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United States v. Rosso

United States District Court, W.D. Arkansas, Fort Smith Division

December 18, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
ROBERT J. ROSSO, JR. DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Defendant's Motion for Reduction of Sentence pursuant to 18 U.S.C. § 3582(c)(2) filed on August 30, 2017. (ECF No. 75). The United States filed its response on October 25, 2017. (ECF No. 79). Defendant has not filed a reply. The matter is ready for report and recommendation.

         I. Background

         Defendant, Robert J. Rosso, Jr. (“Rosso”), was indicted on January 14, 1998 and charged with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (ECF No. 1). An Information Filed to Seek Enhancement Pursuant to Title 21 U.S.C. § 851(a) was filed by the United States on January 23, 1998. (ECF No's. 5, 79-1). Rosso appeared for arraignment on January 29, 1998; he entered a plea of not guilty to the Indictment, and a jury trial was set on March 30, 1998. (ECF No. 6). At the conclusion of the trial, the jury returned its verdict finding Rosso guilty of conspiracy to distribute methamphetamine. (ECF No's. 11; 74, p. 193).

         A Presentence Investigation Report (“PSR”) was prepared by the United States Probation Office on May 8, 1998. (ECF No. 14). On May 15, 1998, the Government advised that it had no objections to the PSR, but that corrections were needed in paragraphs 10 and 11. (ECF No. 14, p. 15). On May 26, 1998, Rosso advised that he had no objections to the PSR. (Id.). The corrections requested by the Government were made, and a revised PSR, together with an Addendum, was submitted on June 8, 1998. (ECF No. 14, p. 1).

         The final PSR determined that Rosso was accountable for 1.1 kilograms of actual methamphetamine or 4.2 kilograms of a mixture of methamphetamine, and based on that drug quantity Rosso's base offense level was determined to be 34. (ECF No. 14, ¶¶ 17, 19, 24). A four-level enhancement was assessed for Rosso's aggravating role in the offense as an organizer, leader, manager, or supervisor of a criminal activity that involved five or more participants or was otherwise extensive. (ECF No. 14, ¶ 27). Because Rosso was at least 18 years of age at the time of the offense, the offense was a felony controlled substance offense, and he had at least two prior felony convictions for controlled substance offenses, Rosso was considered a career offender. (ECF No. 14, ¶ 32). Rosso's total offense level was determined to be 38. (ECF No. 14, ¶ 33).

         Rosso had three prior felony controlled substance convictions. (ECF No. 14, ¶¶ 35, 37, 39). Rosso's criminal history score of nine would have placed him in criminal history category IV, but because he was determined to be a career offender his criminal history category was automatically VI. (ECF No. 14, ¶ 43).

         As stated in the PSR, pursuant to 21 U.S.C. § 841(b)(1)(A) any person having two or more prior convictions for a felony drug offense shall be sentenced to a mandatory term of life imprisonment without release. (ECF No. 14, ¶ 54). With a total offense level of 38 and a criminal history category of VI, Rosso's Guidelines range was determined to be 360 months to life imprisonment; however, pursuant to U.S.S.G. § 5G1.1, because the statute requires a mandatory term of life imprisonment without release, the Guidelines range shall be life imprisonment without release. (ECF No. 14, ¶ 55).

         Rosso appeared for sentencing on July 17, 1998. (ECF No. 13). The Court made inquiry that Rosso was satisfied with his counsel (ECF No. 72, p. 4); the PSR was reviewed and adopted (ECF No. 72, p. 13); Rosso and his counsel were afforded the opportunity to speak and make a statement (ECF No. 72, p. 14); and, the Court then imposed the statutorily required sentence of life imprisonment without release, a $15, 000.00 fine, and a $100.00 special assessment (ECF No. 72, p. 19). Judgment was entered by the Court on July 17, 1998. (ECF No. 16).

         The Eighth Circuit Court of Appeals affirmed Rosso's conviction and sentence on June 17, 1999. United States v. Rosso, 179 F.3d 1102 (8th Cir. 1999).

         Rosso has attempted, unsuccessfully, to obtain post-conviction relief on numerous occasions. Rosso filed a motion pursuant to 28 U.S.C. § 2255 on September 8, 2000. (ECF No. 27). The motion was denied on June 6, 2001. (ECF No. 36). A certificate of appealability was denied by this Court on September 5, 2001 (ECF No. 42), and the Eighth Circuit Court of Appeals dismissed Rosso's appeal on February 20, 2002 (ECF No. 46). The Eighth Circuit Court of Appeals also denied Rosso's petitions for authorization to file successive habeas applications in the district court on January 24, 2006 (ECF No. 47) and on May 18, 2012 (ECF No. 58). A motion for remission of the fine (ECF No. 48) was denied on October 21, 2008 (ECF No. 53). A motion to correct clerical errors (ECF No. 54) was denied on October 19, 2011 (ECF No. 57). A motion to modify (ECF No. 59) was denied on July 16, 2013 (ECF No. 64), and his appeal from that order was summarily dismissed by the Eighth Circuit Court of Appeals on December 2, 2013 (ECF No. 71-1).

         On August 30, 2017, nearly three years after Amendment 782 to the United States Sentencing Guidelines became effective on November 1, 2014, Rosso filed his pro se Motion for Reduction of Sentence pursuant to 18 U.S.C. § 3582(c)(2) contending a reduction of his sentence is warranted pursuant to Amendment 782. (ECF No. 75).

         II. Discussion

         “Federal courts are forbidden, as a general matter, to ‘modify a term of imprisonment once it has been imposed, ' 18 U.S.C. § 3582(c); but the rule of finality is subject to a few narrow exceptions.” Freeman v. United States, 564 U.S. 522, 526 (2011). 18 U.S.C. § 3582(c) sets forth three exceptions: (1) in certain circumstances “upon motion of the Director of the Bureau of Prisons, ” see 18 U.S.C. § 3582(c)(1)(A); or, (2) “to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure, ” see 18 U.S.C. § 3582(c)(1)(B); or, (3) “upon motion of the defendant or the Director of the Bureau of Prisons, ...


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