109 F.4th 77
1st Cir.2024Background
- John Derick Rosario-Merced was convicted of (1) possessing crack cocaine with intent to distribute and (2) possessing a firearm in furtherance of a drug trafficking crime, based on evidence obtained during an arrest operation targeting another individual in his apartment.
- Police recovered two firearms, four magazines (three high-capacity), 107 rounds of ammunition, crack cocaine, and fentanyl during the arrest.
- Rosario pled guilty to the cocaine and firearm counts; other charges, including possessing a machinegun and heroin, were dismissed.
- Sentencing Guidelines recommended a total of 75–81 months; the district court imposed a 114-month sentence (33 months above the high end of the Guidelines range), based on the quantity of weapons and ammunition and the need for deterrence.
- Rosario appealed, arguing the upward variance was both procedurally and substantively unreasonable.
Issues
| Issue | Rosario's Argument | Government's Argument | Held |
|---|---|---|---|
| Upward Variance—Procedure | District court gave inadequate reasons, focused too much on PR’s crime rate, punished for uncharged conduct. | Variance justified by additional contraband and community deterrence need. | District court provided sufficient, individualized reasons for the variance. |
| Upward Variance—Substance | 33-month upward variance was excessive and unreasonable. | Sentence was justified given quantity/type of weapons, ammo, and local context. | Upward variance was reasonable; sentence was defensible and within discretion. |
| Consideration of PR Crime Rate | Basing sentence on PR’s murder rate was impermissible. | Community characteristics can inform deterrence rationale. | Judge considered community factors alongside individualized factors; not error. |
| Constructive Possession | Did not constructively possess items thrown out window (raised late). | Constructive possession supported by facts; waived on appeal. | Waived for failure to timely raise; not "highly convincing"; not addressed. |
Key Cases Cited
- Beckles v. United States, 580 U.S. 256 (Sentencing Guidelines are advisory, not binding)
- Gall v. United States, 552 U.S. 38 (Required individualized assessment for sentencing)
- United States v. Polaco-Hance, 103 F.4th 95 (Community characteristics can be considered, but not exclusively)
- United States v. Rivera-Berríos, 968 F.3d 130 (Quantity of ammunition alone may not support upward variance)
- United States v. Greig, 717 F.3d 212 (Sentencing judges have wide discretion to evaluate sentencing factors)