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  • United States v. Jorge Rosell, 11th Cir. (2011)

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    The court affirmed Rosell's sentence of 37 months for conspiracy to manufacture and distribute marijuana. The court found that Rosell was not similarly situated to his co-defendant Montejo-Garcia, who received 12 months, because Montejo-Garcia cooperated with authorities while Rosell did not. The court also declined to consider Rosell's claim of a potential conflict of interest related to payment of his legal fees, finding that the issue was not ripe for appeal since the district court did not address it.

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    Filed: 2011-06-20 Precedential Status: Non-Precedential Docket: 09-12826

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    The court affirmed Rosell's sentence of 37 months for conspiracy to manufacture and distribute marijuana. The court found that Rosell was not similarly situated to his co-defendant Montejo-Garcia, who received 12 months, because Montejo-Garcia cooperated with authorities while Rosell did not. The court also declined to consider Rosell's claim of a potential conflict of interest related to payment of his legal fees, finding that the issue was not ripe for appeal since the district court did not address it.

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    24 views5 pages

    United States v. Jorge Rosell, 11th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    The court affirmed Rosell's sentence of 37 months for conspiracy to manufacture and distribute marijuana. The court found that Rosell was not similarly situated to his co-defendant Montejo-Garcia, who received 12 months, because Montejo-Garcia cooperated with authorities while Rosell did not. The court also declined to consider Rosell's claim of a potential conflict of interest related to payment of his legal fees, finding that the issue was not ripe for appeal since the district court did not address it.

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    of 5

    [DO NOT PUBLISH]

    IN THE UNITED STATES COURT OF APPEALS


    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 09-12826
    Non-Argument Calendar
    ________________________

    FILED
    U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    JUNE 20, 2011
    JOHN LEY
    CLERK

    D. C. Docket No. 08-00032-CR-1-SPM-AK


    UNITED STATES OF AMERICA,

    Plaintiff-Appellee,
    versus
    JORGE ROSELL,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    _________________________
    (June 20, 2011)
    Before WILSON, ANDERSON and BLACK, Circuit Judges.
    PER CURIAM:
    Jorge Rosell-Diaz (Rosell) appeals his sentence of 37 months
    imprisonment, imposed at the low end of the applicable guideline range, after

    pleading guilty to conspiracy to manufacture, distribute, and possess with intent to


    distribute more than 100 marijuana plants, in violation of 21 U.S.C.
    841(a)(1), 841(b)(1)(B)(vii), and 846. Rosell argues that his sentence was
    unreasonable because the district court failed to avoid an unwarranted sentencing
    disparity when sentencing him to 37 months imprisonment and his codefendant,
    Yosnell Montejo-Garcia, to 12 months imprisonment. He also argues that we
    should remand his case so that the district court may consider the possibility of a
    conflict of interest resulting from the potential payment of his counsels attorneys
    fees by a codefendant.
    I.
    We review the reasonableness of Rosells sentence under a deferential
    abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128
    S. Ct. 586, 591. The party challenging the sentence has the burden of establishing
    that the sentence was unreasonable. See United States v. Talley, 431 F.3d 784, 788
    (11th Cir. 2005) (per curiam). The district court is required to impose a sentence
    that is sufficient, but not greater than necessary to comply with the purposes that
    are listed in 18 U.S.C. 3553(a)(2), including the need to reflect the seriousness of
    the offense, promote respect for the law, provide just punishment for the offense,
    deter criminal conduct, protect the public from the defendants future criminal

    conduct, and provide the defendant with needed educational or vocational training
    or medical care. 18 U.S.C. 3553(a)(2). The district court must also consider the
    nature and circumstances of the offense, the history and characteristics of the
    defendant, the kinds of sentences available, the applicable guideline 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).
    In reviewing the reasonableness of a sentence, we conduct a two-step
    review. Gall, 552 U.S. at 51, 128 S. Ct. at 597. First, we must ensure that the
    sentence was procedurally reasonable, meaning that the district court properly
    calculated the guidelines range, treated the Sentencing Guidelines as advisory,
    considered the 3553(a) factors, did not select a sentence based on clearly
    erroneous facts, and adequately explained the chosen sentence. Id. Once we
    determine that a sentence is procedurally reasonable, we must examine whether the
    sentence was substantively reasonable under the totality of the circumstances.
    Id. A district court may impose a higher sentence on one defendant if he is not
    similarly situated to his codefendants. See United States v. McNair, 605 F.3d
    1152, 1232 (11th Cir. 2010) (affirming a district courts sentence when a number
    of factors distinguished the defendant from his codefendants). A defendant who

    cooperates with the government is not similarly situated with one who has not
    cooperated, and thus there is no unwarranted sentence disparity between such
    codefendants when they receive sentences of different lengths. See United States
    v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009).
    Rosell has not shown that the district court imposed an unreasonable
    sentence. He was not similarly situated to Montejo-Garcia, his co-defendant, and
    his sentence was otherwise reasonable. Upon review of the record and
    consideration of the parties briefs, we affirm Rosells sentence.
    II.
    A claim is not ripe for our consideration when the district court did not
    entertain the claim nor develop the factual record. See United States v. Patterson,
    595 F.3d 1324, 1328 (11th Cir. 2010) (quotation omitted) (holding that a
    defendants ineffective-assistance-of-counsel claim was not ripe on direct appeal).
    The preferred means for deciding a claim of ineffective assistance of counsel is
    through a 28 U.S.C. 2255 motion. Id.
    Rosells conflict-of-interest claim is not ripe for our consideration because
    the district court did not develop the factual record nor consider his claim.
    Therefore, we decline to consider the claim on direct appeal.

    AFFIRMED.1

    Appellants request for oral argument is denied as moot.


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