United States v. Rolando Otero, A/K/A Rawleigh Otero, 890 F.2d 366 (11th Cir. 1989). · Go Syfert
United States v. Rolando Otero, A/K/A Rawleigh Otero, 890 F.2d 366 (11th Cir. 1989). Cases Citing This Book View Copy Cite
65 citation events (5 in the last 25 years) across 13 distinct courts.
Strongest positive: United States v. Dereck Lane (ca11, 2009-08-07)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 30 distinct citers.
discussed Cited as authority (rule) United States v. Dereck Lane
11th Cir. · 2009 · confidence medium
See e.g., United States v. Martinez, 924 F.2d 209, 210 (11th Cir.1991) (affirming a § 2Dl.l(b)(l) enhancement when the possessor of the firearm was charged as a co-conspirator, even though the defendant claimed he was unaware of the firearm) (per curiam); United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) (affirming a § 2Dl.l(b)(l) enhancement when the defendant’s co-conspirator pleaded guilty to possession of a firearm) (per mriam).
cited Cited as authority (rule) United States v. Matthews
11th Cir. · 1999 · confidence medium
United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) (per curiam).
cited Cited as authority (rule) United States v. Matthews
11th Cir. · 1999 · confidence medium
United States v. Otero, 890 F.2d 366, 367 (11th Cir. 1989) (per curiam).
discussed Cited as authority (rule) ca11 1997
11th Cir. · 1997 · confidence medium
See U.S.S.G. § 2D1.1(b)(1); United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) (per curiam) (discussing conditions for attributing to one conspirator a coconspirator's possession of a firearm) 38 The record shows that the day after McKinnon testified at her sentencing hearing, the prosecution called Detective McConaughey, who testified that he had spoken the previous evening with two witnesses who allegedly told McKinnon that they lied at trial, and they stood by their testimony and denied that they had spoken with her or through anyone else about it.
discussed Cited as authority (rule) United States v. Brazel
11th Cir. · 1997 · confidence medium
See U.S.S.G. § 2D1.1(b)(1); United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) (per curiam) (discussing conditions for attributing to one conspirator a coconspirator's possession of a firearm). .
discussed Cited as authority (rule) United States v. Luiz (2×)
11th Cir. · 1996 · confidence medium
Small v. United States, 508 U.S. 902 , 113 S.Ct. 2326 , 124 L.Ed.2d 239 , judgment reinstated, 1 F.3d 1144 (11th Cir.1993); see also Aduwo, 64 F.3d at 629-30 (gun conspiracy defendant’s base offense level increased under § 2K2.1(c) where co-conspirator possessed a firearm); United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) (drug conspiracy defendant’s base offense level increased under § 2D1.1(b) where co-conspirator possessed a firearm).
cited Cited as authority (rule) United States v. Aduwo
11th Cir. · 1995 · confidence medium
United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989); see also United States v. Nino, 967 F.2d 1508, 1513-15 (11th Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 1432 , 122 L.Ed.2d 799 (1993).
discussed Cited as authority (rule) United States v. Green
unknown court · 1994 · confidence medium
In this circuit, firearm enhancement is appropriate when: “(1) the possessor is charged as a coconspirator; (2) the defendant whose sentence is to be enhanced was a member of conspiracy at the time of firearm possession; and (3) the possession of the firearm was in furtherance of the conspiracy.” United States v. Martinez, 924 F.2d 209, 210 (11th Cir.), cert. denied, — U.S. -, 112 S.Ct. 203 , 116 L.Ed.2d 163 , — U.S. -, 112 S.Ct. 204 , 116 L.Ed.2d 163 (1991) (citing United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989)).
discussed Cited as authority (rule) United States v. Green
unknown court · 1994 · confidence medium
In this circuit, firearm enhancement is appropriate when: "(1) the possessor is charged as a coconspirator; (2) the defendant whose sentence is to be enhanced was a member of conspiracy at the time of firearm possession; and (3) the possession of the firearm was in furtherance of the conspiracy." United States v. Martinez, 924 F.2d 209, 210 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 203 , 116 L.Ed.2d 163 , --- U.S. ----, 112 S.Ct. 204 , 116 L.Ed.2d 163 (1991) (citing United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989)).
discussed Cited as authority (rule) United States v. Shawn Joseph Pessefall, United States of America v. Lawrence Whittaker, United States of America v. Roy Vinson Rickman (2×)
11th Cir. · 1994 · confidence medium
