United States v. Torres ( 2000 )


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  •                                                                                                                            Opinions of the United
    2000 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    4-6-2000
    United States v. Torres
    Precedential or Non-Precedential:
    Docket 99-1149
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    Recommended Citation
    "United States v. Torres" (2000). 2000 Decisions. Paper 74.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2000/74
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    Filed April 6, 2000
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 99-1149
    UNITED STATES OF AMERICA
    v.
    JORGE TORRES
    a/k/a
    GEORGE BOYD, JR.
    Jorge Torres, Appellant
    No. 99-1491
    UNITED STATES OF AMERICA
    v.
    JORGE TORRES
    a/k/a
    GEORGE BOYD, JR.
    Jorge Torres, Appellant
    ON APPEAL FROM THE
    UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA
    District Judge: Honorable Eduardo C. Robreno, Jr.
    D.C. Criminal No. 98-cr-00514
    Submitted Under Third Circuit LAR 34.1(a)
    January 10, 2000
    Before: BECKER, Chief Judge, and
    ALITO and BARRY, Circuit Judges.
    (Filed: April 6, 2000)
    Salvatore C. Adamo, Esquire
    100 South Broad Street
    Land Title Building, Suite 1351
    Philadelphia, PA 19110
    Attorney for Appellant
    Joel D. Goldstein, Esquire
    Assistant U.S. Attorney
    Office of United States Attorney
    Suite 1250, 615 Chestnut Street
    Philadelphia, PA 19106
    Attorney for Appellee
    OPINION OF THE COURT
    BARRY, Circuit Judge:
    Appellant Jorge Torres was sentenced on his plea of
    guilty to one count of bank fraud, in violation of 18 U.S.C.
    S 1344. On appeal, he has raised various challenges to the
    sentence that was imposed, most bottomed on his
    contentions that he was sentenced as if the fraud had been
    successful, when it was not, and there was no actual loss.
    We have considered the issues he has raised andfind them
    to be without merit. Because, however, two of the issues
    addressed to Torres' attempted but unsuccessful fraud as
    well as the issue of how explicit a district court must be
    regarding a defendant's ability to pay a fine recur with
    some frequency in the district courts of this Circuit (and, by
    extension, in this Court), we will discuss them, albeit briefly.1
    _________________________________________________________________
    1. Torres also contends that he should not have received a two-level
    increase in the offense level because his offense did not involve "more
    2
    I. Background
    On September 14, 1997, Jorge Torres, identifying himself
    as George Boyd, opened a money market account at the
    Cottman Avenue branch of the Commonwealth Bank in
    Philadelphia, Pennsylvania. He presented photo
    identification displaying a picture of himself and a non-
    issued social security number. Ten days later, Torres, again
    posing as Boyd, returned to the Cottman Avenue branch
    and opened a second money market account in the name of
    Kelly Services, Inc. He presented a license in Boyd's name
    "c/o Kelly" from the Department of Licenses and Inspection
    and deposited a subsequently dishonored $240.65 third
    party check made payable to Kelly Services. On the same
    day, at the Port Richmond branch of the Commonwealth
    Bank, another individual using Boyd's name (surveillance
    cameras indicate that it was not Torres) deposited a stolen
    U.S. Treasury check in the amount of $66,021.94 and
    payable to Kelly Services into the Kelly Services account. An
    investigation subsequently established that Torres'
    fingerprint was on the deposit slip used in that transaction.
    The following day, Torres, yet again claiming to be Boyd,
    appeared at the Castor Avenue branch of the
    Commonwealth Bank and attempted to withdraw $24,900
    from the Kelly Services account. The bank refused to permit
    the withdrawal, advising Torres that the funds were
    unavailable. Either shortly before or shortly thereafter, the
    bank came to suspect that the account was fraudulent. It
    _________________________________________________________________
    than minimal planning." See U.S.S.G.S 2F1.1(b)(2)(A). " ``More than
    minimal planning' means more planning than is typical for commission
    of the offense in a simple form' and is ``deemed present in any case
    involving repeated acts over a period of time, unless it is clear that
    each
    instance was surely opportune.' " U.S.S.G.S 1B1.1, comment (n.1(f)).
