                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1548




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"USA v. Torres" (2005). 2005 Decisions. Paper 705.
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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ____________

                                   No. 04-1548
                                  ____________

                        UNITED STATES OF AMERICA

                                          v.

                                 IVAN TORRES,

                                         Appellant


                              ___________________

        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                             Case No. 98-cr-00362-B

                  District Judge: The Honorable Louis H. Pollak
                              ___________________

        Submitted pursuant to Third Circuit L.A.R. 34.1(a) on July 11, 2005

    Before: ALITO and BECKER, Circuit Judges, and SHADUR, District Judge *

                             (Filed: August 12, 2005)

                              ____________________

                           OPINION OF THE COURT
                            ____________________



*   Honorable Milton I. Shadur, United States District Judge for the Northern District
    of Illinois, sitting by designation.
PER CURIAM:

       Due to Ivan Torres’s substantial assistance in the investigation and prosecution of

other criminals, the government filed a motion pursuant to U.S.S.G. § 5K1.1 and 18

U.S.C. § 3553(e) to permit the District Court at sentencing to depart from the otherwise

applicable sentencing guidelines range and the otherwise applicable mandatory minimum

sentence of life imprisonment. On February 23, 2004, the District Court held a

sentencing hearing. At the hearing the District Court granted the government’s

downward departure motion and sentenced Torres to 25 years of imprisonment. Torres

filed a timely notice of appeal to this Court on March 1, 2004.

       All the briefs in this case were drafted before January 2005, when the Supreme

Court issued its opinion in United States v. Booker, 543 U.S. ----, 125 S.Ct. 738 (2005).

In Booker, the Court held that “we must apply today’s holdings – both the Sixth

Amendment holding and our remedial interpretation of the Sentencing Act – to all cases

on direct review.” 125 S.Ct. at 769 (Breyer, J.). Having determined that the sentencing

issues here are best determined by the District Court in the first instance, we vacate the

sentence and remand for re-sentencing in accordance with Booker. See generally United

States v. Davis, 407 F.3d 162 (3d Cir. 2005).

       Because we remand for re-sentencing, we need not address Torres’s argument that

the District Court’s departure should have been greater. We note, however, that this

Court has already held that it lacks jurisdiction to review the extent of a district court’s



                                              -2-
downward departure. See United States v. Khalil, 132 F.3d 897, 898 (3d Cir. 1997)

(“[B]ecause ‘we did not have jurisdiction to entertain an appeal when the district court

refused to exercise its discretion to depart downward from the guidelines,’ it surely

follows that we could not possibly have jurisdiction to hear an appeal by a defendant

where there has been some exercise of the court’s discretion to depart downward.”)

(citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990).

       Accordingly, we affirm Torres’s judgment of conviction but vacate his sentence

and remand for re-sentencing.




                                            -3-