The two level firearm enhancement is proper if the following conditions are met: “(1) the possessor is charged as a co-conspirator; (2) the defendant whose sentence is to be enhanced was a member of the conspiracy at the time of the firearm possession; and (3) the possession of the firearm was in furtherance of the conspiracy.” United States v. Martinez, 924 F.2d *515 209, 210 (11th Cir.1991) (citing United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989)).
cited Cited as authority (rule) United States v. Tiffany Sherrell Stanley, Charles Reynaldo Cameron
11th Cir. · 1994 · confidence medium
United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989). 68 .
discussed Cited as authority (rule) United States v. Rafael Eduardo Freyre-Lazaro, Orestes Miguel Diaz-Gonzalez, and Eufemio Ruben Llerena-Acosta
11th Cir. · 1993 · confidence medium
Pursuant to Guidelines section 2Dl.l(b)(l), a coeonspirator’s possession of a firearm supports the enhancement of a second coconspirator’s offense level if: “(1) the firearm possessor was charged as a coconspirator; (2) the cocon-spirator possessed the firearm in furtherance of the conspiracy; and (3) the coconspirator who is to receive the sentence enhancement was a member of the conspiracy at the time that his coeonspirator possessed the firearm.” United States v. Gates, 967 F.2d 497, 500 (11th Cir.1992) (citing United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989)).
discussed Cited as authority (rule) United States v. David P. Johnson and Ainsley Richards
7th Cir. · 1993 · confidence medium
In the same opinion, when distinguishing a prior case, the court stated “the [United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) ] reasoning avoids artificial sentence enhancement for firearm possession when the weapon is actually or constructively possessed by a person outside the conspiracy (for example, an undercover agent, confidential , informant, or other non-conspirator).” Id. at 1514.
discussed Cited as authority (rule) United States v. William T. Barnes
9th Cir. · 1993 · confidence medium
Similarly, in United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989), the Eleventh Circuit held that the sentence was properly enhanced under section 3Bl.l(a) where the defendant found a seller, set the price of the drugs, and determined a time and a location for the sale.
examined Cited as authority (rule) United States v. Fernando Nino, Gabriel Nino, Najah Dawood Konja, Issam Hermiz, Hector Alvarez, Basil Mezy (4×)
11th Cir. · 1992 · confidence medium
United, States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) (per curiam) (citing United States v. Missick, 875 F.2d 1294, 1301-02 (7th Cir.1989)); see also United States v. Martinez, 924 F.2d 209, 210 (11th Cir.1991) (reiterating Otero test), cert, denied, Duarte v. United States, — U.S.-, 112 S.Ct. 203 , 116 L.Ed.2d 163 (1991).
cited Cited as authority (rule) United States v. Perry Lee Gates, Michael Todd Burley
11th Cir. · 1992 · confidence medium
U.S. v. Otero, 890 F.2d 366, 367 (11th Cir.1989).
discussed Cited as authority (rule) United States v. Scott Tisdale (90-3302), Jerry L. Irby (90-3306), and James E. Fullilove (90-3335) (2×)
6th Cir. · 1992 · signal: cf. · confidence medium
Cf. United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) ("Sentence enhancement for a co-conspirator's firearms possession is proper if three conditions are met: first, the possessor must be charged as a co-conspirator; second, the co-conspirator must be found to have been possessing a firearm in furtherance of the conspiracy; and third, the defendant who is to receive the enhanced sentence must have been a member of the conspiracy at the time of the firearms possession").
discussed Cited as authority (rule) United States v. Vancol
D. Del. · 1991 · confidence medium
See United States v. Turpin, 920 F.2d 1377, 1386 (8th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1428 , 113 L.Ed.2d 480 (1991); United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) (per curiam); United States v. Aguilera-Zapata, 901 F.2d 1209 (5th Cir.1990); cf. United States v. White, 875 F.2d 427, 433 (4th Cir.1990).
cited Cited as authority (rule) United States v. Alberto Martinez, AKA \Tico\" United States of America v. David Kerrick
unknown court · 1991 · confidence medium
United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) (per curiam).
discussed Cited as authority (rule) United States v. Manuel Parrado and Elfobaldo Rodriguez
11th Cir. · 1990 · signal: cf. · confidence medium
