Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-5-2002

USA v. Rosario
Precedential or Non-Precedential:

Docket 1-1282




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Recommended Citation
"USA v. Rosario" (2002). 2002 Decisions. Paper 151.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/151


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                                      NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT



                           No. 01-1282



                      UNITED STATES OF AMERICA


                                 v.

                         RENALDO ROSARIO


Appellant


            Appeal from the United States District Court
              for the Eastern District of Pennsylvania
             (D.C. Criminal Action No. 98-cr-00334-01)
               District Judge: Honorable Marvin Katz


            Submitted Under Third Circuit LAR 34.1(a)
                         January 18, 2002

              Before: ALITO and ROTH, Circuit Judges
                    SCHWARZER*, District Judge

                  (Opinion filed March 5, 2002)


     * Honorable William W Schwarzer, Senior District Judge for the
Northern District
of California, sitting by designation.




                           O P IN I O N


ROTH, Circuit Judge

     Defendant Renaldo Rosario pled guilty to conspiracy to distribute
more than fifty
grams of crack and more than one kilogram of heroin. He was sentenced to
life
imprisonment, followed by supervised release for a period of ten years.
He has appealed.
For the foregoing reasons, we will grant counsel's request to withdraw and
will affirm the
judgment of the District Court.
     Rosario's counsel filed a brief pursuant to Anders v. California, 

(1967) expressing his belief that there were no non-frivolous issues
presented for our
review. As required by Anders, counsel directed us to portions of the
record that might
arguably support an appeal. Also, as required by Anders, Rosario was
given notice of his
attorney's desire to withdraw, allowing him the opportunity to raise any
issues for appeal
in a pro se brief. Rosario states three basis for his appeal: 1) that the
District Court erred
in finding that he did not make a credible assertion of innocence at the
change of plea
hearing, 2) that the District Court erred in finding the government would
be prejudiced
by a two-year delay of trial, and 3) that he was not aware he faced a
mandatory life
sentence.
     Rule 32(e) states that when a "motion to withdraw a plea of guilty or
nolo
contendere is made before sentence is imposed, the court may permit the
plea to be
withdrawn if the defendant shows any fair and just reason." We have
recognized three
factors in evaluating the "fair and just" reasoning which would permit
withdraw: 1)
whether the defendant asserts his innocence; 2) whether the government
would be
prejudiced by the withdrawal; and 3) the strength of the defendant's
reason to withdraw
the plea. United States v. Huff, 873 F.2d 709,711 (3rd Cir. 1989).
     First, the District Court found that Rosario did not make a credible
assertion of his
innocence of the conspiracy charges against him. The District Court
recognized
Rosario's "commendable candor" in clarifying the actual dates on which he
was involved
in the conspiracy he pled guilty but found that this was not a fair and
just reason to
withdraw the guilty plea.
     Second, the District Court found through the plea colloquy that
Rosario
understood, with the aid of an interpreter, his constitutional rights, the
factual basis of the
charges, and that he would be exposed to a mandatory life sentence as a
result of his
guilty plea.
     Lastly, the District Court determined that there would be great
prejudice against
the Government if the motion to withdraw the guilty plea were granted in
light of the
two-year delay. The District Court concluded that there was no "fair and
just" reason for
withdraw of his guilty plea.
     For the above reasons, we will affirm the judgment of the District
Court and grant
counsel's request to withdraw.


TO THE CLERK:
     Please file the foregoing Opinion.
                              By the Court,


                                   /S/ Jane R. Roth
                                    Circuit Judge