Appellate Law

CA1: another ?in furtherance? affirmance ending with an opaque sentencing discussion

By S. COTUS

US v. Rosado, No. 07-1465 (unpublished) affirms a conviction for distributing ?cocaine base.?  The First turns back a sufficiency challenge saying that of course a jury could infer that someone knew how much drugs were in a car.  It also concludes that of course a jury could conclude that someone that resists arrest is as knowledge of guilt (as opposed to a legitimate fear of being framed). And, of course, the jury could infer that ?Eight Balls? indicated distributive intent.

But then it strays into bending territory.  The First says that because?the evidence showed that both guns were loaded and located in close proximity to the defendant and to the drugs and therefore could easily have been used to resist any effort, by the police or others? that a jury could conclude that the guns were possessed ?in furtherance? of his drug activities.  I mean, what gives, why does the First even bother saying that ?mere presence? of a gun isn?t ?in furtherance? of a crime, but then it always concludes that all guns are ?in furtherance? of drug business.

Likewise, objections to sentencing (based on what seems to be judicial notice of what crack looks like) are turned away.  A reasonableness challenge fails, as his long sentence was still below the guidelines.  It concludes by saying ?To the extent that defendant quibbles with the weight afforded to the guidelines as opposed to other factors, such balancing, absent abuse of its discretion, is for the district court.?  So does that mean that weight afforded the guidelines is now a matter of ?discretion? as opposed to ?reasonableness.??

Full post as published by Appellate Law and Practice on April 14, 2008 (boomark / email).