United States v. Torres-Landrua

2015 | Cited 0 times | First Circuit | April 10, 2015

United States Court of Appeals For the First Circuit

No. 13-1674





Defendant, Appellant.


[Hon. Juan M. Pérez-Giménez, U.S. District Judge]


Torruella, Thompson, and Barron, Circuit Judges.

Linda Backiel, for appellant. Jenifer Yois Hernández-Vega, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, were on brief, for appellee.

April 10, 2015

TORRUELLA, Circuit Judge. Defendant Carlos Torres-

Landrúa ("Torres") was charged with two counts of drug-trafficking

and one count of money laundering. He entered a straight guilty

plea on all counts and was sentenced to a 168-month term of

imprisonment, at the very bottom of his Guidelines imprisonment

range. Torres now appeals, arguing that the district court

violated his due process rights and erred by declining to award him

a minor role adjustment and a downward departure for coercion and

duress. He also challenges the substantive reasonableness of his

sentence. Finding no error or abuse of discretion, we affirm.

I. Facts

Because Torres pled guilty, our discussion of the facts

is drawn from the change-of-plea colloquy, the Presentence Report

("PSR"), and the transcript of the sentencing hearing. See United

States v. Cintrón–Echautegui, 604 F.3d 1 , 2 (1st Cir. 2010).

Torres, together with at least fifteen other individuals,

participated in a drug-trafficking conspiracy that began on or

about the year 2005 and ended in July 2010, and was headed by José

Figueroa-Agosto, a/k/a "Junior Cápsula." The conspiracy transported

large amounts of cocaine via motor vessels from the Dominican

Republic to Puerto Rico. Some of the imported cocaine was sold

locally in Puerto Rico, while the rest was transported to the

continental United States for sale. Some of the drug proceeds were

smuggled into the Dominican Republic on these same vessels.


Torres participated in at least five of these trips. He

smuggled between 150 to 700 kilograms of cocaine per trip and was

paid a total of approximately $350,000 for his smuggling ventures.

Each trip lasted three or four days, during which time he and his

co-conspirators would stay at Casa de Campo, an elite luxury resort

in La Romana, and would be entertained by female strippers before

returning to Puerto Rico with huge shipments of cocaine.

The drug-trafficking conspiracy was paired with a money

laundering conspiracy, which engaged in financial transactions to

promote the drug-trafficking conspiracy and conceal the

illegitimate nature of the drug proceeds. To that end, the

conspiracy used drug proceeds to purchase motor vessels to be used

in the drug smuggling voyages from the Dominican Republic, as well

as real estate, motor vehicles, and businesses. In so doing, the

organization would generally hire individuals with qualifying

credit ratings to act as "straw owners."

Torres was also a member of the money laundering

conspiracy. He had one of the vessels that had been purchased with

drug proceeds transferred to his name. Torres then loaded this

vessel with drugs in the Dominican Republic and smuggled the drugs

into Puerto Rico. Torres was also paid exorbitant amounts of

money, such as $11,000 and $25,000, to simply wash and repair jet

skis in the Dominican Republic. This money, paid in cash, was in

actuality obtained from drug sales.


Torres's biggest and last drug smuggling voyage took

place in January 2008. On that occasion, he smuggled 700 kilograms

of cocaine and was paid $90,000. After this trip, Torres did not

participate in any other trip, nor was he called by any co-

conspirator to participate in any further conspiracy activity.

More than two years later, in November 2010, Torres was

charged, along with others, in a multi-count indictment.

Specifically, Torres was charged with conspiracy to import

controlled substances into the customs territory of the United

States, in violation of 21 U.S.C. § 963 (Count I), conspiracy to

possess with intent to distribute controlled substances, in

violation of 21 U.S.C. § 846 (Count II), and conspiracy to launder

money, in violation of 18 U.S.C. § 1956(h) (Count V). Torres

entered a straight guilty plea as to all counts.

The PSR was disclosed to the parties on September 25,

2012, and the parties were advised that any objection to the facts

and Guidelines applications should be filed in writing within

fourteen days. No objections were filed within the prescribed

deadline. Two months later, however, on November 28, 2012, through

his sentencing memorandum, Torres objected to some sections of the

PSR, including the PSR's guidelines calculation.