    Because generally a finding of more than minimal planning is fact
    specific and because the facts of this case compel the conclusion that
    more than minimal planning was involved, we will not further discuss
    this issue. Nor will we discuss Torres' contention that, because he did
    not profit from the fraud and there was no actual loss, he should have
    but did not receive a downward departure. Where, as here, the District
    Court understood that it had the ability to depart but refused to do so,
    we lack jurisdiction to review that refusal. See United States v.
    McQuilkin, 
    97 F.3d 723
    , 729 (3d Cir. 1996), cert. denied, 
    520 U.S. 1253
    (1997).
    3
    notified the authorities, and Torres was subsequently
    arrested.
    On September 29, 1998, a grand jury in the Eastern
    District of Pennsylvania indicted Torres on one count of
    bank fraud, in violation of 18 U.S.C. S 1344. On November
    17, 1998, Torres pled guilty and a Presentence Investigation
    Report ("PSR") was prepared. The PSR noted that the
    United States Sentencing Guidelines ("U.S.S.G") called for a
    base offense level of six for a violation of 18 U.S.C. S 1344.
    See U.S.S.G. S 2F1.1. Because the attempted loss was
    $66,262.59, i.e. more than $40,000 but less than $70,000,
    the base offense level was increased by five levels pursuant
    to U.S.S.G. S 2F1.1(b)(1)(F). Another two levels were added
    pursuant to U.S.S.G. S 2F1.1(b)(2)(A) because the offense
    involved repeated acts over a period of time, and two levels
    were deducted pursuant to U.S.S.G. S 3E.1.1(a) because
    Torres accepted responsibility for the offense to which he
    pled guilty.
    Based on a total offense level of eleven and a criminal
    history category of I, Torres' guideline range was eight to
    fourteen months imprisonment. At the sentencing hearing
    on February 8, 1999, Torres objected to the five level
    increase for loss in the amount of $66,262.59, contending
    that the correct loss figure should be $24,900 with only a
    four level increase. He argued, as well, that his actions
    constituted an attempt warranting only a three level
    increase pursuant to U.S.S.G. S 2X1.1(b)(1) and did not
    involve repeated acts over a period of time.
    The District Court rejected each of Torres' objections and
    denied his motion for a downward departure. Having ruled
    on the objections, the Court "adopted the recommended
    findings of facts in the presentence investigation report as
    the findings of facts of the Court."
    Sentence was thereafter imposed as follows:
    [T]he defendant, Jorge Torres, is hereby committed to
    the custody of the Bureau of Prisons to be imprisoned
    for a term of 12 months. That sentence shall be a split
    sentence, pursuant to Section 5(c)1.1 of the sentencing
    guidelines. The defendant shall spend six months in
    custody and the balance of the sentence shall be spent
    4
    in a community confinement institution to be
    designated by the Bureau of Prisons.
    Torres was also sentenced to a five year term of supervised
    release and a $5,000 fine. He appealed.
    Torres, still in prison after having served more than seven
    months, filed a "Motion for Clarification of Split Sentence
    and Immediate Release on Home Confinement." He argued,
    not surprisingly and with considerable force, that the
    District Court's remarks at sentencing and the sentence
    imposed clearly indicated that he serve six months in jail
    and six months in community confinement. If that was the
    sentence the Court intended to impose, we note, it did it
    wrong by not sentencing Torres to the custody of the
    Bureau of Prisons for six months rather than twelve, with
    the remaining six months in community confinement as a
    condition of supervised release. Be that as it may, the
    Court denied Torres' motion, stating that it sentenced
    Torres to twelve months imprisonment and only
    recommended to the Bureau of Prisons that the last six
    months be served in a community confinement facility.
    Torres again appealed and, in little more than a passing
    comment, suggests only that he disagrees with the Court's
    decision not to have immediately released him on home
    confinement. Whatever the District Court's intent at
    sentencing may have been, however, the fact remains, and
    fact it be, that both orally and in the written Judgment, the
    Court sentenced Torres to the custody of the Bureau of
    Prisons for twelve months, not six. Given that sentence, we
    will affirm without further discussion the denial of Torres'
    motion and will address only Torres' appeal from the
    Judgment of February 8, 1999.2
    II. Jurisdiction and Standard of Review
    The District Court had jurisdiction pursuant to 18 U.S.C.
