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United States v. Torres-Rivera

United States Court of Appeals, First Circuit

October 18, 2017

UNITED STATES OF AMERICA, Appellee,
v.
JAVIER TORRES-RIVERA, a/k/a Javo, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Hon. Gustavo A. Gelpí, U.S. District Judge

          Alan Jay Black for appellant.

          Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.

          Before Lynch, Thompson, and Kayatta, Circuit Judges.

          KAYATTA, CIRCUIT JUDGE.

         Defendant Javier Torres-Rivera ("Torres") appeals from the district court's denial of his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). It appears from the record that the defendant's conduct in prison was materially less problematic than the district court may have been led to believe. We therefore vacate the denial of Torres's motion and remand for reconsideration.

         I.

         A.

         On October 3, 2012, Torres pled guilty to one count of a six-count indictment charging him with conspiring and agreeing to possess with intent to distribute various controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 846 and 860. The charges against Torres stemmed from his role as a supplier for a drug trafficking organization in Mayaguez, Puerto Rico. His plea agreement stipulated to a quantity range (between 3.5 and 5 kilograms) and type (cocaine) of controlled substances that he possessed. In light of that stipulation, the plea agreement calculated the base offense level to be thirty. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2D1.1(c)(5) (U.S. Sentencing Comm'n 2012). The plea agreement also calculated the total offense level to be thirty, based on a one-level enhancement because the charge stemmed from distribution of controlled substances in a "protected location, " see id. § 2D1.2(a)(2), a two-level enhancement because the defendant possessed a firearm, see id. § 2D1.1(b)(1), and a three-level reduction because the defendant accepted responsibility, see id. § 3E1.1(a), (b). The plea agreement contained no stipulation as to Torres's criminal history category but calculated the guidelines sentencing range, assuming a criminal history category of one, as 97 to 121 months. Id. ch. 5, pt. A, sentencing table. It provided that the parties were "free to argue for any sentence" between 102 and 121 months.

         The district court held a sentencing hearing on January 23, 2013. During the hearing, the district court adopted the plea agreement's calculations, including its guidelines sentencing range of 97 to 121 months.[1] The government and defense counsel both recommended 102 months, "the lower end" of what the plea agreement allowed the government to argue. The court, after considering the relevant sentencing factors under 18 U.S.C. § 3553(a), "follow[ed] that recommendation" and imposed a sentence of 102 months' imprisonment, to be followed by eight years of supervised release.

         B.

         Over a year after Torres was sentenced, the United States Sentencing Commission voted unanimously to reduce the base offense level by two for most drug trafficking crimes. See U.S.S.G. app. C supp., amend. 782 (Nov. 1, 2014). It later voted to give the amendment retroactive effect. See id. amend. 788. Section 3582(c)(2) of Title 18 creates an exception to the general rule that a federal district court "may not modify a term of imprisonment once it has been imposed, " 18 U.S.C. § 3582(c), by permitting a court to revisit the sentence of a defendant for which a subsequent amendment would have reduced his or her base offense level at sentencing. Id. § 3582(c)(2). Under this exception, "the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission, " id. -- in this case, the policy statement contained in U.S.S.G. § 1B1.10. See United States v. Vaughn, 806 F.3d 640, 643 (1st Cir. 2015). The district court's inquiry involves two steps: It must "first determine whether a reduction is authorized by § 1B1.10 and, if so, the extent of any authorized reduction, " and then "determine whether a reduction is warranted according to the factors set out in 18 U.S.C. § 3553(a)." Id. (citing Dillon v. United States, 560 U.S. 817, 826-27 (2010)).

         Torres filed a motion to reduce his sentence on the basis of Amendment 782, which, if applied, would drop his total offense level to twenty-eight and his guidelines sentencing range to 78 to 97 months. See U.S.S.G. ch. 5, pt. A, sentencing table. The government opposed Torres's motion. In its submission, the government pointed out that Torres had "already benefitted from a stipulated amount of drugs in the Plea Agreement, thereby avoiding enhanced guideline calculations." The government also stated as follows: "[W]hile under custody of the Federal Bureau of Prisons, [Torres] has engaged in actions resulting in disciplinary sanctions, including possession of a hazardous tool and introduction of drugs or alcohol." In a footnote following this statement, the government wrote that "the Court must consider public safety considerations, and may consider information regarding the post-sentencing conduct or situation of the defendant, whether positive or negative."

         The government's description implied, by use of the word "sanctions, " that there were multiple sanctions, when the record indicates that there was only one sanction based on a single incident resulting in two violations of institutional regulations. The assertion also implied, by use of the word "including, " that such sanctions resulted from additional violations beyond those listed. See Include, Black's Law ...


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