                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                            NOT PRECEDENTIAL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.




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