Background
Reynaldo Rosa-Borges had previously been sentenced for possessing a firearm in furtherance of a drug trafficking crime. After violating his supervised release terms by possessing controlled substances and altering a urine sample, he was placed on an action plan. In March two thousand twenty-one, police seized a loaded pistol and ammunition from Rosa. He was subsequently indicted for possession of a firearm by a prohibited person under Section eighteen United States Code Section nine hundred twenty-two subsection G one. The district court had previously vacated his sentences in a prior appeal, Rosa One, for relying on unreliable hearsay regarding ammunition ownership. On remand, the district court resentenced Rosa, imposing an upward variance based on ammunition quantity and type, and sentenced him for the supervised release violation.
The court’s reasoning
The court held that the district court committed a procedural error by relying on a legally invalid rationale to justify an upward variance. The court found that thirty-one rounds of ammunition is consistent with simple possession and cannot justify an upward variance. Additionally, the court found clear error in the district court’s finding that the ammunition was the type used by NATO countries for firearms of war, as there was no evidence in the record to support this. The court determined this error was not harmless because the record did not show the district court would have inevitably imposed the same sentence without it. Consequently, the court vacated the sentence and remanded to a different judge. Regarding the revocation sentence, the court found that Rosa waived his challenges because he failed to address the plain error standard in his opening brief and did not discuss the revocation sentence in his reply brief.
What it means going forward
Defendants in the First Circuit may no longer rely on ammunition quantities consistent with simple possession or unproven claims about ammunition types to justify upward variances. Sentencing courts must ensure that any factual findings supporting an upward variance are supported by evidence in the record.
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