    S 3231. We have jurisdiction pursuant 18 U.S.C. S 3742(a)
    and (e) and 28 U.S.C. S 1291. We exercise plenary review of
    the District Court's legal construction of the Sentencing
    _________________________________________________________________
    2. That appeal and the appeal from the Judgment have been
    consolidated by this Court for briefing and disposition.
    5
    Guidelines. See United States v. Medeiros, 
    884 F.2d 75
    , 78
    (3d Cir. 1989). Factual determinations and offense level
    calculations are reviewed under the clearly erroneous
    standard. See United States v. Demes, 
    941 F.2d 220
    (3d
    Cir.) cert. denied, 
    502 U.S. 949
    (1991); United States v.
    Cianscewski, 
    894 F.2d 74
    , 82 (3d Cir. 1990). Where a
    defendant has not raised an issue at sentencing, the
    standard of review is plain error. See Fed. R. Crim. P. 52(b).
    III. Discussion
    A. Amount of Loss
    The District Court found, as had the PSR, that the loss
    was $66,262.59, i.e. the amount of the stolen check
    deposited into the Kelly Services account -- $66,021.94 --
    plus the amount of the bad check used to open the account
    -- $240.65. Torres contends that the loss was $24,900, i.e.
    the amount of the attempted withdrawal. Torres is wrong.
    As this Court has stated on numerous occasions, and as
    the Commentary to U.S.S.G. S 2F1.1 at note 8 provides, the
    Guidelines sweep in not only actual loss but intended loss,
    if that amount can be determined and is higher than actual
    loss:
    This Court's precedents establish that ``fraud loss is, in
    the first instance, the amount of money the victim has
    actually lost.' However, ``if an intended loss that the
    defendant was attempting to inflict can be determined,
    this figure will be used if it is greater than actual loss.'
    United States v. Yeaman, 
    194 F.3d 442
    , 456 (3d Cir.
    1999)(emphasis added) (quoting United States v. Coyle, 
    63 F.3d 1239
    , 1250-51 (3d Cir. 1995) & Application Note 7
    (now Application Note 8) to S U.S.S.G. 2F1.1); see also
    United States v. Holloman, 
    981 F.2d 690
    , 693 (3d Cir.
    1992), cert. denied, 
    509 U.S. 907
    (1993); United States v.
    Schneider, 
    930 F.2d 555
    , 558 (7th Cir. 1991)(" ``loss' within
    the meaning of the Guidelines includes intended, probable,
    or otherwise expected loss, a qualification of vital
    importance in a case such as this where the fraud is
    discovered or otherwise interrupted before the victim has
    been fleeced").
    6
    Torres' activities in connection with the accounts leave
    little or no doubt that the "intended, probable, or otherwise
    expected loss" here was for the full amount fraudulently
    deposited. Within a two week period of time, in two
    accounts neither of which was in Torres' name or the name
    of a company he had anything to do with, three branches
    of the same bank were hit by Torres and a cohort with a
    rubber check, a stolen check, and an attempted withdrawal
    of more than one-third of those fraudulent deposits. It was
    eminently reasonable for the District Court to infer that
    Torres intended to withdraw the balance of the deposits
    before the stolen check surfaced as stolen and would have
    done so had he not been arrested. As the Seventh Circuit
    put it, on similar facts,
    The S 2F1.1 commentary thus anticipates precisely the
    sort of situation presented in the instant case: a
    defendant who clearly intended to inflict a loss on his
    victim much greater than the ``actual' loss time and
    circumstances (i.e., his arrest) permitted him to exact.
    In those situations, the Guidelines make clear that the
    defendant should be held accountable for the full
    amount of the loss he was prepared to inflict.
    United States v. Strozier, 
    981 F.2d 281
    , 285 (7th Cir. 1992).
    The correct measure of loss, therefore, was the entire
    amount that Torres fraudulently deposited in the Kelly
    Services account, regardless of the fact that he was
    prevented from making his first withdrawal. Thus, the
    District Court did not err in upwardly adjusting byfive
    levels for loss greater than $40,000 but less than $70,000,
    pursuant to U.S.S.G. S 2F1.1(b)(1)(F).
    B. Attempt
    Torres argues, next, that even if the loss figure was
    properly calculated, because the withdrawal of the $24,900
    and, thus, the completion of the offense were thwarted, his
    actions constituted only an incomplete attempt to defraud
    the bank of the full amount of the loss, warranting a three
    level reduction under U.S.S.G. S 2X1.1:
    If an attempt, decrease by 3 levels, unless the
    defendant completed all the acts the defendant believed
    7
    necessary for successful completion of the substantive
    offense or the circumstances demonstrate that the
    defendant was about to complete all such acts but for
    apprehension or interruption by some similar event
    beyond the defendant's control.
