                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-9-2008

USA v. Torres
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1696




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Recommended Citation
"USA v. Torres" (2008). 2008 Decisions. Paper 385.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/385


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                                    NOT PRECEDENTIAL
    THE UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 07-1696
                   _____________

          UNITED STATES OF AMERICA

                           v.

                  IVAN TORRES
                       a/k/a
             JOSE DE JESUS-CLAUDIO

                          Ivan Torres,

                            Appellant
                  _______________

    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
                 (D.C. No. 98-cr-0362)
      District Judge: Honorable Louis H. Pollak
                   _______________

      Submitted Under Third Circuit LAR 34.1(a)
                September 26, 2008

Before: BARRY, AMBRO, and JORDAN, Circuit Judges.

               (Filed: October 9, 2008)
                  _______________

             OPINION OF THE COURT
                 _______________
JORDAN, Circuit Judge.

         Pursuant to a plea agreement, Ivan Torres pled guilty to multiple counts of a

superceding indictment, including counts for conspiracy to commit murder in aid of

racketeering in violation of 18 U.S.C. § 1959(a)(5), murder in aid of racketeering in

violation of 18 U.S.C. § 1959(a)(1), murder for hire and aiding and abetting in violation

of 18 U.S.C. § 1958, and possession of a firearm in connection with a crime of violence

in violation of 18 U.S.C. § 1924(c). As a result of his guilty plea and cooperation with

government authorities, Torres received a sentence of 25 years’ imprisonment, a fine, and

five years’ supervised release. On appeal, Torres argues that, because of his substantial

cooperation, the District Court should have imposed a shorter sentence of imprisonment.

Finding no merit in that argument, we will affirm.1

I.       Background

         Because we write only for the parties, we limit our recitation to those facts

pertinent to our resolution of Torres’s appeal. In exchange for a share of $25,000, Torres

agreed to assist several other individuals in murdering Jose Hernandez and Jorge

Martinez, two former members of a drug organization based in Philadelphia. On June 17,

1998, in Puerto Rico, Torres and an associate attempted to murder Hernandez, but,

instead, they mistakenly killed Ricky Guevara-Velez, a friend of Hernandez’s. Torres

drove the vehicle used during the killing, and his associate fired the fatal shots.

     1
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                               2
         After discovering that Hernandez had not been killed, Torres agreed to travel to

Philadelphia and to kill Hernandez there. Along with several co-conspirators, Torres

spent several days in Philadelphia preparing to carry out the killing. During the course of

the conspirators’ preparations, however, the FBI arrested Torres. After Torres was taken

into custody, his co-conspirators were unable to locate Hernandez. On July 12, 1998,

however, they succeeded in shooting and killing Martinez. Luis Garcia, Martinez’s 17-

year-old nephew, was also killed in that shooting.

         After his arrest, and in return for the government’s promise not to seek the death

penalty against him, Torres provided substantial information to the government about the

other members of the conspiracy. He also told the government about his participation in

Velez’s killing. Prior to receiving that information from Torres, the government “knew

nothing about” Velez’s murder. (Appellant App. at 89.) Torres also testified truthfully

and extensively before a grand jury and during the trials of his co-conspirators.

         Because of Torres’s cooperation, the government agreed to move for a downward

departure pursuant to 18 U.S.C. § 3553(e).2 Pursuant to that agreement, the government

recommended a sentence of 25 years’ imprisonment, a substantial reduction from the



  2
      18 U.S.C. § 3553(e) provides in relevant part that:

         Upon motion of the Government, the court shall have the authority to
         impose a sentence below a level established by statute as a minimum
         sentence so as to reflect a defendant’s substantial assistance in the
         investigation or prosecution of another person who has committed an
         offense.

                                               3
otherwise applicable mandatory minimum sentence of life imprisonment. The District

Court accepted the government’s recommendation.

II.    Discussion

       We understand Torres to be raising two distinct challenges to his sentence. First,

he argues that, because of his cooperation with the government, the District Court should

have granted a greater downward departure from his mandatory minimum sentence.

Second, he argues that the District Court abused its discretion by failing to impose a

lesser sentence pursuant to the sentencing factors set out in 18 U.S.C. § 3553(a).

       We reject the first argument because we have consistently declined to review the

extent of a downward departure granted by the District Court. See United States v.

Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006) (explaining that, even post-Booker, we do

not review appeals by defendants challenging the extent of a downward departure).

       We must also reject Torres’s second argument. The Supreme Court has instructed

that, when reviewing the sentence imposed by the District Court, we:

       must first ensure that the district court committed no significant procedural
       error, such as failing to calculate (or improperly calculating) the Guidelines
       range, treating the Guidelines as mandatory, failing to consider the §
       3553(a) factors, selecting a sentence based on clearly erroneous facts, or
       failing to adequately explain the chosen sentence-including an explanation
       for any deviation from the Guidelines range.

Gall v. United States, 128 S.Ct. 586, 597 (2007).

       The Court then further explained that “[a]ssuming that the district court's

sentencing decision is procedurally sound, the appellate court should then consider the

                                             4
substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard.” Id. Thus, in reviewing the defendant’s sentence, we “must give due deference

to the district court's decision that the § 3553(a) factors, on the whole, justify the extent of

the variance. The fact that [we] might reasonably have concluded that a different

sentence was appropriate is insufficient to justify reversal of the district court.” Id.

       Torres does not point to any procedural errors by the District Court. Rather, the

crux of his argument is that, in considering the § 3553(a) factors, the District Court failed

to give sufficient weight to the extent of his cooperation with the government following

his arrest. He also points out that he has been a model prisoner since his arrest.

Notwithstanding Torres’s post-arrest cooperation and conduct, however, the fact remains

that he participated in cold-blooded killings for pecuniary gain. On this record, we cannot

say that the District Court abused its discretion, particularly when the Court relied heavily

on Torres’s cooperation with the government in deciding to depart from the mandatory

minimum sentence of life imprisonment that Torres otherwise faced.

III.   Conclusion

       For the reasons stated, we will affirm the sentence imposed by the District Court.




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