United States v. Torres

856 F.3d 1095

UNITED STATES of America, Plaintiff–Appellee,

v.Roberto TORRES, Defendant–Appellant.

No. 16-50320

United States Court of Appeals, Fifth Circuit.

Filed May 18, 2017

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Donna F. Coltharp, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Before JOLLY, SMITH, and GRAVES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Roberto Torres appeals the denial of a motion for reduction of his sentence. We reverse and remand.

I.

Torres's sentence stems from convictions in 2007: conspiracy to possess with intent to distribute marihuana, to import marihuana,¹ and to launder money instruments. He was sentenced under the 2007 version of the United States Sentencing Guidelines (U.S.S.G.). Because the district court determined that the laundered money was proceeds of a drug conspiracy, the three convictions were grouped together for sentencing per U.S.S.G. § 3D1.2(c). That meant that Torres's base offense level for his money-laundering offense was derived from the total offense level for his drug-trafficking offenses, as U.S.S.G. § 2S1.1(a)(1) commanded.

Torres's total offense level for his drug-trafficking offenses was 39, yielding a guideline sentencing range of 262–327 months. The range for the money-laundering offense was based entirely on the calculations for the drug-trafficking offenses and yielded an identical range. The statutory maximum for a money-laundering offense, however, was 240 months. 18 U.S.C. § 1956(a)(2). Faced with those facts, the court sentenced Torres to 262 months for each drug conviction and 240 months for money-laundering, with the sentences to run concurrently.²

In May 2015, Torres and the government filed an "Agreed Motion for a Sentence Reduction." Under 18 U.S.C. § 3582(c)(2), a court can reduce the sentence of a defendant "who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Amendment 782 to the Sentencing Guidelines, effective November 1, 2014, reduced the quantity-determined offense levels in the drug-trafficking guidelines by two levels.³ See U.S.S.G. App. C, amend. 782. That had the effect of reducing Torres's offense level to 37 under the amended guidelines, which would have yielded an advisory range of 210–262 months. The government and Torres agreed that a sentence of 210 months under the new guidelines would be comparable to his actual sentence of 262 months under the old guidelines.

The district court agreed, at least as regards drug-trafficking. But at the hearing on the motion for reduction, the court was skeptical that it had the power to reduce Torres's sentence for money-laundering based on Amendment 782, noting that the money-laundering offense "[was] really not up for consideration." It could reduce the sentences for drug-trafficking, but the sentence for money-laundering would "stay at 240 months." Torres's counsel concurred with the district court's assessment.

The court denied the motion for reduction, apparently reasoning that denying it entirely would put Torres in a better position to appeal than would a grant of the motion with a reduction to 240 months. Torres appeals; he contends that Amendment 782 lowered his base offense level for both drug-trafficking and money-laundering. The government now urges affirmance despite having joined in the motion for reduction.

II.

The parties contend that we should review the district court's decision for abuse of discretion; indeed, that is the typical standard of review of an order on a Section 3582(c)(2) motion. See United States v. Henderson , 636 F.3d 713, 717 (5th Cir. 2011) (per curiam). Torres, however, raises a new argument on appeal—namely, that Amendment 782 reduces his base offense levels for both the drug and money-laundering offense. We review for plain error any arguments not made to the district court and raised for the first time on appeal.⁴ Indeed, Torres's counsel agreed with the district court that the base offense level for money-laundering could not be reduced.⁵

To reverse on plain error, we must find that three initial requirements are met: (1) "[T]here must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned"; (2) "the legal error must be clear or obvious"; and (3) "the error must have affected the appellant's substantial rights."⁶ If those prerequisites are satisfied, we have discretion to correct the error, but "only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ "⁷

A.

