United States of America v. Steven Usuama Rose

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-1128
_____________
UNITED STATES OF AMERICA
v.
STEVEN USUAMA ROSE,
Appellant
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 07-cr-383-001)
District Judge: Honorable Timothy J. Savage
_______________
Submitted Under Third Circuit LAR 34.1(a)
January 28, 2010
Before: RENDELL and JORDAN, Circuit Judges,
and AMBROSE,* District Judge.
(Filed: February 18, 2010 )
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OPINION OF THE COURT
_______________
_______________
*Honorable Donetta W. Ambrose, United States District Court Judge for the Western
District of Pennsylvania, sitting by designation.

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JORDAN, Circuit Judge.
Steven Usuama Rose appeals the judgment of the United States District Court for
the Eastern District of Pennsylvania imposing a sentence of 120 months imprisonment
following his convictions for distribution of cocaine and possession of a firearm by a
convicted felon. Rose had been indicted by state authorities who later dismissed the state
charges against him in favor of federal prosecution. Rose contends that the delay
between his state proceedings and his federal conviction violated his Sixth Amendment
right to a speedy trial. He also attacks the procedural reasonableness of his sentence. For
the reasons that follow, we will affirm Rose’s conviction and vacate and remand for
resentencing.
I. Background
On August 9, 2005, Rose attempted to sell 0.3 grams of cocaine to an undercover
police officer in Lancaster, Pennsylvania. Officers arrested him after a brief foot chase,
during which Rose discarded a nine-millimeter firearm. Upon the arrest, police searched
Rose and discovered an additional 0.6 grams of cocaine, for a total of 0.9 grams involved
in the offense. Rose was remanded for pretrial detention following a preliminary hearing
on September 27, 2005.

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According to the letter, Rose’s federal Sentencing Guidelines range would have been1
111-123 months, were he convicted in federal court. His range under the Pennsylvania
Sentencing Guidelines on comparable charges would have been 36-48 months.
3
A. The Information and Prosecution
On October 24, 2005, the Lancaster County District Attorney filed an information
charging Rose with drug-possession and firearms offenses. Pursuant to protocol within
the District Attorney’s office, state prosecutors referred Rose’s case to the United States
Attorney’s Office to be considered for federal prosecution. On January 19, 2006, the U.S.
Attorney’s Office preliminarily approved the case for federal prosecution but continued to
review the matter during the following two months to determine whether Rose’s case
should be coordinated with another federal investigation into criminal activity by one of
Rose’s relatives. Ultimately, the federal prosecutors deemed coordination unnecessary,
and, on March 13, 2006, the U.S. Attorney sent a letter to Rose’s counsel (“the March 13
letter”) stating that Rose would not be prosecuted federally if he pled guilty to drug and
weapons charges in state court and agreed to a negotiated sentence of between 6½ and
fifteen years. The letter also stated that “the charges [would] be adopted for federal1
prosecution” if Rose failed to plead guilty in state court. Throughout much of 2006,
Rose’s state proceedings continued without federal involvement.
Rose ultimately refused to enter a plea agreement that satisfied the conditions set
out in the March 13 letter, and he pled not guilty to the state charges on September 18,
2006. Nevertheless, Rose’s attorney and the state prosecutor, who had been cross-

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designated as a special assistant U.S. Attorney to handle any federal prosecution that
resulted from the case, continued to negotiate in hopes of reaching a deal that would
prompt Rose to accept a state plea and forestall the possible initiation of federal charges.
By late November or early December, however, it was clear to the prosecutor that further
negotiations would be unproductive.
In late May or early June of 2007, officials in the District Attorney’s office sent
Rose’s file to federal prosecutors for the purpose of preparing a federal case against Rose.
On June 28, 2007, Rose moved to dismiss the state charges against him under Rule 600 of
the Pennsylvania Rules of Criminal Procedure, which requires that criminal trials
commence within 180 days after a written complaint is filed. See PA. R. CRIM. P.
600(A)(2) (“Trial in a court case in which a written complaint is filed against the
defendant, when the defendant is incarcerated on that case, shall commence no later than
180 days from the date on which the complaint is filed.”). The U.S. Attorney’s Office
obtained a federal indictment against Rose on July 10, 2007, after which the Court of
Common Pleas dismissed the state charges against Rose, rendering his Rule 600 motion
moot.
On September 11, 2007, Rose moved to dismiss the federal indictment on Sixth
Amendment speedy trial grounds, arguing that the federal government was “entirely at
fault and had no reasonable basis” for allowing the two-year lapse of time after his arrest
on state charges. (App. at 38.) He further argued that dismissal was warranted because

