2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-5-2002

USA v. Rosario

Precedential or Non-Precedential:

Docket 1-1282

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Recommended Citation

"USA v. Rosario" (2002). 2002 Decisions. Paper 151.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/151
 NOT PRECEDENTIAL

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 

 No. 01-1282 

 

 UNITED STATES OF AMERICA 

 

 v. 

 

 RENALDO ROSARIO 

 

Appellant 

 

 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Criminal Action No. 98-cr-00334-01) 

 District Judge: Honorable Marvin Katz 

 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 January 18, 2002 

 

 Before: ALITO and ROTH, Circuit Judges

 SCHWARZER*, District Judge 

 

 (Opinion filed March 5, 2002) 

 

 * Honorable William W Schwarzer, Senior District Judge for the 

Northern District 

of California, sitting by designation. 

 

 

 O P IN I O N 

ROTH, Circuit Judge 

 Defendant Renaldo Rosario pled guilty to conspiracy to distribute 

more than fifty 

grams of crack and more than one kilogram of heroin. He was sentenced to 

life 
imprisonment, followed by supervised release for a period of ten years. 

He has appealed. 

For the foregoing reasons, we will grant counsel's request to withdraw and 

will affirm the 

judgment of the District Court. 

 Rosario's counsel filed a brief pursuant to Anders v. California, 386 

U.S. 738 

(1967) expressing his belief that there were no non-frivolous issues 

presented for our 

review. As required by Anders, counsel directed us to portions of the 

record that might 

arguably support an appeal. Also, as required by Anders, Rosario was 

given notice of his 

attorney's desire to withdraw, allowing him the opportunity to raise any 

issues for appeal 

in a pro se brief. Rosario states three basis for his appeal: 1) that the 

District Court erred 

in finding that he did not make a credible assertion of innocence at the 

change of plea 

hearing, 2) that the District Court erred in finding the government would 

be prejudiced 

by a two-year delay of trial, and 3) that he was not aware he faced a 

mandatory life 

sentence. 

 Rule 32(e) states that when a "motion to withdraw a plea of guilty or 

nolo 

contendere is made before sentence is imposed, the court may permit the 

plea to be 

withdrawn if the defendant shows any fair and just reason." We have 

recognized three 

factors in evaluating the "fair and just" reasoning which would permit 

withdraw: 1) 

whether the defendant asserts his innocence; 2) whether the government 

would be 

prejudiced by the withdrawal; and 3) the strength of the defendant's 

reason to withdraw 

the plea. United States v. Huff, 873 F.2d 709,711 (3rd Cir. 1989). 

 First, the District Court found that Rosario did not make a credible 

assertion of his 

innocence of the conspiracy charges against him. The District Court 

recognized 

Rosario's "commendable candor" in clarifying the actual dates on which he 

was involved 

in the conspiracy he pled guilty but found that this was not a fair and 

just reason to 

withdraw the guilty plea. 

 Second, the District Court found through the plea colloquy that 

Rosario 

understood, with the aid of an interpreter, his constitutional rights, the 

factual basis of the 

charges, and that he would be exposed to a mandatory life sentence as a 

result of his 

guilty plea. 
 Lastly, the District Court determined that there would be great 

prejudice against 

the Government if the motion to withdraw the guilty plea were granted in 

light of the 

two-year delay. The District Court concluded that there was no "fair and 

just" reason for 

withdraw of his guilty plea. 

 For the above reasons, we will affirm the judgment of the District 

Court and grant 

counsel's request to withdraw. 

 

TO THE CLERK: 

 Please file the foregoing Opinion. 

 By the Court, 

 /S/ Jane R. Roth 

 Circuit Judge