Cf. United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) (two point enhancement provision for possession of a firearm or other dangerous weapon appropriate in case of a defendant although he did not know that his co-conspirator possessed the weapon when the possession was in furtherance of the conspiracy).
discussed Cited as authority (rule) United States v. Edmond
D.D.C. · 1990 · signal: cf. · confidence medium
The commentary interpreting this provision explains that “[i]f the conviction is for conspiracy, it includes conduct in furtherance of the conspiracy that was known to or was reasonably foreseeable by the defendant.” U.S. S.G. § lB1.3(a)(1), Application Note 1 (emphasis added); 7 see also United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir.1990) (holding that sentencing court, before giving the defendant a two-level enhancement for possession of a firearm, must determine: (1) whether a coconspirator possessed a firearm during the conspiracy and (2) whether the defendant reasonably could…
discussed Cited "see" United States v. Anibal Rodriguez
3rd Cir. · 2021 · signal: see · confidence high
See United States v. Otero, 890 F.2d 366, 367 (11th Cir. 1989) (holding that a defendant’s sentence enhancement under U.S.S.G. § 2D1.1(b)(1) can be proper for a co- conspirator’s possession of firearms); see also Pinkerton v. United States, 328 U.S. 640, 646-47 (1946) (“[I]n the law of conspiracy . . . the act of one conspirator . . . in furtherance of the conspiracy [can be] attributable to the others.”).
cited Cited "see" United States v. Kelvin Summers
11th Cir. · 2011 · signal: see · confidence high
See United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989).
cited Cited "see" United States v. Abraham David Saftchick
11th Cir. · 2009 · signal: see · confidence high
See United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989).
examined Cited "see" Kilpatrick v. Houston (3×) also: Cited "see, e.g."
N.D. Fla. · 1999 · signal: see · confidence high
See Otero, 890 F.2d at 367 .
cited Cited "see" Browder v. State
Ala. · 1997 · signal: see · confidence high
See United States v. Otero, 890 F.2d 366 (11th Cir.1989); see also United States v. Luiz, 102 F.3d 466 (11th Cir.1996).
discussed Cited "see" United States v. William Kimmons, Howard Small, United States of America v. Bruce Lee Berta (2×)
11th Cir. · 1992 · signal: see · confidence high
See United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) (setting forth criteria for establishing defendant's liability for enhancement under guidelines for firearm possessed by co-defendant).
discussed Cited "see" United States v. Weslie C. Mays
10th Cir. · 1990 · signal: accord · confidence high
Accord United States v. Otero, 890 F.2d 366 (11th Cir.1989) (§ 3Bl.l(c) applicable when the defendant was the individual within a network who located the seller, set the price, and determined the time and location for the sale of the narcotics); United States v. Silverman, 889 F.2d 1531 (6th Cir.1989) (defendant found to be a manager or supervisor upon evidence that the defendant took charge of the sale and exercised dominion over the money garnered from *1504 the cocaine sale); United States v. Vasquez, 874 F.2d 250 (5th Cir.1989) (defendants recruited others to commit crimes, utilized their…
cited Cited "see, e.g." United States v. Novation
11th Cir. · 2001 · signal: see, e.g. · confidence low
See, e.g., United States v. Otero, 890 F.2d 366 (11th Cir.1989).
discussed Cited "see, e.g." United States v. Nicholas Bianco, United States of America v. Daniel Thomas Feeney
1st Cir. · 1991 · signal: compare · confidence low
Compare Garcia, 909 F.2d at 1350 n. 1 (joint venturer "liability for the purpose of sentence enhancement has been dealt with explicitly in the Guidelines.”) (declining to follow United States v. Otero, 890 F.2d 366 (11th Cir.1989), which applied Pinkerton test to enhance defendant’s sentence for codefend-ant’s possession of firearm), with United States v. LaFraugh, 893 F.2d 314, 317 (11th Cir.) (although standards embodied in U.S.S.G. § 1B1.3 do not codify Pinkerton doctrine, they sufficiently approximate it so that enhancement under Pinkerton is proper) cert. denied, -U.S.-, 110 S.Ct. …
UNITED STATES of America, Plaintiff-Appellee,
v.
Rolando OTERO, A/K/A Rawleigh Otero, Defendant-Appellant
89-3077.
Court of Appeals for the Eleventh Circuit.
Dec 11, 1989.
890 F.2d 366
Laurel W. Marc-Charles, Richard and Richard, The Four Ambassadors, Miami, Fla., for defendant-appellant., Robert W. Genzman, U.S. Atty., Dennis I. Moore, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.
Vance, Clark, Edmondson.
Cited by 45 opinions  |  Published
PER CURIAM:

