                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-17-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3616




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                                                            NOT PRECEDENTIAL

                   THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                  No. 02-3616
                                 ___________

                        UNITED STATES OF AMERICA

                                         v.

                               MICHAEL TORRES,
                            a/k/a Mario Q. Quinnones,
                                  Michael Torres,
                                    Appellant
                                  ___________

           ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF DELAWARE

                 District Judge: The Honorable Gregory M. Sleet
                       (D.C. Criminal No. 01-CR-076-001)
                                  ___________

                    Submitted Under Third Circuit LAR 34.1(a)
                                 July 11, 2003

 BEFORE: NYGAARD and SMITH, Circuit Judges and IRENAS,* Senior District Judge.

                          (Opinion Filed: July 17, 2003)

                                 ___________

                          OPINION OF THE COURT
                         ________________________



_______________
     *Honorable Joseph E. Irenas, Senior United States
District Judge for the District of New Jersey, sitting by
designation.
IRENAS, Senior District Judge:

                                        I.

       Appellant, Michael Torres, pled guilty to a Four Count Information charging him

with crimes relating to a conspiracy to import and possess one thousand (1,000) kilograms

of marijuana with intent to distribute. On August 22, 2002, he was sentenced to 60 months

on each of Counts I, II, and III and 36 months on Count IV, all terms to be served

concurrently.

       The Court granted the motion for downward departure under U.S.S.G. § 5K1.1

(substantial cooperation), but denied downward departure under U.S.S.G. § 5K2.11 (lesser

harms), § 5H1.6 (community ties) and § 5H1.11(civic contributions). Appellant argues

that he also made a separate motion under § 5K2.0 (combination of factors). He reasons

that while the trial judge clearly ruled individually on the § 5K2.11, § 5H1.6, and § 5H1.111

motions, he did not specifically rule on his motion for downward departure based on a

combination of factors, and that this failure requires a remand for resentencing. See,

U.S.S.G. § 5K2.0 2; Koon v. United States, 518 U.S. 81, 116 S. Ct. (1996); U.S. v. Powell,


       1
     Although defendant’s sentencing memorandum of August 16,
2002 (Appellant’s Appendix A-40 et seq.) and his appellate
briefs to this court refer only to § 5H1.6, it is clear that
this motion was made under both § 5H1.6 and § 5H1.11. The
trial judge clearly referenced both sections when considering
and denying this motion. (Appellant’s Appendix A-77)
       2
     U.S.S.G. § 5K2.0 provides that a factor “‘not ordinarily
relevant’” to a sentencing decision may be considered “if such
characteristic or circumstance is present to an unusual degree
and distinguishes the case from the ‘heartland’ of cases
covered by the guidelines.” The Commentary to this rule

                                             -2-
269 F.3d 175, 179 (3d Cir. 2001).

       If the District Court is aware of its right to depart under the applicable guideline

section, but exercised its discretion not to depart, this court lacks jurisdiction to review the

trial court’s decision. United States v. Denardi, 892 F.2d 269 (3d Cir. 1989). However, if

defendant timely moved for a particular departure, the trial court denied such motion, and it

“is impossible to discern from the record” why it denied the motion, the sentencing should

be vacated and the matter remanded to permit the district court to set forth the basis for its

denial. United States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994).

       Appellant also argues that the rule of United States v. Denardi, which forbids

appellate review on the trial court’s discretionary decision denying a legally permissible

downward departure3, is both an unconstitutional violation of due process as well as a

violation of 18 U.S.C. § 3553. However, Appellant concedes that under Third Circuit

Internal Operating Procedure 9.1, this panel has no authority to overrule Dinardi.

       The basic premise of this appeal is that defendant moved separately for a departure

based on the theory that even if his motions under § 5K2.12 and under a combination of


suggests that in an “extraordinary case” a “combination of
such characteristics or circumstances” may satisfy the outside
the heartland requirement “even if none of the characteristics
or circumstances individually distinguishes the case.”
However, the Commentary suggests that such cases “will be
extremely rare.”
       3
     This Court has jurisdiction to determine if a trial
judge’s decision that a particular departure is impermissible
was legally correct. Denardi at p. 271-272. However, in this
matter the trial court specifically found that it had the
right to depart under U.S.S.G. §§ 5K2.11 and 5H1.6.

                                              -3-
§ 5H1.6 and § 5H1.11 were denied, he had made another motion, based on a combination of

circumstances, which was never specifically ruled upon by the trial court. From this

premise defendant argues that he is entitled to a remand so that the judge can rule upon such

motion. Because we hold that no such separate motion was made either in defendant’s

sentencing memorandum or orally on the day of sentencing, this issue cannot be considered

or decided on appeal. See e.g., Srein v. Frankford Trust Company, 323 F.3d 214, 224 (3d

Cir. 2003).

                                              II.