Section 3582(c)(2) permits a district court to reduce a sentence "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently lowered...." A decision on whether to reduce a sentence requires a two-step inquiry; first, "[a] court must ... determine that a reduction is consistent with [U.S.S.G.] § 1B1.10"; if it so determines, it then must examine "whether the authorized reduction is warranted ... according to the factors set forth in [18 U.S.C.] § 3553(a)." Dillon v.United States , 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). "In determining whether, and to what extent, a reduction ... is warranted, the court shall determine the amended guideline range that would have been applicable to the defendant...." U.S.S.G. § 1B1.10(b)(1). In other words, if the range under which the defendant was originally sentenced has been amended, the court should substitute the amended range for the original and leave everything else unchanged.

Torres claims that the district court erred in not recognizing that his money-laundering conviction was subject to the same reduction as were the drug-trafficking offenses. He bases his assertion on the language of the guidelines. Section 2S1.1, which the PSR identified and the district court applied, deals with "[l]aundering of [m]onetary [i]nstruments." It prescribes use of "[t]he offense level for the underlying offense from which the laundered funds were derived, if ... the defendant committed the underlying offense." U.S.S.G. § 2S1.1(a)(1). And that is what the PSR recommended—that Torres's offense level for money-laundering be identical to the level for drug-trafficking.

The significant point is that the money-laundering offense level was entirely dependent on the drug-trafficking level. And neither side disputes that Amendment 782, properly applied to Torres's drug-trafficking offense levels, reduce those levels from 39 to 37. But any reduction or increase in the drug-trafficking level would induce a corresponding change in the money-laundering level; Section 3582(c)(2) refers specifically to sentencing range, not any given offense. Thus, the district court's stated view that its hands were tied with regard to reducing the money-laundering sentence was error. If a reduction was appropriate for the drug-trafficking offense levels, then it was appropriate for money-laundering as well.

Because there was error, we explore whether it was clear or obvious. Puckett , 556 U.S. at 135, 129 S.Ct. 1423. It was. Our conclusion that the district court erred can be reached by "a straightforward application of the guidelines," and any error that can be identified purely by an uncomplicated resort to the language of the guidelines is plain.⁸

B.

We therefore consider whether the error affected Torres's substantial rights. Id. "Where the record is silent as to what the district court might have done had it considered the correct Guidelines range, the court's reliance on an incorrect range in most instances will suffice to show an effect on the defendant's substantial rights." Molina-Martinez , 136 S.Ct. at 1347. There is nothing in the record to suggest that the district court would have denied a sentence reduction if it had been aware of the correct range. Its solicitude toward Torres's counsel (by denying the motion entirely, to make it easier to appeal) suggests that, had it operated under a correct understanding of the guidelines, it would have reduced the sentence. In any event, the default is that a district court's reliance on an incorrect range affects substantial rights.

C.

The remaining question, which is close in this case, is whether we should exercise our discretion to correct the error. The mere fact of plain error that affects substantial rights does not lead to automatic reversal.⁹ Instead, we must conclude that "the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Puckett , 556 U.S. at 135, 129 S.Ct. 1423. "The fourth prong ... is not satisfied simply because the ‘plainly’ erroneous sentencing guideline range yields a longer sentence than the range that, on appeal, we perceive as correct." United States v. Sarabia-Martinez , 779 F.3d 274, 278 (5th Cir. 2015). Our discretion to correct plain errors " ‘should be employed in those circumstances in which a miscarriage of justice would otherwise result.’ "¹⁰

"We sometimes exercise discretion to correct a plain error where the imposed sentence is ‘materially or substantially above the properly calculated range.’ "¹¹ Though we have exercised our discretion to correct those kinds of errors,¹² a large gap between the correct range and the improperly-calculated-yet-relied-upon range does not mandate correction where other factors counsel abstention.¹³ Such factors include the district court's determination that a sentence within the range was insufficient punishment to suit the goals of 18 U.S.C. § 3553(a)¹⁴ and recidivism.¹⁵

This case is closer to Mudekunye and Price than it is to Wikkerink and Davis .¹⁶ The decision to deny a reduction here was based entirely on error with...