    U.S.S.G. S 2X1.1(b)(1). See also U.S.C.G. S 2B1.1 comment
    (n.2).
    We cannot ignore the fact that Torres pled guilty to the
    substantive, completed offense of bank fraud, and not to a
    mere attempt. But even aside from that important fact,
    when Torres' argument is considered solely under
    S 2X1.1(b)(1), which is all that he asks this Court to do, the
    simple answer is two-fold: first, as to the $24,900
    attempted withdrawal, Torres had "completed all the acts
    [he] believed necessary"; and, second, as to the balance of
    the fraudulently deposited funds, the "circumstances
    demonstrate" that he "was about to complete all such acts"
    and was unsuccessful only because the bank was fortunate
    enough to suspect fraudulent activity such that Torres was
    subsequently arrested, and not because of any event within
    Torres' control.
    This conclusion is reached along the same lines that we
    followed in determining the amount of the intended loss
    under S 2F1.1, the guideline which concededly governs
    Torres' offense. As the Strozier Court observed, "The
    framers of the Guidelines noted this similarity themselves:
    the critical language concerning the defendant's``intended
    loss' in the S 2F1.1 commentary is preceded by the words,
    ``[c]onsistent with the provisions of S 2X1.1 (Attempt,
    Solicitation or Conspiracy) . . . .' And so the defendant's
    arguments have brought us full circle." 
    Strozier, 981 F.2d at 286
    .
    The District Court did not err in rejecting Torres' request
    for a three level reduction pursuant to U.S.S.G.
    S 2X1.1(b)(1).
    C. Imposition of the $5,000 Fine
    The Guidelines provide that the "court shall impose a fine
    in all cases, except where the defendant establishes that he
    is unable to pay and is not likely to become able to pay any
    8
    fine." U.S.S.G. S 5E1.2(a). The defendant has the burden of
    proving his or her inability to pay. See United States v.
    Carr, 
    25 F.3d 1194
    , 1212 (3d Cir.)(citing U.S.S.G.
    S 5E1.2(a)), cert. denied, 
    513 U.S. 1086
    (1995). A
    sentencing court must consider an array of factors,
    including evidence of the defendant's ability to pay the fine
    and to pay that fine over a period of time, his or her future
    earning capacity, any restitution or reparation that the
    defendant has made or is obligated to make, the burden
    that the fine will impose upon the defendant and others
    who are financially dependent on the defendant, and "any
    other pertinent equitable considerations." U.S.S.G.
    S 5E1.2(d); see also 18 U.S.C. S 3572(a); 18 U.S.C.
    S 3553(a); United States v. Seale, 
    20 F.3d 1279
    , 1284 (3d
    Cir. 1994).
    The Guidelines contain a "fine table" which establishes a
    minimum and maximum fine based on the defendant's
    offense level. Based upon a total offense level of 11, Torres
    was subject to a fine in the range of $2,000 to $1,000,000.
    See U.S.S.G. S 5E1.2 (c)(4). The District Court found that
    this was the appropriate range "provided the defendant has
    the ability to pay the fine." Torres did not object to the
    range or to the facts in the PSR which enabled the
    probation officer to conclude that he could pay afine within
    the appropriate range, arguing through counsel only that
    because "he's obviously not working [and] he has a wife and
    a child to support [, a] fine would be an undue hardship."
    The Court thereafter imposed sentence, including a $5,000
    fine to be paid in equal monthly installments over Torres'
    five year period of supervised release.
    It is important to highlight what Torres does not argue,
    and what he does. He does not argue that the District
    Court did not consider his ability -- or lack thereof -- to
    pay a fine. Nor does he argue that the PSR did not contain
    sufficiently detailed information about his financial
    condition and earning capacity or that any of that
    information was wrong. All he argues, citing that same
    concededly correct information, is that the record before the
    District Court did not establish whether he had the earning
    capacity to pay a fine while on supervised release. Torres is
    wrong.
