21-680

United States v. Rosario

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION 

TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS 

GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S 

LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH 

THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY 

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT 

REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 14th day of May, two thousand twenty-four. 

PRESENT: 

 

DENNIS JACOBS,

ROBERT D. SACK,

RICHARD J. SULLIVAN,

Circuit Judges. 

_____________________________________

UNITED STATES OF AMERICA, 

Appellee, 

v. No. 21-680 

IVAN ROSARIO, a.k.a. GHOST, 

Defendant-Appellant. 

_____________________________________
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For Appellant: MURRAY E. SINGER, Port Washington, NY. 

For Appellee: SEAN P. MAHARD (Conor M. Reardon, on 

the brief), Assistant United States 

Attorneys, for Vanessa Roberts Avery, 

United States Attorney for the District of 

Connecticut, New Haven, CT.

Appeal from a judgment of the United States District Court for the District 

of Connecticut (Vanessa L. Bryant, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED. 

Ivan Rosario appeals from the district court’s judgment following his 

conviction after trial of one count of causing and inducing a person to destroy 

evidence in violation of 18 U.S.C. §§ 1512(b)(2)(B) and (j). The district court 

imposed a sentence of 210 months’ imprisonment, based in part on its finding that 

Rosario had perjured himself at trial, which merited a two-level sentencing 

enhancement for obstruction of justice under section 3C1.1 of the United States 

Sentencing Guidelines. Rosario appealed his conviction and sentence, arguing, 

among other things, that the district court failed to make specific factual findings 

to support the application of the obstruction enhancement. Although we 

affirmed Rosario’s conviction, United States v. Rosario, 842 F. App’x 694, 696 (2d 
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Cir. 2021), we remanded in a separate opinion directing the district court to make 

“further findings in support of its enhancement under [section] 3C1.1,” United 

States v. Rosario, 988 F.3d 630, 634 (2d Cir. 2021). Two weeks later, the district 

court issued a ten-page written decision articulating such findings in detail. 

Rosario now renews his appeal, arguing that (1) the district court clearly erred in

applying the obstruction enhancement because there was no evidence that he 

falsely testified at trial or that his testimony, even if false, was material; and (2) the 

district court violated Rosario’s constitutional rights to counsel and due process 

when it made factual findings for the sentencing enhancement without soliciting 

additional briefing or argument. We assume the parties’ familiarity with the 

underlying facts, procedural history, and issues in dispute, to which we refer only 

as necessary to resolve this appeal. 

I. Sentencing Enhancement 

Before applying a section 3C1.1 enhancement based on perjury, the 

“sentencing court must find by a preponderance of the evidence that the defendant 

1) willfully 2) and materially 3) committed perjury, which is (a) the intentional (b) 

giving of false testimony (c) as to a material matter.” United States v. Thompson, 

808 F.3d 190, 194–95 (2d Cir. 2015) (internal quotation marks omitted). We review 
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a district judge’s application of an obstruction-of-justice enhancement under a 

“mixed standard of review.” United States v. Khedr, 343 F.3d 96, 102 (2d Cir. 2003). 

We review for clear error the sentencing court’s factual findings, United States v. 

Cassiliano, 137 F.3d 742, 745 (2d Cir. 1998); and review de novo its legal conclusion 

that the facts found amount to obstruction of justice, while “giving due deference 

to the district court’s application of the guidelines to the facts,” United States v. 

Pena, 751 F.3d 101, 105 (2d Cir. 2014) (internal quotation marks omitted). 

Rosario specifically disagrees with the district court’s finding that his 

testimony concerning the phone’s contents and why he sought its destruction was 

false, arguing that there is no evidence contradicting his testimony that he sought 

to destroy the phone to prevent his wife from seeing intimate images of him with 

another woman. But the district court cited ample evidence to support its 

conclusion that Rosario was motivated to destroy the phone because it contained 

evidence of his criminal conduct. In particular, the court noted that it was 

difficult to square Rosario’s testimony – that he wanted the phone destroyed to 

keep his wife from finding out he was unfaithful – with the transcripts of Rosario’s 

recorded calls, in which he spoke in code, referred multiple times to the federal 

criminal investigation of his activities, described the phone as “dangerous,” and 
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never even mentioned his wife or the intimate images. App’x at 26–28. That 

evidence was more than adequate to support the district court’s finding that 

Rosario’s testimony was false. 

The same evidence supported the district court’s determination that 

Rosario’s false testimony was material. Whether false statements made at trial 

are material turns on “whether the false testimony was capable of influencing the 

fact finder in deciding the issues before it.” United States v. Guariglia, 962 F.2d 160, 

164 (2d Cir. 1992) (alterations and internal quotation marks omitted). The 

obstruction of justice charged here required the jury to find that Rosario acted with 

the “intent to impair the [phone’s] integrity or availability for use in an official 

proceeding.” 18 U.S.C. § 1512(b)(2)(B). Rosario’s testimony as to why he sought 

the phone’s destruction went to the heart of whether he had the requisite intent to 

be convicted of obstruction of justice. Had the jury accepted his testimony at face 

value, Rosario could not have been convicted. Because Rosario’s testimony was 

pivotal to his defense, the district court correctly found it to be material. 

II. No Supplemental Briefing or Argument 

Rosario next argues that he was deprived of his Fifth Amendment due 

process right to be heard and his Sixth Amendment right to counsel because the 
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district court did not “afford [Rosario] the opportunity to address any of the 

factual or legal issues sent back to it for its consideration.” Rosario Br. at 13–14. 

Rosario specifically claims that he “had a right and a need to address” the factual 

issues that we directed the district court to resolve on remand. Id. at 13. We 

disagree.

Our opinion resolving Rosario’s first appeal gave the district court two 

options: “to make any further findings in support of its enhancement under 

[section] 3C1.1,” or, in the event that “the facts d[id] not justify the enhancement,” 

to resentence Rosario. Rosario, 988 F.3d at 634. Given our limited mandate for 

remand, the district court was not required to give Rosario a full-blown sentencing 

hearing. The Due Process Clause requires a defendant to be given the 

opportunity to rebut allegations likely to impact his sentencing. See, e.g., United 

States v. Pugliese, 805 F.2d 1117, 1122–23 (2d Cir. 1986). But Rosario already 

received that opportunity before and at his sentencing. The government argued 

for a perjury enhancement in its sentencing submission, Rosario’s counsel argued 

against it in his opposition, and the issue was then aired in the sentencing hearing. 

On remand, the district court made the requisite findings based on the record that 
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existed when Rosario was sentenced; as a result, no additional opportunity to be 

heard was necessary. 

In sum, because Rosario was provided with an opportunity to rebut the 

government’s claims at his sentencing, he was not deprived of his due process 

right to be heard. And because he was provided with the right to counsel at his 

sentencing, through standby counsel, he was not deprived of his right to counsel 

at a critical stage in a criminal proceeding. Rosario’s constitutional challenges 

therefore fail.

We have considered Rosario’s remaining arguments and find them to be 

without merit. Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court