United States v. Daniel Emmanuel Torrez ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11512
Non-Argument Calendar
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D.C. Docket No. 9:13-cr-80034-KAM-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL EMMANUEL TORREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 13, 2015)
Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Daniel Emmanuel Torrez appeals his sentence of 150 months’ imprisonment
imposed for his involvement in a drug distribution conspiracy. Torrez raises
several issues on appeal. He argues that the district court erred in imposing a
three-level enhancement based on Torrez’s manager/supervisor role in the
conspiracy and in denying his request for a “safety valve” reduction on the basis
that the role enhancement made him statutorily ineligible for such relief. Torrez
also argues that the district court erred in failing to reduce his offense level for a
minor role and for acceptance of responsibility. Finally, Torrez argues that the
district court procedurally erred by failing to adequately explain its reasoning for
sentencing him to 150 months’ imprisonment. After reviewing the parties’ briefs
and the record on appeal, we find that the district court did not commit reversible
error, and we affirm Torrez’s sentence.
I. Background
Torrez’s charges and subsequent conviction stem from his participation in a
drug conspiracy, in which Torrez would ship powder cocaine and marijuana from
Arizona to one of his codefendants, Antonio Beverly, who resided in Florida.
Beverly also traveled to Arizona to pick up powder cocaine from Torrez. Beverly,
in turn, would provide a portion of the drugs to another codefendant, George
Bivins, Jr. Both Beverly and Bivins would convert portions of the powder cocaine
into crack cocaine, and then redistribute the drugs to their customers and mid-level
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distributors, several of whom also were named as codefendants. In return for the
drug shipments, Torrez would either have cash shipped back to him or have the
money deposited into a number of bank accounts opened by other individuals.
In February 2013, a federal grand jury issued an indictment charging Torrez
with multiple counts pertaining to this drug distribution scheme. Torrez pled guilty
without the benefit of a written plea agreement to: (1) conspiracy to possess with
intent to distribute powder cocaine, in violation of 21 U.S.C. § 846; (2) possession
with intent to distribute powder cocaine, in violation of 21 U.S.C. § 841(a)(1); and
(3) two counts of attempted possession with intent to distribute powder cocaine, in
violation of 21 U.S.C. § 841(a)(1). The district court adjudged Torrez guilty on all
counts. After a two-day sentencing hearing in March 2014, the district court
calculated Torrez’s total offense level as 33 with a criminal history category of I;
Torrez’s guideline range was set at 135 to 168 months’ imprisonment. The district
court determined that a sentence within the guideline range was sufficient but not
greater than necessary to comply with the requirements of 18 U.S.C. § 3553 and
sentenced Torrez to a total of 150 months’ imprisonment. This appeal ensued.
II. Discussion
A. Role Enhancement
On appeal, Torrez argues that the sentencing court erred in calculating his
advisory guideline range by imposing a three-point enhancement for his role as a
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manager or supervisor in the drug conspiracy pursuant to U.S.S.G. § 3B1.1(b). He
contends that, under § 3B1.1(b), he did not qualify as a manager or supervisor in
the conspiracy, but rather had a simple “buyer-seller” relationship with
codefendant Beverly. Moreover, Torrez contends that transcripts of intercepted
phone calls introduced at his sentencing hearing failed to show that he played a
managerial or supervisory role over any other co-conspirators. Rather, Torrez
avers that the communications demonstrated that he had worked “cooperatively”
with other individuals.
We review a district court’s determination of a defendant’s role in an offense
for clear error. United States v. Jennings, 599 F.3d 1241, 1253 (11th Cir. 2010).
Pursuant to the Sentencing Guidelines, a sentencing court may increase an offense
level by three levels in instances where “the defendant was a manager or
supervisor . . . and the criminal activity involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(b). In determining the defendant’s role in
the offense, the district court must consider several factors, such as “the exercise of
decision making authority, the nature of participation in the commission of the
offense, the recruitment of accomplices, . . . [and] the degree of participation in
planning or organizing the offense.” Id. § 3B1.1 cmt. n.4.
It is not required that all of the factors exist in any one case; instead, they are
“merely considerations for the sentencing judge, who makes the factual
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determinations for the applicability of the § 3B1.1 enhancement on a case-by-case
basis.” United States v. Ramirez, 426 F.3d 1344, 1356 (11th Cir. 2005) (per
curiam). Rather, § 3B1.1 “requires the exercise of some authority in the
organization, the exertion of some degree of control, influence, or leadership.”
United States v. Yates, 990 F.2d 1179, 1182 (11th Cir. 1993) (per curiam) (internal
quotation marks omitted). The defendant need only manage or supervise one other
participant for the enhancement to apply. See U.S.S.G. § 3B1.1 cmt. n.2.
