and his criminal history was grossly

overstated. Moreover, the sentence was not minimally

sufficient or “appropriate” as the District Court alluded

to, but greater than necessary to comply with the

purposes of sentencing under 18 U.S.C. § 3553(a). In

reviewing the totality of the circumstance, Rodriguez’

sentence was far too severe.

17

REASONS FOR GRANTING THE PETITION

I.

CERTIORARI REVIEW SHOULD BE GRANTED

WHERE THE ELEVENTH CIRCUIT ERRED IN

AFFIRMING THE DISTRICT COURT’S DENIAL OF

RODRIGUEZ’ OBJECTION TO THE DRUG QUANTITY

HE WAS HELD ACCOUNTABLE FOR.

The government has the burden to establish

drug quantity by a preponderance of the evidence.

United States v. Rodriguez, 398 F.3d 1291, 1296

(11th Cir. 2005).

A member of a drug conspiracy is liable not only

for his own acts, but also for the acts of others “in

furtherance of the activity that the defendant agreed

to undertake and that are reasonably foreseeable in

connection with that activity.” United States v. Ismond,

993 F.2d 1498, 1499 (11th Cir. 1993). This rule

applies to drug quantity determinations. See U.S.S.G.

§ 1B1.3(a)(1)(B) & cmt. n. 2. In such cases, the District

Court must make individualized findings as to a

defendant’s scope of involvement, and then determine

the drug quantities “reasonably foreseeable” to that

defendant given his level of participation. Ismond, 993

F.2d at 1499.

In the case at hand, the District Court found that

Rodriguez was a minor participant and was only

involved for about a year. Also, the evidence clearly

supported a finding that Rodriguez “quit” working for

the conspiracy before the search warrant was executed

which also supports Rodriguez’ argument that he

should only be accountable for the drugs he actually

delivered. (DE:226:62-63, 57). The District Court clearly

18

erred in denying Rodriguez’ objection and finding that

Rodriguez was accountable for 200 kilos of methamphetamine. (PSI at 22). Because the facts did not

support said finding, the Eleventh Circuit should not

have affirmed Rodriguez’ sentence as it is clearly

unreasonable and greater than necessary based upon

the totality of the circumstances.

Furthermore, as previously argued, it is clear

that there was no “accurate” evidence or testimony to

determine the actual amount of drugs that Rodriguez

is in fact accountable for. In fact, the District Court

pointed out that the government’s position as to the

amount of drugs attributable to Rodriguez was pure

“speculation”. (DE:226:44). Although the District Court

questioned the amount that the government was

alleging to be attributable to Rodriguez, the District

Court agreed with the government’s position and

overruled Rodriguez’ objection. (DE:59). However, the

amount was based on mere speculation and not facts.

Again, the District Court must make individualized

findings as to a defendant’s scope of involvement,

and then determine the drug quantities “reasonably

foreseeable” to that defendant given his level of participation. Ismond, 993 F.2d at 1499. And, because the

ruling by the District Court was based on “speculation”,

the Eleventh Judicial Circuit should have vacated

Rodriguez’ sentence and remanded it back to the

District Court for a new sentencing hearing. The fact

that the District Court surmised that the conspiracy

was a “jointly undertaken criminal activity as opposed

to a number of separate criminal activities” and agreed

with the government’s assumptions supports Rodriguez’ argument that the Eleventh Judicial Circuit erred

19

in affirming Rodriguez’ sentence and therefore his

Petition for Writ of Certiorari review must be granted.

II. CERTIORARI REVIEW SHOULD BE GRANTED

WHERE THE ELEVENTH CIRCUIT ERRED IN

AFFIRMING THE DISTRICT COURT’S DENIAL OF

RODRIGUEZ’ OBJECTION TO THE DANGEROUS

WEAPON ENHANCEMENT.

A District Court’s determination of facts that

support enhancements under the Sentencing Guidelines

are findings of fact subject to the clearly erroneous

standard. See United States v. Singh, 291 F.3d 756,

763 (11th Cir. 2002). The application of the Sentencing

Guidelines to the facts as found by the District Court

is a question of law that is reviewed de novo. See

United States v. Yates, 990 F.2d 1179, 1182 (11th

Cir. 1993). Whether a particular guideline applies to

a given set of facts is a question of law subject to de

novo review. See United States v. Kirkland, 985 F.2d

535, 537 (11th Cir. 1993). Because the facts of this

case do not support Rodriguez’ sentence, his Petition

for Writ of Certiorari review must be granted.

