United States v. Rossin , 80 F. App'x 790 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-18-2003
USA v. Rossin
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3155
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 02-3155
UNITED STATES OF AMERICA
v.
WARREN ROSSIN,
Appellant
__________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 00-CR-564)
District Judge: The Honorable Petrese B. Tucker
__________________
Submitted Pursuant to LAR 34.1
November 4, 2003
Before: McKEE, SMITH and WEIS, Circuit Judges
(Filed: November 17, 2003 )
_____________
OPINION OF THE COURT
_____________
SMITH, Circuit Judge.
Defendant Warren Rossin pleaded guilty to conspiring to distribute more than
1,000 kilograms of marijuana. He stipulated in a Guilty Plea Agreement to the fact that
he had a prior Texas “conviction for a felony drug offense” for which he “was sentenced
to an eight year term of probation.” Based on this prior Texas conviction, the
presentence investigation report indicated that the mandatory minimum sentence of
twenty years under 21 U.S.C. § 841(b)(1)(A) was applicable.1 At sentencing in the
United States District Court for the Eastern District of Pennsylvania, Rossin argued that
the minimum sentence of twenty years under § 841(b)(1)(A) was not applicable because
his prior Texas drug conviction, which resulted in a deferred adjudication, was not “final”
as required by the statute. In addition, Rossin argued that the calculation of his offense
level under the United States Sentencing Guidelines (“U.S.S.G.”) should not have
included an upward adjustment for an obstruction of justice under U.S.S.G. § 3C1.1
because certain letters he wrote from prison to two acquaintances were not threatening.
Rossin also asserted that he was entitled, because of his guilty plea, to a downward
adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1.
The District Court rejected Rossin’s argument with regard to the finality
requirement of § 841(b)(1)(A) and also enhanced Rossin’s guideline calculation by two
points for obstruction of justice, finding that the letters could reasonably be interpreted as
threatening. As a consequence, the Court also refused to reduce Rossin’s offense level by
three points for acceptance of responsibility. Rossin’s resulting offense level was 37.
1
Section 841(b)(1)(A) provides, in relevant part, that:
If any person commits such a violation after a prior conviction for a felony
drug offense has become final, such person shall be sentenced to a term of
imprisonment which may not be less than 20 years and not more than life
imprisonment. . . .
2
With a criminal history category of II, and without taking into account the § 841(b)(1)(A)
violation, his guideline range for imprisonment would have been 235 to 293 months. 2
Consistent with the mandatory minimum of twenty years pursuant to § 841(b)(1)(A),
however, the guideline range became 240 to 297 months. The District Court sentenced
Rossin at the bottom of that range, i.e., 240 months.
Rossin challenges the District Court’s conclusion that his prior Texas conviction
was final. While Rossin does not contest the District Court’s finding that the letters he
authored could be reasonably interpreted as threatening, he asserts for the first time, that
the obstruction of justice enhancement was improper because the District Court failed to
make any finding that the allegedly threatening letters obstructed or impeded the
administration of justice in this case.
I.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our review is
plenary over the issue of whether Rossin’s prior Texas conviction is “final” for purposes
of 21 U.S.C. § 841(b)(1)(A). United States v. Meraz, 998 F.2d 182, 183 (3d Cir. 1993).
We also exercise plenary review over the District Court’s interpretation and application of
the sentencing guidelines. United States v. Jenkins, 275 F.3d 283, 286 (3d Cir. 2001).
2
Rossin argues that, had the obstruction of justice enhancement not been applied and
had he received the acceptance of responsibility downward adjustment, his offense level
would have been 32, resulting in a substantially lower guideline range of 135 to 168
months.
3
We review the District Court’s factual findings for clear error. Id. Because the basis for
Rossin’s challenge to the District Court’s enhancement for obstruction of justice was
raised for the first time on appeal, however, we review for plain error. Fed. R. Crim. P.
52(b). Accordingly, there must be an “error” which is “plain” and that “affects
substantial rights.” United States v. Olano, 507 U.S. 725, 732 (1993). An error affects
substantial rights if it was prejudicial to the defendant and affected the outcome of the
district court proceeding. Id. at 734. A decision to correct the forfeited error is “within
the sound discretion of the court of appeals, and the court should not exercise that
discretion unless the error ‘seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” Id. (quoting United States v. Young, 470 U.S. 1, 15 (1985)).
II.
In United States v. Meraz, 998 F.2d at 182, we considered whether a deferred
sentence under New Mexico law constituted a “final” prior conviction for purposes of
sentencing under former § 841(b)(1)(B).3 Under New Mexico’s law, the defendant’s
prior conviction had been dismissed upon successful completion of her probationary
3
Section 841(b)(1)(B) was similar to § 841(b)(1)(A), providing:
If any person commits such a violation after one or more prior convictions .