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he had been held in pretrial detention since his preliminary hearing in September 2005
and that he had suffered prejudice because the delay had impaired his ability to locate
witnesses and conduct a physical investigation of the alleged crime.
On March 7, 2008, the District Court denied Rose’s motion to dismiss. The Court
concluded that Rose’s federal speedy trial rights attached on the date of the federal
indictment and that the pendency of his state proceedings had no bearing on those rights.
While the Court expressed concern regarding the length of Rose’s state custody, it held
that the federal government, as a sovereign distinct from the states, “is not bound by the
action of state authorities and that successive state and federal prosecutions are
constitutionally permissible.” United States v. Rose, No. 07-CR-383, 2008 WL 650034,
at *2 & n.2 (E.D. Pa. Mar. 7, 2008) (quoting United States v. Marler, 756 F.2d 206, 211
(1st Cir. 1985)). The Court further observed that only eight months had passed between
the return of the federal indictment and the Court’s ruling on the motion to dismiss, that
much of that time had been taken up by proceedings associated with motions in limine
filed by Rose, and that Rose had identified no witnesses or physical evidence that had
become unavailable to him as a result of the alleged delay. Trial commenced on August
19, 2008, and Rose was found guilty of distribution of cocaine and of possession of a
firearm by a convicted felon.

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The 2008 edition of the United States Sentencing Guidelines Manual was used to2
prepare Rose’s PSR.
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B. Sentencing
A presentence report (“PSR”) was prepared, which included the observation that,
based on Rose’s offense conduct, his offense level would typically be 28, his criminal
history category would be V, and his Sentencing Guidelines range would be 130 to 162
months. However, the PSR further noted that Rose qualified as a career offender, which2
increased his offense level to 34, his criminal history category to VI, and his Sentencing
Guidelines range to 262 to 327 months.
The Court held a sentencing hearing on December 22, 2008. Defense counsel
urged the Court to vary below the career offender Guidelines range in light of the
disparity between the ordinary offense conduct range and the career offender range.
Counsel argued that career offender sentences should be reserved for cases in which the
defendant deals in large quantities of drugs, and should not be imposed in cases such as
Rose’s, which involved less than one gram of cocaine. The Court, in considering that
argument, mistakenly suggested that Rose’s offense conduct range was 140 to 175
months and asked defense counsel to verify that calculation. Defense counsel then
contributed to the confusion by incorrectly agreeing that the Court had accurately stated
Rose’s offense conduct range. The Court allowed the prosecutor, who did not notice the
error, to respond to defense counsel’s argument, after which the Court spoke directly with
Rose regarding Rose’s criminal history and prospects for rehabilitation.