    9
    Where, as here, a defendant did not at sentencing raise
    the issue of his or her inability to pay, a sentencing court's
    decision to impose a fine and the amount of thefine is
    reviewed for plain error. See Fed. R. Crim. P. 52(b). And
    where, again as here, a defendant, whose burden it was to
    prove his or her inability to pay by a preponderance of the
    evidence, made utterly no showing in that regard and took
    no issue with facts of record showing an ability to pay,
    error sufficient to warrant relief must be very plain, indeed.
    Which brings us to Torres' "the record did not establish"
    argument which we construe as a challenge to the fact that
    the District Court did not make specific findings showing
    that the factors which touch on a defendant's ability to pay
    were considered. It is, of course, a requirement in this
    Circuit that findings be made regarding a defendant's
    ability to pay a fine or that a factual record be created such
    that it can be said that the Court considered the issue. See,
    e.g., 
    Seale, 20 F.3d at 1284
    ; United States v. Demes, 
    941 F.2d 220
    , 223 (3d Cir.) cert. denied, 
    502 U.S. 949
    (1991).
    While Torres is correct that the District Court did not
    explicitly find an ability to pay, it surely implicitly did so
    when it stated that it could impose a fine within the
    guideline range only if Torres had the ability to pay that
    fine, and thereafter imposed a fine; when it indicated in the
    Statement of Reasons section of the Judgment that the fine
    was not "waived or below the guideline range because of
    inability to pay" and the interest requirement on the fine
    was not waived or modified because of an inability to pay;
    and, most importantly, when it adopted the facts set forth
    in the PSR.
    Those facts as relevant to the fine, facts with which
    Torres not only took no issue at sentencing but takes no
    issue before us, clearly indicate that Torres' earning
    capacity upon his release from prison would be more than
    sufficient to pay the fine on an installment basis, pay off
    some or all of his debts, and support his family. Torres,
    twenty-one years old at that time of sentencing, received a
    high school degree in 1995 and satisfied the requirements
    for an associates degree in computer science at a college in
    the Dominican Republic. He reads, writes and speaks four
    languages. He has held several short-term positions, such
    10
    as bartender, car salesman, and credit manager, and has
    served in the U.S. Army Reserves. He is able-bodied and in
    good health, with no history of mental or emotional
    problems or any drug or alcohol abuse.
    As explained in the PSR, if upon release Torres held a
    forty-hour per week job at the minimum wage of $5.15 per
    hour, he would earn $892.66 per month, or $10,712 per
    year. Allowing 80% of this sum for subsistence results in
    $178.50 per month, or $2,142 per year for payment of any
    fine, restitution not being applicable in this case.
    Accordingly, Torres would be capable of paying thefine in
    less than three years while providing subsistence for his
    family in addition to that provided by his wife, who works
    as a waitress. The District Court allowed him to pay the
    fine in monthly installments over a five year period,
    moreover, which provided ample room for Torres to satisfy
    in whole or in part those obligations which had not been
    charged off or classified as bad debts.
    Given that Torres offered nothing beyond counsel's
    fleeting reference to the fact that Torres, not then working
    because he was in prison, "has a wife and a child to
    support," he failed to carry the "burden of persuasion (and,
    logically, the burden of production) . . . on the issue of his
    financial resources and needs." United States v. Voigt, 
    89 F.3d 1050
    , 1093 (3d Cir.), cert. denied, 
    519 U.S. 1047
    (1996) (restitution under Victim and Witness Protection
    Act). That aside, this Court's requirement of specific
    findings will be satisfied if the District Court adopts a PSR
    which contains adequate factual findings with reference to
    an ability to pay such that there can be effective appellate
    review. See United States v. Hallman, 
    23 F.3d 821
    , 827 (3d
    Cir.) cert. denied, 
    513 U.S. 881
    (1994) (rejecting claim that
    the District Court failed to make specific findings with
    reference to ability to pay restitution where it adopted the
    specific findings of the PSR). See also United States v.
    Castner, 
    50 F.3d 1267
    , 1277 (4th Cir. 1995). Because the
    unchallenged facts in the PSR supported the imposition of
    a fine within the guideline range, and because the District
    Court adopted the facts of the PSR, there was no error in
    imposing that fine without specific findings, much less
    plain error.
    11
    IV. Conclusion
    For the reasons given, the judgments of the District
    Court of February 8, 1999 and May 28, 1999 will be
    affirmed.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    12