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Rosario v. Breckon

United States District Court, W.D. Virginia, Roanoke Division

September 11, 2019

RAMON ROSARIO, Petitioner,
M. BRECKON, Respondent.


          Glen E. Conrad Senior United States District Judge.

         Ramon 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 granted.


         On March 21, 1998, emergency medical services ("EMS") personnel responded to a possible overdose at a residence in Orlando, Florida.[1] 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.

         The 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 Rosario.

         A grand 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.

         The 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).

         At the 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.

         The 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 (search BOP Register Number 23086-018).

         Rosario 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).

         Rosario 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).

         While 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).

         In the 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. ...

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