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Gunter requires district courts to follow a three-step procedure when imposing a3
sentence. First, the district court must calculate the defendant’s Sentencing Guidelines
range without regard to departure motions. Gunter, 462 F.3d at 247. Second, the court
must rule on the parties’ motions for upward or downward departures. Id. At the
conclusion of the second step, the district court must recalculate the defendant’s
Sentencing Guidelines range to reflect its ruling on the departure motions. Id. Third, the
district court must consider the factors enumerated in § 3553(a) and exercise its discretion
to craft a sentence that is appropriate under the circumstances of each particular case. Id.
7
The Court adopted the PSR and used Rose’s career offender Guidelines range at
the first step of its analysis under United States v. Gunter, 462 F.3d 237 (3d Cir. 2006).3
At the third Gunter step, however, upon reviewing the sentencing factors enumerated in
18 U.S.C. § 3553(a), the Court granted Rose a significant downward variance from his
career offender range and imposed a sentence of 120 months. The Court observed that,
“had it not been for the career offender provision, ... the sentence in this case would be
significantly lower in terms of the advisory Sentencing Guidelines range.” (App. at 334.)
The Court noted that Rose qualified as a career offender because he had multiple prior
convictions for possession of relatively small amounts of drugs but that those convictions
placed him in a sentencing range similar to that frequently seen in large-scale drug-
trafficking cases. The Court concluded that a significant downward variance was
necessary to prevent an unwarranted sentencing disparity between Rose, who had a
history of street-level dealing, and other small-time dealers. The Court never referred to
its mistaken statement regarding Rose’s offense conduct Guidelines range. This timely
appeal followed.

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The District Court possessed jurisdiction over Rose’s criminal case pursuant to4
18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
8
II. Discussion4
Rose advances two grounds for relief on appeal. First, he argues that the District
Court erred in denying his motion to dismiss on speedy trial grounds. Second, he argues
that the District Court’s misstatement of his offense conduct range under the Guidelines
constitutes an erroneous Guidelines calculation that renders his sentence procedurally
unreasonable. We address each of those arguments in turn.
A. Speedy Trial
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy ... trial.” U.S. CONST. amend. VI. When a defendant
contends that the government has violated his speedy trial rights, the court must employ
the four-part balancing test announced in Barker v. Wingo, 407 U.S. 514 (1972), to assess
the merits of the defendant’s claim. United States v. Dent, 149 F.3d 180, 184 (3d Cir.
1998). The Barker test requires the court to evaluate the defendant’s claim in light of “(1)
the length of the delay [pending trial], (2) the reasons for the delay, (3) whether, in due
course, the defendant asserted his right to a speedy trial[,] and (4) the actual prejudice the
defendant suffered as a result.” Id. (citing Barker, 407 U.S. at 530). If the length of the
delay is brief, speedy trial rights are not implicated, and the court need not consider the
final three Barker factors. Hakeem v. Beyer, 990 F.2d 750, 760 (3d Cir. 1993). However,
if the delay is lengthy, the court must inquire into all four Barker factors. Barker, 407

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U.S. at 530. If the Barker calculus leads the court to conclude that the government has
violated a defendant’s rights, the court must dismiss the indictment. Id. at 522. We
conduct a de novo review of a district court’s speedy trial analysis. Hakeem, 990 F.2d at
758.
We begin by evaluating the length of the delay pending trial, which requires us to
identify the point at which the right to a speedy trial arises. Speedy trial rights apply only
after the defendant has been “indicted, arrested, or otherwise officially accused.” United
States v. MacDonald, 456 U.S. 1, 6 (1982). Rose was indicted by a federal grand jury on
July 10, 2007. He does not predicate his Sixth Amendment claim upon delay in his
federal proceedings, nor does he argue that the pace at which the District Court
administered his federal criminal case could support a speedy trial claim. Instead, he
argues that his federal speedy trial rights attached not with the return of the federal
indictment but on March 13, 2006, when the U.S. Attorney issued the letter stating that he
would be prosecuted if he failed to reach a plea deal with state prosecutors. According to
Rose, the March 13 letter constituted an official accusation sufficient to trigger federal
speedy trial rights because the letter stated that his case would be “adopted for federal
prosecution” unless he pled guilty in state court. (Supp. App. at 2.)
Rose’s argument is unavailing because federal speedy trial rights attach only at the
time of a federal arrest or the institution of “a formal [federal] criminal charge.”
MacDonald, 456 U.S. at 6. We have recently said in a case like this that, “[w]hen an