In both the District Court and at the appellate

level, Rodriguez objected to the increase in Rodriguez’

offense level by two levels pursuant to U.S.S.G.

§ 2D1.1(b)(1) for possession of a dangerous weapon

(PSI at 35). Rodriguez argued that he did not sell the

weapon to anyone and therefore said enhancement is

unsupported by the facts. (DE:226:14).

Applying U.S.S.G. § 2D1.1(b)(1) it is clear that

there is a requirement that Rodriguez had possession

of the firearm, not just that a firearm was used

during the conspiracy. Furthermore, the allegations

against Rodriguez were that Rodriguez “sold a Taurus

20

9mm semiautomatic pistol to one of the conspiracy

leaders, Joan Carlos Arias Castillo, during the conspiracy, which was the same pistol that law enforcement seized . . . ” (PSI. at 35). It is clear from the

evidence and testimony at the sentencing hearing,

that Rodriguez had no knowledge of the pistol, nor

did he ever have possession of it and therefore did

not sell it to anyone. United States v. Gallo requires

that the government prove that the defendant was in

possession of the weapon, was a co-conspirator, that

the co-conspirator’s possession of the weapon was in

furtherance of the conspiracy, that Rodriguez was a

member of the conspiracy, and that possession of the

weapon by the co-conspirator was foreseeable by

Rodriguez. United States v. Gallo, 195 F.3d 1278 (1999).

In reviewing the evidence and testimony, there

was absolutely no evidence or testimony that Rodriguez

knew or could foresee that one of his co-conspirators

had a weapon. What the evidence did show was that

Rodriguez never really had access to the residence

where the weapon was seized and never had possession

of the weapon. Furthermore, the District Court found

he was a minimal participant in the conspiracy and

therefore he was not as “actively involved” in the

conspiracy as his other co-defendants. Just based on

the above, it is unclear how either the District Court

or the Eleventh Circuit could find that Rodriguez

could “foresee” that a weapon would be involved in the

conspiracy. The issue is what did “Rodriguez foresee”

not what is usually the case in a drug conspiracy

action. Therefore, Rodriguez’ objection should have

been granted and the two-level enhancement vacated.

Vacating said two-level enhancement would have made

Rodriguez’ sentence more reasonable and therefore,

21

not greater than necessary. After all, the District

Court failed, as did the Eleventh Circuit, to take into

account that Rodriguez accepted responsibility and was

a minimal participant in the conspiracy. As such,

since Rodriguez sentence was unreasonable and the

Eleventh Circuit affirmed said unreasonable sentence,

this Court must grant Rodriguez’ Petition for Writ of

Certiorari review in order to avoid another miscarriage

of justice.

III. CERTIORARI REVIEW SHOULD BE GRANTED

WHERE THE ELEVENTH CIRCUIT ERRED IN

AFFIRMING THE DISTRICT COURT’S DENIAL OF

RODRIGUEZ’ REQUEST FOR A DEPARTURE DUE TO

HIS CRIMINAL HISTORY BEING OVERSTATED.

The District Court has the discretion to grant a

downward departure based upon the overrepresentation

of a defendant’s criminal history. United States v.

Fayette, 895 F.2d 1375 (11th Cir. 1990). If reliable

information indicates that a defendant’s criminal

history category substantially over-represents the

seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit other crimes,

a downward departure may be warranted. U.S.S.G.

§ 4A1.3(b)(1). United States v. Gibson, 434 F.3d 1234

(11th Cir. 2006). Accordingly, when you take into

account that one of the charges occurred when he

was nineteen years of age and over twelve (12) years

ago, the District Court clearly had the discretion to

find that Rodriguez’ criminal history category was

clearly an overrepresentation of his criminal past.

Because there was “reliable information [to] indicate

. . . that the defendant’s criminal history category

substantially over-represents the seriousness of the

defendant’s criminal history or the likelihood that he

22

will commit other crimes, a downward departure was

warranted” and because same was denied and said

denial was affirmed by the Eleventh Judicial Circuit,

Rodriguez’ Petition for Writ of Certiorari must be

granted.

IV. CERTIORARI REVIEW SHOULD BE GRANTED

WHERE THE ELEVENTH CIRCUIT ERRED IN

AFFIRMING RODRIGUEZ’ SENTENCE THAT WAS

NOT SUBSTANTIVELY REASONABLE CONSIDERING

18 U.S.C. § 3553(A)-(F).

In reviewing Rodriguez’ sentence for substantive

reasonableness, this Court must consider whether

the factors of 18 U.S.C. § 3553(a) support his sentence

based upon the facts of this case. Gall v. United

States, 552 U.S. 38, 128 S.Ct. 586 (2007); see also,

United States v. Johnson, 485 F.3d 1264 (11th Cir.

