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Before
Howard, Selya and Thompson,
Circuit Judges.
September 4, 2013
He
also
argues
that
the
sentencing
court's
See United
Prior History
Rosario-Otero was a member of the "Los Dementes" drug
-2-
841(a)(1).
Rosario-Otero
offenses.
We
also
concluded,
however,
"that
the
that
Rosario
was
responsible
for
the
elevated
drug
Consequently, we vacated
In doing
court
may
properly
attribute
to
Rosario
when
the
Id. at 71 n.14.
Resentencing
We issued our decision in Fernndez-Hernndez on June 30,
2011.
-3-
He also requested a
transfer from the mainland United States to Puerto Rico. The court
granted both requests, setting the hearing for October 5, 2011.
Rosario-Otero arrived in Puerto Rico one week before the hearing.
However, due to scheduling conflicts, he did not meet with his
counsel until the night before the resentencing hearing.
At the hearing the following day, Rosario-Otero, through
his counsel, requested a continuance.
accompanied
previously
by
any
written
discussed
request,
continuance
had
Rosario-Otero
the
government.
In
William
-4-
According to William,
that these vials came from his drug point, but did not specify
which drug point he owned.
Finally, William stated that he saw Rosario-Otero handle
drugs on two additional occasions.
Otero asked William to process cocaine into crack cocaine and taste
it for him.
Project across the street from the Juana Matos Housing Project.
William did not specify the location of the second encounter.
He
-5-
Moreover,
Cristobal
Rodriguez.
Agent
Rodriguez
had
previously
However,
cocaine
attributable
to
Rosario-Otero,
concluded
that
-6-
Denial of Continuance
We review the district court's denial of a continuance
is
reasons
contemporaneously
presented
in
West v. United
States, 631 F.3d 563, 568 (1st Cir. 2011) (citation omitted)
(internal quotation marks omitted).
other
continuance;
available
assistance;
inconvenience
to
the
others;
of
sentencing
are
probable
utility
and
likelihood
See id.
disfavored
-7-
the
given
of
a
of
"Requests for
the
district
did
not
resentencing.
inform
him
of
the
evidence
it
would
present
at
-8-
the
acknowledged
need
that
for
"we
Rivera-Gmez's
received
testimony,
evidence
from
When
however,
William
Rosario
he
[And]
Rosario-
Rosario-Otero
has
not
shown
the
probable
was
that
located
--
so
Rivera-Gmez's
it
cannot
be
hypothetical
said
with
any
testimony,
if
B.
review
district
court's
factual
findings
at
2002) (quoting Cumpiano v. Banco Santander, 902 F.2d 148, 152 (1st
Cir. 1990)).
Cintrn-Echautegui, 604
F.3d at 6.
The district court did not commit clear error in arriving
at its drug calculation. Although there was testimony that the Los
Dementes organization distributed a kilogram of cocaine each week
for several years, the district court limited its drug finding to
a total of between 5 and 15 kilograms of cocaine.
The government
times
each
week,
often
to
pick
up
packaged
drugs.
In addition, William
-10-
regarding
Rosario-Otero's
corroboration,
drug
point
Fernndez-Hernndez,
lacking
652
F.3d
in
at
detail
70,
at
or
the
point identified Rosario-Otero as the owner, but also that RosarioOtero gave William drug vials matching those sold at the drug
point. William also recounted several occasions when Rosario-Otero
personally gave him small amounts of cocaine to process into crack
and to test its potency.
the
court
was
not
required
to
reject
William's
was
not
inconsistent,
-11-
William's
improved
memory
at
In the case of
21 U.S.C. 841(b)(1)(C).
-12-
would have been required to give notice that it would rely on that
prior conviction to increase his sentence.
error review requires that the (1) "error" is (2) "plain" and (3)
"affects substantial rights," and that the error (4) "seriously
affects the fairness, integrity or public reputation of judicial
proceedings."
error
doubled
supervised release.
the
minimum
term
of
See
This easily
Rosario-Otero's
the
term
of
supervised
release
exceeded
the
statutory
-14-
release
and
remand
the
case
for
further
action