United States District Court, W.D. Virginia, Roanoke Division
E. Conrad Senior United States District Judge.
Rosario, a federal inmate proceeding pro se, filed this
petition for a writ of habeas corpus under 28 U.S.C. §
2241. Relying on United States v. Wheeler, 886 F.3d
415 (4th Cir. 2018), 28 U.S.C. § 2255(e), and
Burrage v. United States, 571 U.S. 204 (2014),
Rosario seeks to invalidate the sentence imposed on him by
the United States District Court for the Middle District of
Florida in September of 1998, No. 98-100-cr-Orl-22c (SI).
Upon review of the record, the court concludes that the
respondent's motion to dismiss the petition must be
March 21, 1998, emergency medical services ("EMS")
personnel responded to a possible overdose at a residence in
Orlando, Florida. When EMS arrived, they encountered James
Rosenblum, a 17-year-old male, who was suffering from
respiratory failure and an apparent drug overdose. His mother
was administering CPR. EMS administered oxygen and Narcan, a
drug that counteracts an opiate overdose, and transported him
to a hospital. There, he received further treatment and was
admitted to the intensive care unit in critical condition.
Toxicology testing revealed the presence of heroin
hydrochloride and marijuana in Rosenblum's system. He
also reported having ingested alcohol, antihistamines and
antibiotics. His treating physician ultimately diagnosed
Rosenblum as having suffered a heroin overdose. He remained
in intensive care for two days.
investigating agent learned from Rosenblum that he had
purchased the heroin he ingested from Karlos Vazquez on March
20, 1998. The agent then interviewed Vazquez, who admitted
providing the heroin to Rosenblum after purchasing it from
jury of the United States District Court for the Middle
District of Florida returned a superseding indictment,
charging Rosario with conspiring to possess heroin with
intent to distribute, in violation of 28 U.S.C. § 846.
Rosario v. United States, No. 99-6304 (M.D. FL). On
June 17, 1998, Rosario pleaded guilty to the charge, pursuant
to a written plea agreement.
presentence investigation report ("PSR") recited
the offense conduct summarized here and recommended that
Rosario should be held accountable for 2.6 grams of heroin
and the distribution of heroin that caused Rosenblum's
near-fatal overdose. See gen. Mot. Dism. Ex. 4, ECF
No. 14. As such, the PSR found that under 28 U.S.C. §
841(b)(1)(C), because the distribution resulted in
"serious bodily injury," Rosario was subject to a
mandatory minimum sentence of 20 years in prison and a
maximum of life. Under § 2D 1.1 (a)(2) of the U.S.
Sentencing Guidelines Manual ("USSG"), because the
offense resulted in serious bodily injury, the PSR assigned
Rosario's Base Offense Level at 38. With a three-point
reduction for acceptance of responsibility, his Total Offense
Level was calculated at 35. The PSR also calculated that
Rosario, at age 21, had a Criminal History Category VI. Thus,
his mandatory sentencing guideline range was 292 to 365
months (24 years, 4 months, to 30 years, 5 months).
sentencing hearing on September 11, 1998, the government
moved for the sentence enhancements outlined in the PSR.
Rosenblum's treating physician testified that
Rosenblum's condition on March 21, 1998, presented a
serious risk of loss of life without treatment, based on
reports that when EMS arrived, he had no pulse and was not
breathing, and on his condition upon arrival at the hospital.
Mot. Dism. Ex. 2, at 10, ECF No. 11-2. The doctor also
testified that although Rosenblum had ingested a combination
of small amounts of other substances, without the heroin,
these other substances combined would not have caused
respiratory failure. Id. at 20. The doctor affirmed
that in her opinion, Rosenblum "was experiencing a
heroin overdose when he came to the hospital."
Id. at 21-22.
court accepted the PSR and agreed that the evidence supported
application of the § 841(b)(1)(C) statutory enhancement
and USSG § 2D1.1(a)(2), placing the base offense level
at 38. The court granted Rosario a three-point reduction for
acceptance of responsibility and sentenced him to 292 months
in prison, the bottom of the guideline range. Rosario is
currently in custody at the United States Penitentiary in Lee
County, Virginia. His projected release date is July 15,
2024. See https://www.bop.gov/inmateloc/ (search BOP Register
appealed the judgment, arguing that his enhanced sentence was
so much greater than the actual offense sentence that the
district court should have applied a clear and convincing
evidence standard, instead of a preponderance of the evidence
standard. The Eleventh Circuit Court of Appeals affirmed the
judgment. United States v. Rosario, 181 F.3d 108
(11th Cir. 1999) (unpublished), cert,
denied, 528 U.S. 978 (Nov. 1, 1999).
filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 in the United States
District Court for Middle District of Florida. The court
dismissed his motion on December 8, 2000, as time barred.
Rosario v. United States, No. 6:00cv1533cvORL22C
(M.D. Fl. 2000), affd, 31 Fed.Appx. 938 (11th Cir. 2002).
Rosario was confined at a federal prison in South Carolina,
he filed a § 2241 petition in the United States District
Court for the District of South Carolina. Rosario v.
F.C.I. Bennettsville, No. 9:16CV00033 (D.S.C.). He
argued that the Florida district court improperly enhanced
his sentence from 24 months to 24 years, when he was, in
fact, actually innocent of the facts necessary to support
that enhancement in light of Burrage, 134 S.Ct. at 892
(holding that defendant cannot have sentence enhanced under
21 U.S.C. § 841(b)(1)(C) where the use of a drug he
distributed was not "but-for" cause of the death or
injury). The South Carolina district court dismissed the
petition upon finding that the Fourth Circuit had not, at
that time, held that a federal defendant could use a §
2241 petition to challenge the validity of his sentence as
imposed. Rosario v. F.C.I. Bennettsville, No.
9:16CV00033, 2016 WL 4951163, *3 (D.S.C. Aug. 10, 2016).
present petition under § 2241, Rosario seeks relief
under Wheeler, 886 F.3d at 423, in which the Fourth
Circuit recognized limited circumstances where a federal
defendant may bring a § 2241 claim challenging his
sentence as imposed. Rosario contends that his enhanced
sentence is unconstitutional because he "is actually
innocent of the overdose/body injury enhancement sentence in
light of Burrage. Mem. Supp. Pet. 3, ECF No. ...