United States v. Rosario, 652 F. App'x 38

Defendant Antonio Rosario was convicted of one count of conspiracy to commit Hobbs Act robbery, one substantive Hobbs Act robbery count (Counts One and Two), and one count of using, carrying, and brandishing a firearm in relation to a crime of violence (Count Three).
District court calculated a Guidelines range of 77–96 months for Counts One and Two and imposed an 84-month mandatory consecutive sentence on Count Three, for a total of 180 months’ imprisonment.
During trial the jury sent a note prompting a supplemental instruction that discussed aiding and abetting as to Count Two only. Rosario argued that the case was not tried on an aiding-and-abetting theory.
Rosario challenged two prosecution summation comments as improper comments on his failure to testify or post-arrest silence.
At sentencing Rosario argued his 180-month sentence was substantively unreasonable and amounted to an impermissible trial penalty relative to co-defendants.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Supplemental aiding-and-abetting jury instruction for Count Two	Government: instruction addressed jury question about aiding/abetting as to Count Two	Rosario: trial was not conducted on aiding-and-abetting theory; instruction was erroneous	Any error was harmless because the jury convicted Rosario of Count Three as a principal and thus necessarily found principal conduct for Count Two
Prosecutor’s summation comments (alleged comment on silence)	Government: statements responded to defense points and referenced witness testimony and Rosario’s post-Miranda statement	Rosario: statements impermissibly commented on his failure to testify or silence	Statements were not improper — one responded to defense argument; the other referred to Rosario’s post-Miranda statements after waiver, not silence
Sentence substantively unreasonable / trial penalty	Government: within-Guidelines sentence justified by §3553(a) analysis	Rosario: sentence disparate from co-defendants and reflected a punitive trial penalty	District court did not abuse discretion; within-Guidelines sentence at top end was reasonable given record
Overall prejudice / need for new trial	Government: alleged errors harmless viewed in context of whole trial	Rosario: cumulative errors deprived him of a fair trial	Court affirmed; errors either not improper or harmless and no reversible prejudice shown

United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir. 2004) (a principal’s conduct can establish related substantive counts when appropriate)
United States v. Malpeso, 115 F.3d 155 (2d Cir. 1997) (harmless-error analysis for instructional issues)
United States v. Pimentel, 83 F.3d 55 (2d Cir. 1996) (aiding-and-abetting versus principal liability distinctions)
United States v. Caracappa, 614 F.3d 30 (2d Cir. 2010) (prosecutorial-summation misconduct standard for reversal)
United States v. Whitten, 610 F.3d 168 (2d Cir. 2010) (Fifth Amendment test for comments on defendant’s silence)
United States v. Knoll, 16 F.3d 1313 (2d Cir. 1994) (contextual test for whether summation comments are comments on silence)
United States v. Pitre, 960 F.2d 1112 (2d Cir. 1992) (use of post-Miranda statements in prosecution argument)
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (abuse-of-discretion standard for substantive reasonableness of sentence)
United States v. Rodriguez, 715 F.3d 451 (2d Cir. 2013) (presumption that within-Guidelines sentence is reasonable in most cases)