Scribd Logo
Upload

Welcome to Scribd!

  • United States v. Rosales, 82 F.3d 403, 1st Cir. (1996)

    Uploaded by

    Scribd Government Docs
    9 views3 pages
    This document summarizes a court case in which Roberto Rosales appealed his sentence for abusive sexual conduct. The court had imposed a 120 month prison sentence, which involved an eight level upward departure from sentencing guidelines. The appeals court affirmed this sentence, finding that a two level enhancement for obstruction of justice was warranted based on Rosales committing perjury in his trial testimony. The court also found that the extent of the eight level upward departure was reasonable given the additional uncharged victims and repeated abuse. The appeals court thus fully affirmed Rosales' sentence.

    Original Description:

    Filed: 1996-04-24 Precedential Status: Non-Precedential Citations: 82 F.3d 403 Docket: 95-1192

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    This document summarizes a court case in which Roberto Rosales appealed his sentence for abusive sexual conduct. The court had imposed a 120 month prison sentence, which involved an eight level upward departure from sentencing guidelines. The appeals court affirmed this sentence, finding that a two level enhancement for obstruction of justice was warranted based on Rosales committing perjury in his trial testimony. The court also found that the extent of the eight level upward departure was reasonable given the additional uncharged victims and repeated abuse. The appeals court thus fully affirmed Rosales' sentence.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    9 views3 pages

    United States v. Rosales, 82 F.3d 403, 1st Cir. (1996)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case in which Roberto Rosales appealed his sentence for abusive sexual conduct. The court had imposed a 120 month prison sentence, which involved an eight level upward departure from sentencing guidelines. The appeals court affirmed this sentence, finding that a two level enhancement for obstruction of justice was warranted based on Rosales committing perjury in his trial testimony. The court also found that the extent of the eight level upward departure was reasonable given the additional uncharged victims and repeated abuse. The appeals court thus fully affirmed Rosales' sentence.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    of 3

    82 F.

    3d 403

    NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished


    opinions may be cited only in related cases.
    UNITED STATES, Appellee,
    v.
    Roberto ROSALES, Defendant, Appellant.
    No. 95-1192.

    United States Court of Appeals, First Circuit.


    April 24, 1996.

    APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE


    DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S.
    District Judge ]
    Theodore L. Craft on brief for appellant.
    Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa, Senior
    Litigation Counsel, and Miguel A. Pereira, Assistant United States
    Attorney, on brief for appellee.
    D. Puerto Rico
    AFFIRMED.
    Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and
    CYR, Circuit Judge.
    Per Curiam.

    In United States v. Rosales, 19 F.3d 763 (1st Cir.1994), this court affirmed
    defendant's conviction on four counts of abusive sexual conduct, in violation of
    18 U.S.C. 2244(a)(1), but remanded for resentencing because of the district
    court's failure to provide a rationale for the degree of upward departure
    undertaken. On remand, the lower court again departed upward under U.S.S.G.
    5K2.0 and again imposed a 120-month prison term. Defendant now advances
    two principal challenges to his new sentence--insisting that (1) the imposition

    of a two-level enhancement under 3C1.1 for obstruction of justice was


    unwarranted, and (2) the level of upward departure was unreasonable. As
    neither contention proves persuasive, we summarily affirm.
    2

    Extended discussion is unnecessary. The 3C1.1 enhancement was grounded


    on the district court's conclusion that defendant committed perjury during his
    trial testimony by repeatedly denying any involvement in the specific offense
    conduct charged. See, e.g., United States v. Dunnigan, 507 U.S. 87, 98 (1993)
    ("Upon a proper determination that the accused has committed perjury at trial,
    an enhancement of sentence is required by the Sentencing Guidelines."). In so
    concluding, the court applied the correct legal test for perjury: "whether the
    defendant intentionally gave false testimony concerning a material matter."
    United States v. Campbell, 61 F.3d 976, 984 (1st Cir.1995). Its findings
    adequately encompassed all of the necessary factual predicates. See, e.g.,
    United States v. Matiz, 14 F.3d 79, 84 (1st Cir.1994) (rejecting challenge to
    findings less comprehensive than those issued here). And those findings were
    adequately supported by the record. Indeed, as the district court observed, the
    nature of defendant's denials--pertaining to specific allegations of personal
    conduct--belied any suggestion that his inaccurate testimony was attributable to
    "confusion, mistake, or faulty memory." Dunnigan, 507 U.S. at 95.

    In objecting to the upward departure, defendant does not contend that either of
    the aggravating circumstances relied on by the district court was an improper
    basis upon which to ground a departure.1 He does not assert that either factor
    was factually unsupported. And he does not reiterate his earlier argument that
    the degree of departure was unexplained. Instead, he insists simply that the
    extent of the departure undertaken was unreasonable. We disagree.

    The district court departed upward by eight levels and imposed a term of 120
    months--a sentence representing a 110% increase over the applicable sentencing
    range ceiling of 57 months. Such a departure, while substantial, cannot be
    deemed anomalous; we have upheld departures of even greater magnitude on
    various occasions. See, e.g., United States v. Rostoff, 53 F.3d 398, 411 (1st
    Cir.1995) (reviewing cases in which upward departures representing increases
    of from 165% to 380% over the respective GSR ceilings were deemed
    reasonable). And the 120-month sentence was well short of the applicable 40year statutory maximum. Given these considerations, given the
    "persuasive[ness]" of the district court's explanation for selecting the degree of
    departure, United States v. Quinones, 26 F.3d 213, 220 (1st Cir.1994), and
    given the "substantial leeway" that is accorded such a determination, United
    States v. Pratt, 73 F.3d 450, 453 (1st Cir.1996), we are unprepared to say that
    the court acted unreasonably.2

    Affirmed. See Loc. R. 27.1.

    The court rested its decision to depart upward on two factors: the fact that four
    additional victims were identified beyond those involved in the counts of
    conviction, and the fact that most of defendant's victims were abused on
    multiple occasions. It ended up adding four levels to account for each of these
    concerns, for a total departure of eight levels

    Defendant has listed some five other issues in his "statement of issues," but has
    provided no argument with respect thereto. We therefore decline to address
    them. See, e.g., McIntosh v. Antonio, 71 F.3d 29, 38 (1st Cir.1995)

    You might also like