10-4791-cr
United States v. Torres

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 1st day of February, two thousand twelve

Present:           JOHN M. WALKER, JR.,
                   PIERRE N. LEVAL,
                   ROSEMARY S. POOLER,
                               Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                                       Appellee,

                           -v-                                        10-4791-cr

SERGIO TORRES,


                                                       Defendant-Appellant.1


Appearing for Appellee:          H. Gordon Hall, Robert M. Spector (of counsel), Assistant United
                                 States Attorneys, for David B. Fein, United States Attorney for the
                                 District of Connecticut.

Appearing for Appellant:         Frank J. Riccio II, Frank J. Riccio, Law Offices of Frank J. Riccio
                                 LLC, Bridgeport, C.T.

Appeal from the United States District Court for the District of Connecticut (Thompson, J.).


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         We direct the Clerk of Court to amend the official caption of this case to reflect the
parties' designations herewith.
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellant Sergio Torres pleaded guilty to conspiracy to possess with intent to distribute
five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A). He
was sentenced principally to 235 months’ imprisonment. He appealed, and this court issued a
summary affirmance on October 8, 2004. We withheld the mandate, however, anticipating a
decision in United States v. Booker, 543 U.S. 220 (2005). After our decision in United States v.
Crosby, 397 F.3d 103 (2d Cir. 2005), the government moved for, and this court granted, a
limited remand for the district court to consider the effect, if any, of Booker on its sentence. On
October 25, 2010, the district court held that it would have imposed the same sentence on Torres
had the Guidelines been advisory and so declined to resentence him. Torres now appeals his
sentence, asserting that the district court’s decision to not resentence him was procedurally and
substantively unreasonable, due mainly to its findings as to drug quantity and leadership role in
the offense. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

       “[W]e review a sentence for reasonableness even after a District Court declines to
resentence pursuant to Crosby.” United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007).
Torres argues primarily on appeal that the district court was in error in determining that he was
responsible for between 50 and 150 kilograms of cocaine under U.S.S.G. § 2D1.1(c)(2) and that
he was a leader of a conspiracy involving more than five participants under U.S.S.G. § 3B1.1(a).
Torres has, however, waived any arguments arising from these findings. First, “the law of the
case doctrine ordinarily will bar a defendant from renewing challenges to rulings made by the
sentencing court that were adjudicated by this Court—or that could have been adjudicated by us
had the defendant made them—during the initial appeal that led to the Crosby remand.”
Williams, 475 F.3d at 475 (emphasis added). Torres has had one appeal. The drug quantity
finding and the leadership role were precisely the sort of objections that Torres could have raised
pre-Booker, and his failure to do so means that we will not hear them now.

        Even if Torres had not waived his objections to these findings at the level of our court, he
could not have done so more clearly below. “[W]aiver is the intentional relinquishment or
abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733 (1993) (internal
quotation marks omitted). In our circuit, “[t]he law is well established that if, as a tactical
matter, a party raises no objection to a purported error, such inaction constitutes a true waiver
which will negate even plain error review. A finding of true waiver applies with even more
force when, as in this case, defendants not only failed to object to what they now describe as
error, but they actively solicited it, in order to procure a perceived sentencing benefit.” United
States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007) (internal citations and quotation marks
omitted); see also United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002) (“[W]e
conclude that the law of the case ordinarily prohibits a party, upon resentencing or an appeal
from that resentencing, from raising issues that he or she waived by not litigating them at the
time of the initial sentencing.”). Based on the record before us, it could not be more apparent
that appellant below made an intentional relinquishment or abandonment of any challenges he
might have had to the quantity or role finding. The record reflects that the district court went
above and beyond its obligation to be sure that appellant thoroughly understood what he was
doing when he waived his objection to those findings. The court repeatedly and carefully

                                                 2
explained the findings to appellant, gave him ample time to discuss with his counsel in the
courtroom, made certain at every possible turn that appellant was knowingly and voluntarily
waiving his objections, and even gave an adjournment so that appellant would have sufficient
time to consider his options. It was in this context that appellant and his counsel repeatedly
confirmed to the court that any objection to the findings were waived, and so we find those
arguments waived now. The district court’s original sentence and its determination that it would
not have imposed a materially difference sentence under Booker and Crosby was neither
procedurally nor substantively unreasonable.

         We have examined the remainder of appellant’s arguments and find them to be without
merit.

         Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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