2007). Rodriguez argues that the District Court abused

its discretion when it failed to give proper weight and

consideration to the factors enumerated in 18 U.S.C.

§ 3553(a) and instead entered the sentence basing it

on “impermissible factors”. United States v. Sarras,

575 F.3d 1191, 1219 (11th Cir. 2009). And that the

Eleventh Circuit failed to consider said argument.

Although the District Court may have discretion

in deciding the weight of said factors, said discretion

is not unbridled and the District Court must assure

that a just and reasonable sentence is given. See,

United States v. Williams, 456 F.3d 1353 (11th Cir.

2006). It is clear that the sentence imposed by the

District Court in this case, was both procedurally and

substantially unreasonable. Therefore, said sentence

should not have been affirmed; but reversed.

23

Because of the sentence imposed, Rodriguez was

denied his right to due process of law and a reasonable

sentence pursuant to the dictates of Booker, Gall and

Kimbrough v. United States, 552 U.S. 85, 128 S.Ct.

558 (2007). Rodriguez’ sentence did not promote the

administration of justice nor law. It did not provide

just punishment considering the fact that Rodriguez

pled guilty and accepted responsibility and had a

minimal role in the conspiracy. Considering the above

facts and the sentence that Rodriguez received, the

Eleventh Circuit should have vacated the sentence, not

affirmed it. Koon v. United States, 518 U.S. 81, 116

S.Ct. 2035 (1996); United States v. Livesay, 525 F.3d

1081 (11th Cir. 2008). Based on the errors of both the

District Court and the Eleventh Circuit, this Court

must grant Rodriguez’ Petition for Writ of Certiorari

to prevent a further miscarriage of justice. See also,

United States v. Bonilla, 579 F.3d 1233 (11th Cir. 2009).

It is quite clear that the strict application of the

advisory sentencing guidelines produced a sentence

greater than necessary for punishment under Section

3553(a) for Rodriguez. The statutory factors set forth

in Section 3553(a) weigh strongly in favor of a sentence

outside of and below the advisory sentencing guidelines. Case law is clear that where circumstances

warrant, a District Court can impose sentences that

vary downward significantly from the advisory guidelines range and the Appellate Court will affirm such

sentences as reasonable. Kimbrough v. United States,

552 U.S. 85, 128 S.Ct. 558 (2007); see also, United

States v. Phaknikone, 605 F.3d 1099 (11th Cir. 2010).

Because of the above, the sentence imposed by

the District Court should have been reversed by the

Eleventh Circuit as there was a “definite and firm

24

conviction that the District Court committed a clear

error of judgment in weighing the § 3553(a) factors”.

United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.

2008). Accordingly, the Eleventh Circuit should have

reversed the sentence and because it did not, Rodriguez’ Petition for Writ of Certiorari must be granted.

In considering all of Rodriguez’ arguments, it is

clear that Rodriguez has met his burden of demonstrating that the sentence imposed by the District

Court was substantially unreasonable and that the

sentence should have been vacated. United States v.

Thomas, 446 F.3d 1348 (11th Cir. 2006); see also,

United States v. Saac, 632 F.3d 1203 (11th Cir. 2011).

Because Rodriguez’ sentence was affirmed by the

Eleventh Circuit, his Petition for Writ of Certiorari

must be granted.

25

CONCLUSION

This Court should explicitly adopt Rodriguez’

position based upon law and equity. The upholding of

his sentence by the Eleventh Circuit seriously affects

the fairness, integrity and public reputation of the

judicial proceedings. See generally, United States v.

Rodriguez, 398 F.3d 1291 (11th Cir. 2005); United

States v. Olano, 507 U.S. 725, 113 S.Ct. 1770 (1993).

For all of these reasons and in the interest of justice,

the Petitioner, Edwar Rodriguez, prays that this Court

will issue a Writ of Certiorari and reconsider the

decision below.

Respectfully submitted,

DAVID J. JOFFE

COUNSEL OF RECORD

JOFFE LAW, P.A.

THE 110 TOWER BUILDING

110 S.E. 6TH STREET

17TH FLOOR, SUITE 1700

FT. LAUDERDALE, FL 33301

(954) 723-0007

DAVIDJJOFFE@AOL.COM

COUNSEL FOR PETITIONER

OCTOBER 31, 2022