. . for a felony under any other provision of this subchapter . . . or other law
of a State . . . relating to narcotic drugs . . . have become final, such person
shall be sentenced to a term of imprisonment which may not be less than 10
years. . . .
This language was replaced in 1994 pursuant to Pub. L. 103-322, § 90105(a), and is now
the same as that in § 841 (b)(1)(A).
4
period. We determined, however, that the interpretation of § 841(b)(1)(B)’s language
was a matter of federal law and declared that the “test for finality under § 841(b)(1)(B) is
whether a prior conviction is subject to attack on direct appeal[.]” Id. at 184. Because
the defendant had not taken an appeal from the imposition of her deferred sentence and
the time for doing so had expired, we concluded that the conviction was final.
In holding that Meraz’s prior conviction warranted enhancing her sentence, we
were guided by the fact that even though New Mexico’s law provides for the dismissal of
the criminal charges upon completion of probation, the conviction itself was not erased
for purposes of New Mexico’s habitual offender statute. Id. We declared that “[o]ur
result supports the general purpose of habitual offender statutes, which is to deter
convicted criminals from committing crimes and to incarcerate for longer periods those
who have shown an inclination to commit crimes.” Id.
In United States v. Vasquez, 298 F.3d 354 (5th Cir. 2002) (per curiam), the Fifth
Circuit considered a challenge to the finality requirement of § 841(b)(1)(A) raised by a
defendant previously convicted under Texas law of a drug offense which resulted in a
deferred adjudication. That court, relying on its own precedent in United States v.
Morales, 854 F.2d 65 (5th Cir. 1988), declared that for “purposes of sentencing
enhancement under § 841(b)(1), a conviction does not become final until the time for
seeking direct appellate review has elapsed[.]” Vasquez, 298 F.3d at 359. After noting
that Texas law afforded a defendant the right to appeal issues relating to the deferred
5
adjudication only when the deferred adjudication was first imposed, and that there was a
separate and distinct right to appeal any revocation thereof,4 the Fifth Circuit concluded
that Vasquez’s conviction was final because it had not been appealed within the thirty day
period following his guilty plea. The Court concluded that the appropriate inquiry was
whether the time for appealing the entry of deferred adjudication had passed, not whether
the deferred adjudication had been revoked. Id.Rossin acknowledges Meraz’s test for finality and Vasquez’s holding with regard
to deferred adjudication under Texas law. He contends, however, that his conviction is
not final because under the Texas statute the proceeding is deferred “without entering an
adjudication of guilt.” Tex. Code Ann., art. 42.12, § 5(a). Rossin’s argument, while not
entirely unpersuasive, ignores the context of this language. The statute provides for
deferral by the tribunal only “after a plea of guilty or nolo contendere, hearing the
evidence, and finding that it substantiates the defendant’s guilt[.]” Id. (emphasis added);
see also Visosky v. State, 953 S.W.2d 819, 821 (Tex. App. 1997) (“The option of deferred
adjudication by its very terms is limited to those defendants who actually plead guilty or
4
See Tex. Code Crim. Proc., Art. 42.12, § 23(b), which specifies that the right to appeal
a conviction and punishment is “accorded the defendant at the time he is placed on
community supervision. When he is notified that his community supervision is revoked
for violation of the conditions of community supervision and he is called on to serve a
sentence in a jail or in the institutional division of the Texas Department of Criminal
Justice, he may appeal the revocation.” See also Manuel v. State, 994 S.W.2d 658 (Tex.
Crim. App. 1999) (en banc) (holding that issues relating to deferred adjudication order
must be raised when the deferred adjudication is first imposed and may not be raised a
second time if the deferred adjudication is subsequently revoked).
6
nolo contendere before the court after waiving a jury trial.”). Thus, there is a finding of
guilt that affords the defendant a right to appeal issues regarding the merits of the offense
of conviction. Absent an appeal following that admission of guilt, the conviction is final
for purposes of § 841(b)(1)(A).
Contrary to Rossin’s assertion, we find Meraz and Vasquez on point. In the
absence of any evidence presented to the District Court that Rossin filed an appeal of his
Texas deferred adjudication and the imposition of probation, we conclude that the
conviction was final for purposes of § 841(a)(1)(A). Accordingly, the District Court did
not err by sentencing Rossin to imprisonment for the minimum term of twenty years, i.e.,
240 months, required by § 841(b)(1)(A).5
We will affirm the judgment of the District Court.
______________________________________
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ D. Brooks Smith
Circuit Judge
5
We need not address Rossin’s challenge of the District Court’s calculation of his
offense level because Rossin must serve the mandatory minimum sentence of twenty
years, i.e., 240 months, and a recalculation of his offense level will not result in a lower
guideline range. In short, he cannot demonstrate that he was prejudiced by the District
Court’s enhancement and its denial of an acceptance of responsibility adjustment.
7