United States v. Torres , 159 F. App'x 380 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-15-2005
USA v. Torres
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3492
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"USA v. Torres" (2005). 2005 Decisions. Paper 109.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3492
UNITED STATES OF AMERICA
v.
WILSON TORRES,
Appellant
On Appeal From the United States
District Court
For the District of New Jersey
(D.C. Crim. Action No. 98-cr-00105-3)
District Judge: Hon. Joseph H. Rodriguez
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 13, 2005
BEFORE: SLOVITER, SMITH and STAPLETON,
Circuit Judges
(Opinion Filed December 15, 2005)
OPINION OF THE COURT
STAPLETON, Circuit Judge:
I.
Appellant Wilson Torres pled guilty to conspiring to distribute cocaine in violation
of 21 U.S.C. § 846, a crime which carries a 10 year mandatory minimum sentence and a
maximum sentence of life imprisonment. His plea agreement provided in part as follows:
Further, if Wilson Torres fully complies with this agreement and, prior to
his sentencing, provides substantial assistance in the investigation or
prosecution of one or more persons who have committed offenses, this
Office: (1) will move the sentencing judge, pursuant to Section 5K1.1 of
the Sentencing Guidelines, to depart from the otherwise applicable
guideline range; and (2) may move the sentencing judge, pursuant to 18
U.S.C. § 3553(e), to depart from any applicable statutory minimum
sentence.
App. at 51 (emphasis supplied).
The government moved for a downward departure of 216 months pursuant to §
5K1.1. It did not make an application under 18 U.S.C. § 3553(e) so that less than the
mandatory minimum sentence might be imposed. The District Court found that this was
consistent with the plea agreement and granted a downward departure of 216 months
under § 5K1.1. The resulting sentence was 144 months of imprisonment.
II.
2
Contrary to Torres’ position on appeal, the government did not breach its plea
agreement. It committed itself to move under § 5K1.1 if Torres provided substantial
assistance. In contrast, it promised only that it “may” move under § 3553(e). Moreover,
it reserved complete discretion to itself to evaluate Torres’ assistance. The “will”/ “may”
contrast and reservation of discretion clause here distinguishes this case from United
States v. Hernandez, 17 F.3d 78 (5th Cir. 1993). Accordingly, the failure of the
government to file an application under § 3553 entitles Torres to no relief.1
III.
Torres is also not entitled to a remand for resentencing under United States v.
Booker, 125 S. Ct. 738 (2005). His sentence was not enhanced based on any facts not
stipulated to in the plea agreement2 and the District Court, after reviewing Blakely v.
Washington, 124 S. Ct. 2531 (2004), stated as follows:
I will say that even if the Guidelines were [not] to apply, that looking at
them and taking guidance from the studies that support their structure, that I
feel that in the exercise of my discretion under 5K1.1 that I feel that there
would be no violence done to the concept of whether Blakely applies or
does not apply. Looking at it as guidance, I don’t see that we have any
conflict with respect to what my individual judgment would be in this case.
S.App. at 43 (emphasis added).
Despite the general presumption of prejudice in cases where the District Court
1
Torres has tendered no evidence from which an inference of bad faith on the part of
the government could be inferred.
2
The fact that the District Court may have relied on its own fact finding in
downwardly departing below the Guideline range is not material under Booker. See
Booker, 125 S. Ct. at 756.
3
treated the Guidelines as mandatory, United States v. Davis, 407 F.3d 162 (3d Cir. 2005)
(en banc), “this is an exceptional case where the record contains clear and specific
evidence that the district court would not have sentenced [defendant] to a lower sentence
under an advisory Guidelines regime.” United States v. Webb, 403 F.3d 373, 382-83 (6th
Cir. 2005). See also United States v. Hill, 411 F.3d 425 (3d Cir. 2005) (where a district
court “clearly indicates that an alternative sentence would be identical to the sentence
imposed under the Guidelines, any error that may attach to a defendant’s sentence under
Booker is harmless.”).
III.
The judgment of the District Court will be affirmed.
4