The sentencing hearing took place on April 26, 2013.

There, Torres argued that he complied with the requirements for the


"safety valve" sentencing relief1 under United States Sentencing

Guidelines ("U.S.S.G.") § 5C1.2 and was, thus, entitled to a two-

level reduction under U.S.S.G. § 2D1.1(b)(17).2 The district court

granted said two-level reduction. Torres also argued for a minor

role reduction under U.S.S.G. § 3B1.2, alleging that he only had a

minor part in the drug conspiracy, and requested a downward

departure under U.S.S.G. § 5K2.12 for alleged coercion and duress.

The district court denied these other requests.

According to his guilty plea, Torres was responsible for

150 kilograms or more of cocaine, triggering a base offense level

of thirty-eight. A two-level increase was imposed pursuant to

U.S.S.G. § 2S1.1(b)(2)(B), because Torres was convicted under 18

U.S.C. § 1956 (money laundering). A two-level reduction was

granted for his compliance with the "safety valve" sentencing

relief, and an additional three-level reduction was granted for his

acceptance of responsibility. This resulted in a total offense

level of thirty-five. Since Torres had a criminal history category

of I, the applicable advisory Guidelines sentencing range ("GSR")

was 168-210 months of imprisonment, with a fine ranging from

1 The purpose of the "safety valve" provision is to "mitigate the harsh effect of mandatory minimum sentences on first-time, low- level offenders in drug trafficking schemes." United States v. Padilla-Colón, 578 F.3d 23 , 30 (1st Cir. 2009) (internal quotation marks omitted). In order to be eligible for its relief, a defendant must meet five requirements, see 18 U.S.C. § 3553(f)(1)- (5), none of which is at issue here. 2 Codified at U.S.S.G. § 2D1.1(b)(16) at the time of sentencing.


$17,500 to $4,000,000 and a term of supervised release of at least

five years as to Counts I and II, and no more than three years as

to Count V, to be served concurrently. The government requested

that Torres be sentenced to no less than 168 months of

imprisonment, while Torres asked for a below-Guidelines sentence of

less than ten years of imprisonment. Ultimately, the court

sentenced Torres at the bottom of the GSR -- to 168 months of

imprisonment -- followed by supervised release for a term of five

years as to Counts I and II, and three years as to Count V, to be

served concurrently. No fine was imposed. This appeal followed.

II. Discussion of Torres's Claims

A. Torres's Due Process Rights Were Not Violated at His Sentencing Hearing

Torres claims that the district court erred at the

sentencing hearing by not allowing him to present evidence of his

alleged minor role and by excluding his testimony about what he

heard from others in the conspiracy, which he intended to offer as

proof that he was coerced into conspiring with his co-defendants.

He also claims that the district court erred by cross-examining

Torres and inquiring as to whether he faced retaliation after he

left the conspiracy. According to Torres, these errors amounted to

a violation of his due process rights. A careful review of the

record reflects that Torres's allegations lack merit.

At sentencing, when Torres intended to testify about his

role in the drug conspiracy, the district court pointed out that


Torres had not objected to the PSR,3 which had characterized Torres

as a boat captain and had not recommended that Torres be granted

any reduction for his role in the offense. Nevertheless, the court

clearly stated that it had considered Torres's arguments included

in his sentencing memorandum regarding his alleged minor role in

the offense. Moreover, the record shows that his counsel was also

allowed to argue vigorously about his alleged minor role, including

that he was not a boat captain and did not have a boat captain's


The record also reflects that Torres was indeed allowed

to testify regarding the alleged coercion he felt from his co-

defendants. Specifically, Torres testified about his relationship

with Kareem Boschetti ("Boschetti") and how Boschetti first got him

involved with the conspiracy and introduced him to Junior Cápsula.