Here, while Torrez’s purported “buyer/seller” relationship with codefendant
Beverly might not serve as a sufficient basis for a U.S.S.G. § 3B1.1(b)
enhancement on its own, see United States v. Glinton, 154 F.3d 1245, 1260 (11th
Cir. 1998), Torrez conceded during sentencing that he had “recruited” at least three
other individuals to the conspiracy and “directed” their actions, see U.S.S.G.
§ 3B1.1 cmt. n.4. Also, transcripts of Torrez’s intercepted phone calls presented
by the government at the sentencing hearing demonstrated Torrez’s level of
“control, influence or leadership” over individuals whom he directly commanded
to perform certain actions regarding the drug conspiracy’s shipping process, as
well as his level of influence over unspecified individuals whom he paid for the
use of their bank accounts. See id. § 3B1.1 cmt. n.4; see also Jennings, 599 F.3d at
1253. Thus, the district court did not clearly err in concluding that Torrez qualified
as a manager or supervisor. See Jennings, 599 F.3d at 1253.
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B. “Safety Valve” Relief
Torrez next argues that the district court erred in concluding that he was
statutorily ineligible for “safety valve” relief, pursuant to 18 U.S.C. § 3553(f) and
U.S.S.G. § 5C1.2. He contends that, because the enhancement for his
manager/supervisor role under § 3B1.1(b) is invalid, the denial of his request for
“safety valve” relief also is invalid.
We review a sentencing court’s factual determinations and subsequent denial
of “safety valve” relief for clear error. United States v. Cruz, 106 F.3d 1553, 1557
(11th Cir. 1997). The defendant has the burden of proving that he meets the
eligibility requirements under U.S.S.G. § 5C1.2. Id.
The “safety valve” provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2
enables a district court to sentence a defendant without regard to the statutory
minimum for certain offenses, if five requirements are met. See United States v.
Milkintas, 470 F.3d 1339, 1344–45 (11th Cir. 2006) (per curiam). As relevant
here, the defendant must not have been “an organizer, leader, manager, or
supervisor of others in the offense, as determined under the sentencing guidelines.”
18 U.S.C. § 3553(f)(4); U.S.S.G. § 5C1.2(a)(4). As discussed above, Torrez
qualified as a manager or supervisor under U.S.S.G. § 3B1.1(b). Hence, he does
not meet the fourth requirement for “safety valve” relief, and the court did not err
in denying such relief. See 18 U.S.C. § 3553(f)(4); U.S.S.G. § 5C1.2(a)(4).
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C. Minor-Role Reduction
Torrez also argues on appeal that the sentencing court erred in failing to sua
sponte grant him a minor-role reduction, pursuant to U.S.S.G. § 3B1.2(b). Torrez
asserts that he was entitled to such relief for the following reasons: he never
directly supplied powder cocaine to codefendant Bivins, nor was he involved in the
conversion of powder cocaine to crack cocaine; he was located in Arizona, while
the bulk of Bivins’s operation was in Florida; he was only involved with selling
cocaine to Beverly for about three months; and the majority of the powder cocaine
for which Torrez was held accountable at sentencing never even made it to
codefendants Bivins or Beverly, as the packages were intercepted by law
enforcement.
A district court’s determination of the defendant’s role in the offense
normally is reviewed for clear error. See United States v. Harness, 180 F.3d 1232,
1234 (11th Cir. 1999). However, because Torrez failed to raise any objections on
this issue before the district court, we review for plain error. See id.A defendant may receive a reduction in his offense level if his role in the
offense “makes him substantially less culpable than the average participant.”
U.S.S.G. § 3B1.2 cmt. n.3(A). The defendant bears the burden of proving his
minor role in the offense by a preponderance of the evidence. United States v.
Rodriguez De Varon, 175 F.3d 930, 934 (11th Cir. 1999) (en banc). To receive a
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two-level minor-role reduction, the defendant must show that he is “less culpable
than most other participants, but whose role could not be described as minimal.”
U.S.S.G. § 3B1.2 cmt. n.5.
In determining whether a mitigating-role adjustment applies, the district
court should consider two principles: “first, the defendant’s role in the relevant
conduct for which [he] has been held accountable at sentencing, and, second, [his]
role as compared to that of other participants in [his] relevant conduct.” De Varon,
175 F.3d at 940. “Only if the defendant can establish that [he] played a relatively
minor role in the conduct for which [he] has already been held accountable—not a
minor role in any larger criminal conspiracy—should the district court grant a
downward adjustment for minor role in the offense.” Id. at 944.