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As in Battis, Rose was initially indicted for state offenses and subsequently charged5
with federal crimes arising from the same underlying conduct. As in Battis, Rose argued
that his federal speedy trial rights attached while his state proceedings were pending. The
only significant distinction between Battis and the present case is that the defendant in
Battis did not receive an offer of prosecutorial forbearance from the U.S. Attorney.
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arrest on state charges is followed by a federal indictment, the right to a speedy trial in the
federal case is triggered by the federal indictment, and the time period under
consideration commences on that date.” United States v. Battis, --- F.3d ---, 2009 WL
4755684, at *4 (3d Cir. Dec. 14, 2009). The state arrest and state prosecution do not5
control the speedy trial analysis because the state and federal governments are separate
sovereign entities, and the actions of one cannot typically bind the other. See
MacDonald, 456 U.S. at 10 n.11 (observing in dicta that “an arrest or indictment by one
sovereign would not cause the speedy trial guarantees to become engaged as to possible
subsequent indictments by another sovereign”).
The March 13 letter is obviously not an indictment and does not otherwise qualify
as a formal charge. It neither resulted in Rose’s incarceration under federal authority nor
initiated federal criminal proceedings against him. See Hakeem, 990 F.2d at 760 (holding
that speedy trial rights are “measured from the date of formal accusation, i.e., from the
earliest date of arrest or indictment”). The letter is simply a representation that the federal
government would forbear pursuing charges against Rose, provided that he satisfactorily
resolved his criminal liability in state court. It did not obligate the federal government to
prosecute Rose if he failed to reach a state plea deal, and the U.S. Attorney’s Office could

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have chosen to take no prosecutorial action after state plea negotiations turned sour.
Moreover, while the odds of indictment were surely high, the government had no
guarantee that federal prosecutors would successfully persuade a grand jury to indict
Rose. Hence, at the time the letter was prepared, there remained a possibility that the
U.S. Attorney’s Office would be unwilling or unable to pursue the case to indictment.
Because the letter neither charged Rose nor caused him to be placed in federal custody, it
is properly viewed as nothing more than a representation that federal authorities would
refrain from attempting to prosecute him if he pled guilty in state court, not as a formal
accusation. Accordingly, we conclude that the federal indictment against Rose provides
the appropriate point of reference for measuring his federal speedy trial rights. The
District Court therefore did not err in refusing to include Rose’s state proceedings when
evaluating those rights, and we will affirm the Court’s denial of Rose’s motion to dismiss.
B. Sentencing
Rose appeals his sentence on the ground that the District Court abused its
discretion when it erroneously identified the sentencing range that would have applied to
him had he not qualified as a career offender. In raising this challenge, Rose does not
dispute that the Court correctly calculated his career offender Guidelines range, that the
Court relied upon that range at the first step of its analysis under Gunter, or that the Court
arrived at the 120-month sentence by varying downward from his career offender range.
The only challenge on appeal is that the Court’s erroneous identification of Rose’s

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offense conduct Guidelines range impairs the validity of his sentence because it infected
the analysis at the final Gunter step, the sentencing decision under 18 U.S.C. § 3553(a).
Where, as here, the defendant failed to call an erroneous Guidelines calculation to
the Court’s attention, we review for plain error. United States v. Pardo, 25 F.3d 1187,
1193 (3d Cir. 1994) (reviewing unpreserved challenge to Guidelines calculation for plain
error). “Plain error requires the defendant to demonstrate that the district court committed
an error that is plain and that affect[s] substantial rights.” United States v. Vazquez-
Lebron, 582 F.3d 443, 446 (3d Cir. 2009) (quoting United States v. Olano, 507 U.S. 725,
732 (1993) (internal quotation marks omitted)). An error affects substantial rights if it
altered the outcome of the proceedings before the district court. Id. We will affirm a
sentence despite an incorrect Guidelines calculation if we “conclude on the record as a
whole ... that the error did not affect the district court’s selection of the sentence
imposed.” United States v. Langford, 516 F.3d 205, 215 (3d Cir. 2008). Thus, plain error
analysis consists of three components: (1) the presence of a legal error, (2) that is
obvious from the face of the proceedings, and (3) that has an effect on the outcome of the
proceedings.
Here, the District Court’s mistaken conclusion as to Rose’s offense conduct
Guidelines range does constitute plain error because we are unable to say that the mistake
had no effect on the District Court’s ultimate decision on sentencing. We recognize that
the Court calculated and applied the correct career offender range at the first step of the