Rolando Otero pleaded guilty to cocaine possession and conspiracy charges. Under the Sentencing Guidelines, Otero’s base offense level was 32 [1] the district court increased Otero’s offense level by two points under Section 2Dl.l(b) of the Guidelines for firearm possession and by two points under Section 3B1.1 for Otero’s aggravating role in the crime. The sentencing judge also reduced Otero’s level by two points because he accepted responsibility for his actions. Otero’s final offense level was therefore 34; the sentence range for this level is 151 to 188 months of incarceration. Otero received the minimum term, 151 months.

First, Otero challenges the two-point enhancement of his sentence for firearm possession. Otero argues that because his co-conspirator Perera possessed the firearm and he, Otero, was unaware of the weapon’s presence during the crime, the enhancement provision is inapplicable. The section provides “If a firearm or other dangerous weapon was possessed during the commission of the [drug offense], increase by 2 levels.” Sentencing Guidelines Section 2Dl.l(b).

Sentence enhancement for a co-conspirator’s firearms possession is proper if three conditions are met: first, the possessor must be charged as a co-conspirator; second, the co-conspirator must be found to have been possessing a firearm in furtherance of the conspiracy; and third, the defendant who is to receive the enhanced sentence must have been a member of the conspiracy at the time of the firearms possession. United States v. Missick, 875 F.2d 1294, 1301-02 (7th Cir.1989) {citing Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)). Ote-ro’s case meets this test: Perera and Otero were charged as co-conspirators; Perera pleaded guilty to possession of a firearm during commission of the drug offense for which Otero was charged; and Otero was a member of the conspiracy when Perera possessed the weapon.

Second, Otero challenges the two-point enhancement of his sentence for his aggravating role in the crime. Guideline Section 3Bl.l(a) provides “If the defendant was an organizer, leader, manager or supervisor in any criminal activity [that was not extensive and involved fewer than five participants,] increase by 2 levels.” Otero found a seller, set the price of the drug, and determined a time and a location for the sale. Because Otero engaged in these activities, we cannot say that the trial court clearly erred in determining that 3Bl.l(a) applied to Otero’s sentence. See United States v. Barreto, 871 F.2d 511 (5th Cir.1989).

Otero bases his last argument on a statement that the sentencing judge made at the sentencing hearing. He argues that the judge believed that she had absolutely no discretion to depart from the sentencing range provided by the Guidelines-in any circumstances whatever-and, thus, her application of the Guidelines was error. See Guidelines Section 5K2.O (downward departure from sentence range within the discretion of the trial judge). She said, "I think a downward departure in this situation would be appealed by the Government, I would expect it, and I would be reversed. I don't think it is a proper basis whatsoever under my interpretation of these Guidelines." We do not understand this statement as a declaration that discretion to depart from the Guideline sentence range is inappropriate in any conceivable case. This statement indicates to us that the judge felt that a downward departure was inappropriate in this case.

AFFIRMED.

1

. Otero pleaded guilty to possessing a kilogram of cocaine and to conspiring to possess with intent to distribute some four kilograms of the drug. Under Guideline Section 2D1.1(a)(3) and the table entry corresponding to 5-14.9 kg. of cocaine, Otero’s base offense level was correctly calculated to be 32.