       At the sentencing hearing the trial court totally rejected defendant’s argument that

he was entitled to a lesser harms departure under § 5K2.114 on the basis that he engaged in

the drug transaction to earn the money necessary to keep his restaurant business from

failing. The trial judge strongly refused to accept the notion that a serious criminal act was

a “lesser harm” than the consequences of a defendant’s financial shortfall:

       Moreover, although Mr. Torres may have thought selling marijuana was a lesser
       harm, the Court does not hold a similar view. According to the defendant, the
       greater harm would have been the loss of his restaurant business. That is, Mr. Torres
       has centered his attention solely on the selfish need to protect his economic interest
       through participation in a criminal venture. Rather than pursue alternative legitimate
       means to save the business or simply accept, as many businessmen and women do
       everyday, the failure of the business, the defendant chose to ignore society’s greater


       4
     U.S.S.G. § 5K2.11 permits a downward departure where
either (1) the defendant commits a crime “in order to avoid a
perceived greater harm. . .” or (2) the defendant’s conduct
does “not cause or threaten the harm or evil sought to be
prevented by the law proscribing the offense at issue.” In
this case defendant was relying on the first prong of the
guideline.

                                             -4-
       interest in preventing the distribution of illegal drugs by participating in the
       importation and subsequent distribution of over a ton of marijuana. Thus, the Court
       finds that 5K2.11 is inapplicable in this case and refuses to depart on that ground.
       (Appellant’s Appendix at A-76 to 77)

       Similarly, the trial judge rejected defendant’s claims that his family and civic

associations and activities justified a downward departure under § § 5H1.6 and 5H1.11. He

observed that defendant’s drug dealing put his family and community in jeopardy. The court

went on to note that: “The very nature of the crime, therefore, weighs against finding that

family, community, or civic associations warrant a downward departure. This court

therefore declines to depart on this basis.” (Appellant’s Appendix at A-78).

                                             III.

       Defendant submitted a lengthy sentencing memorandum to the trial court.

(Appellant’s Appendix A-40 et seq.). Part I set forth a detailed history of defendant’s life

with emphasis on his family and civic activities. Next, in Part II, defendant argued for a

minor role adjustment under U.S.S.G. § 3B1.2. Part III, which contains the arguments for

downward departures, is divided into two parts: subpart A., which urges a departure under §

5K1.1 for substantial assistance, and subpart B., which is captioned “Other Grounds for

Departure.” This last subpart is divided into two sections, one captioned “Lesser Harms,”

which deals with § 5K2.11, and the other captioned “Family Ties and Responsibilities, and

Community Ties,” which covers the motion under § 5H1.6 and § 5H1.11.5



       5
     The sentencing memorandum refers only to § 5H1.6, but the
trial judge recognized that the arguments encompassed therein
related also to § 5H1.11.

                                              -5-
       The very last paragraph of the section on family responsibilities and community ties,

which is not separately highlighted or captioned, reads:

       Even if neither of these basis [sic] alone are enough to persuade the Court to grant a
       downward departure to this degree, the defense argues that the combination of the
       above discussed factors clearly takes Mr. Torres’ case out of the heartland. See
       United States v. Bowser, 941 F.2d 1019, 1025 (10th Cir. 1991). . . [which] made
       factors that were “unsuitable as an isolated rationale for a downward departure” into
       factors that could support a valid downward departure. (Appellant’s Appendix A-56).

The previous paragraph of the sentencing memorandum refers to “Mr. Torres strong family

and community ties.”

       In Bowser the Tenth Circuit considered a government appeal of a trial court

decision to downwardly depart on defendant’s criminal history category on the ground that

the guideline calculation overstated the seriousness of that history. U.S.S.G. § 4A1.3. The

trial judge concluded that three factors mandated this result:

       . . .[D]efendant’s two previous convictions (a) were committed when he was merely
       twenty years old, (b) were committed within two months of each other, and (c) were
       punished by concurrent sentences in the Kansas courts.” Bowser at p. 1024.

In upholding the trial judge the appeals court noted that while any one of those factors

might not, standing alone, be sufficient to justify a downward departure, taken together and

considered in combination they made the departure appropriate. This was not a case in

which there were two different theories of departure, each of which was inadequate, but

which in combination justified a departure.

       Defendant’s sentencing memorandum did not cite § 5K2.0 or the application note

thereto which states that in an “extraordinary case” a “combination of . . .characteristics or



                                              -6-
circumstances” might justify a departure. Nothing in that memorandum suggests that

defendant was arguing that the “lesser harms” theory and the family and community ties

theory, when considered jointly were sufficient to justify a downward departure even if

separately they were not. Nor at sentencing did counsel make this argument or suggest that

there was some outstanding motion not ruled upon by the trial judge. It is clear, however,

that the trial judge did consider family ties and community ties jointly in deciding the

departure motion in a manner consistent with Bowser.

                                              IV.

       Appellant’s argument that at sentencing he made a separate motion for a downward

departure based on a combination of the “lesser harms” theory and the family and

community ties theory is not supported by the record. A review of both defendant’s lengthy

sentencing memorandum and the transcript of the sentencing hearing show two separate

downward departure motions each properly ruled upon by the trial judge. The theory relied

upon in this appeal was raised for the first time before this court and, therefore, will not be

considered. Srein at p. 224. For the foregoing reasons, the judgement of the District Court

will be affirmed.




                                              -7-