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Judge Rendell would hold that, since the District Court calculated the applicable6
Guideline range correctly, there was no procedural error caused by the incorrect reference
to the offense conduct range, and the sentence was “procedurally sound.” However, she
does not disagree with remanding to permit the Court to re-sentence Rose if the mistake
as to the offense conduct range influenced the sentence the Court imposed.
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Gunter analysis. Thus, there was no error with regard to the legally applicable Guidelines
range, as Gunter focuses upon calculation of the range that actually applies to the
defendant. We note that, in so holding, we are liberally interpreting the District Court’s
obligations to calculate the applicable Guidelines range under Gunter, as the District
Court unquestionably erred in identifying the Guidelines range that would have applied
had Rose not qualified as a career offender. The Court was then drawn into a discussion
of the offense conduct range as an alternative basis for considering how to properly
sentence Rose. Indeed, there is some irony here because it is only the District Court’s
solicitude for Rose’s interests that has given him any basis to argue procedural error. Had
the District Court omitted any mention of the offense conduct range, Rose’s sentence
would undisputedly be procedurally sound.6
But the Court did mention the offense conduct range and it did so specifically in
the context of a discussion about alternative bases for coming to a just sentence. Looking
then at the test for plain error that we must apply, the first two steps are essentially
uncontested. The District Court erred in its assessment of the offense conduct range, and
that error is obvious, in the sense that the true offense conduct range is clearly lower than

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Of course, in another important sense, it was not obvious at all, as the silence of7
government’s counsel and the misguided affirmation of defense counsel help
demonstrate. Criminal sentencing can be complex and is nearly always a time when a
multitude of important considerations are actively being addressed by the court and
counsel. In those circumstances, a flaw which is obvious in hindsight may pass
unnoticed. It nevertheless remains an obvious flaw on the face of the record.
14
that cited by the Court. The real dispute is over the third and final step, i.e., whether the7
error had an effect on the outcome of the proceedings.
While the government argues that the Court’s error was “an immaterial slip of the
eye on the sentencing table that could not have affected the sentence imposed,”
(Answering Br. at 41), we cannot be so sure. Again, our precedent tells us that, for an
“error to be harmless, it must be clear that the error did not affect the district court’s
selection of the sentence imposed.” Langford, 516 F.3d at 215. We must “possess a sure
conviction that the error did not prejudice the defendant.” United States v. Zehrbach, 47
F.3d 1252, 1265 (3d Cir.1995) (internal quotation marks and citation omitted). Rather
than having that level of confidence in this case, we have instead a concern that the
District Court may have been using the erroneous offense conduct range as a referent in
its sentencing analysis. That concern is furthered by the Court’s comment, while
imposing sentence, that “had it not been for the career offender provision, ... the sentence
in this case would be significantly lower in terms of the advisory sentencing guideline
range.” (App. at 334.) Under these circumstances, we would be hard-pressed to say that
it is clear the Court’s mistake had no effect on the sentence it gave to Rose.

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It is by no means certain that the District Court would have imposed a different
length of imprisonment had it considered the correct offense conduct range during
sentencing, but it may have. We are thus bound to conclude that the procedural error
identified by Rose rises to the level of plain error. We express no view on whether the
same sentence will be warranted upon resentencing.
III. Conclusion
Because Rose has failed to establish that the government infringed upon his
federal speedy trial guarantees, the judgment of conviction will be affirmed. However,
because the Court committed a plain error at sentencing affecting Rose’s substantial
rights, we will vacate the sentence and remand for further proceedings consistent with
this opinion.

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