Here, Torrez fails to demonstrate that the district court plainly erred in
declining to issue a minor-role reduction sua sponte. With respect to the first
prong of the De Varon test, the district court held Torrez responsible for trafficking
and possessing with intent to distribute 8.74 kilograms of powder cocaine and 10
pounds of marijuana. He conceded to this very behavior when he testified during
his sentencing hearing. Thus, Torrez’s actual conduct was identical to the relevant
conduct for which he was held accountable. See id. at 941 (determining that the
defendant cannot show his role was minor when the relevant conduct attributed to
him is identical to his actual conduct). With respect to the second prong of the De
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Varon test, Torrez has not demonstrated that he is less culpable than “most other
participants” in the underlying criminal conduct; while at least five other
codefendants also supplied powder cocaine to Beverly and Bivins, they provided
significantly smaller amounts of the drugs. See U.S.S.G. § 3B1.2 cmt. n.5; De
Varon, 175 F.3d at 940.
D. Acceptance of Responsibility
Torrez further argues that the district court erred in denying him an
additional third-point reduction in his offense level for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1(b). He received a two-point reduction
for acceptance of responsibility, and he now contends that he met the prerequisite
for the third point, as he had entered a timely guilty plea and had saved the
government the great expense of a trial.
Plain-error review applies here because Torrez did not raise objections
before the district court. See Harness, 180 F.3d at 1234. We reject a defendant’s
claim for an additional one-level reduction pursuant to § 3E1.1(b) where the
government did not file a motion in support of such a reduction. See United States
v. Wade, 458 F.3d 1273, 1282 (11th Cir. 2006); U.S.S.G. § 3E1.1 cmt. n.6
(“Because the [g]overnment is in the best position to determine whether the
defendant has assisted authorities in a manner that avoids preparing for trial, an
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adjustment under subsection (b) may only be granted upon a formal motion by the
[g]overnment at the time of sentencing.”).
Here, as the record demonstrates, the government never filed a formal
motion for a reduction under U.S.S.G. § 3E1.1(b). See Wade, 458 F.3d at 1282.
Indeed, the government argued against any acceptance of responsibility reduction
because Torrez lied under oath during his sentencing hearing. The district court
noted that it could deny Torrez any reduction and could potentially even apply an
enhancement for obstruction, but the court nonetheless gave Torrez a two-point
reduction for acceptance of responsibility since he saved the government from
having to go to trial. Thus, we find that the district court did not err, plainly or
otherwise, in denying Torrez the additional third-point reduction for acceptance of
responsibility.
E. Sentence Explanation
Lastly, Torrez argues that the district court procedurally erred by failing to
adequately explain its reasoning for sentencing him to a total of 150 months’
imprisonment. He contends that the court’s “routine statement” that it had
considered the parties’ arguments and the factors listed under 18 U.S.C. § 3553(a),
without any further explanation, falls short of ensuring that his sentence within the
guideline range was “sufficient, but not greater than necessary.” Torrez also
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asserts that the court failed to explain why it sentenced him above the minimum
required sentence of ten years’ imprisonment.
We review the reasonableness of a sentence using a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007). Since Torrez is challenging the sentence, he bears the burden of
establishing unreasonableness. See United States v. Tome, 611 F.3d 1371, 1378
(11th Cir. 2010). Because Torrez did not object to the procedural reasonableness
of his sentence before the district court, we review for plain error. See United
States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014).
The sentencing court is not required to “incant the specific language used in
the guidelines” or “articulate its consideration of each individual § 3553(a) factor,”
so long as the record reflects that the court considered many of those factors.
United States v. Bonilla, 463 F.3d 1176, 1182 (11th Cir. 2006) (internal quotation
marks omitted). Here, the district court sufficiently satisfied the requirements for a
procedurally reasonable sentence. After holding a comprehensive sentencing
hearing, the court stated that it had considered the parties’ arguments and the
§ 3553(a) factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007)
(“[A]n acknowledgment by the district judge that he or she has considered the
§ 3553(a) factors will suffice.” (internal quotation marks omitted)).
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Furthermore, although the court did not explicitly articulate the reasons for
its choice of sentence, the context of the entire sentencing hearing indicates that the
court did consider several of the § 3553(a) factors. See United States v. Parrado,
911 F.2d 1567, 1573 (11th Cir. 1990) (finding that the transcript of a sentencing
hearing and sentencing court’s closing remarks sufficiently supported the sentence
imposed). Namely, the court reviewed the nature, circumstances, and seriousness
of Torrez’s involvement in the underlying drug conspiracy. See 18 U.S.C.
§ 3553(a)(1), (2). The court also reviewed Torrez’s history and characteristics,
including his lack of a criminal record. See id. § 3553(a)(1). Thus, Torrez has not
met his burden to show that his 150-month sentence was procedurally
unreasonable.
III. Conclusion
Accordingly, after consideration of the parties’ briefs and review of the
record on appeal, we affirm Torrez’s total sentence.
AFFIRMED.
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