He also testified about Junior Cápsula's allegedly violent and

aggressive behavior (including the supposed shooting of a truck

driver who had cut him off on the road), as well as his alleged

threats to Boschetti and to another co-conspirator named Diego

Colón. Torres further testified that Junior Cápsula and his

bodyguards would be armed, while no one else was allowed to be

3 See D.P.R. Crim. R. 132(b)(3) (requiring PSR objections to be filed within fourteen days); United States v. Ocasio-Cancel, 727 F.3d 85 , 92 (1st Cir. 2013) ("When a fact is set out in a presentence investigation report and is not the subject of a timely objection, the district court may treat the fact as true for sentencing purposes.").


armed, and that Junior Cápsula would question co-conspirators at

gun-point. Torres also testified that he felt coerced during his

multiple trips to the Dominican Republic where he stayed at a

luxury resort and spent time with strippers that "were brought to

him." According to Torres, despite "enjoy[ing]" the strippers, he

was coerced because he "had to pay" for them, even though he had

not asked for strippers. In addition, Torres was also allowed to

testify about Junior Cápsula's alleged kidnaping of Boschetti

towards the end of his participation in the conspiracy. Finally,

during cross-examination Torres also testified about his decision

not to participate in any other trip. Torres acknowledged that his

decision to no longer participate was communicated to Junior

Cápsula, and that he was never called by any co-conspirator to

participate in another trip after that intention was communicated.

He also admitted not suffering any retaliation for his decision to

not participate further. After Torres testified, his counsel was

allowed to argue on his behalf -- both as to the alleged coercion

and minor role. Counsel continued his argument until he started

repeating himself.

Torres argues that the district court prevented him from

responding to some questions made by his counsel. Although the

record reflects that the government objected to some of the

questions made by Torres's counsel and that some of these


objections were sustained,4 the district court acted within its

discretion in excluding the testimony objected to, since Torres

lacked personal knowledge of it. The excluded testimony constituted

hearsay evidence and Torres's personal speculation, which the court

found unreliable.

Although the Rules of Evidence do not apply at a

sentencing hearing, see United States v. Ocasio-Cancel, 727 F.3d

85 , 91 (1st Cir. 2013), the court must be assured that any evidence

carries "sufficient indicia of reliability to support its probable

accuracy." United States v. Zuleta-Álvarez, 922 F.2d 33 , 36 (1st

Cir. 1990) (internal quotation marks and citation omitted). We

have recognized that the district court has "almost unfettered

discretion in determining what information it will hear and rely

upon in sentencing deliberations," and to decide "not only the

relevance but also the reliability of the sentencing information."

United States v. Geer, 923 F.2d 892 , 897 (1st Cir. 1991) (internal

quotation marks and citations omitted). Given that the statements

excluded were basically rumors,5 the district court did not abuse

its discretion in concluding that they were unreliable and

excluding them.

4 Torres intended to testify about what other people said about Junior Cápsula. 5 Torres's counsel made a proffer of his client's expected testimony.


In conclusion, after carefully reviewing the entire

transcript, it is clear that, through his sentencing memorandum,

his testimony at sentencing, and his counsel's arguments, Torres

effectively communicated the basis for his requests on adjustments

and deviations to the Sentencing Guidelines during his sentencing

hearing. As discussed infra, the district court, however, reached

a different conclusion within its discretion; one that was

expounded and clarified for the record by the district judge.

Finally, contrary to Torres's assertions, the district

court did not err by cross-examining him and inquiring whether he

faced retaliation after he left the drug conspiracy. A judge "has

a perfect right -- albeit a right that should be exercised with

care -- to participate actively" in the proceedings. Logue v.

Dore, 103 F.3d 1040 , 1045 (1st Cir. 1997). It is "beyond cavil

that a trial judge in the federal system retains the common law

power to question witnesses and to analyze, dissect, explain,

summarize, and comment on the evidence." Id. The judge's right to

participate is even greater at sentencing than during the jury

trial, given his role in sentencing. Although, of course, there

are lines a judge should not cross, such as unbalanced

participation, becoming an advocate or otherwise using his judicial

powers to advantage or disadvantage a party unfairly, see id.,

there is no indication in the transcript of Torres's sentencing

hearing that the district court crossed the line here. The court's


questioning was short, neutral, and relevant to the issues. Having

claimed that he participated in the drug conspiracy out of fear of

retaliation, it was within the district judge's power to inquire

from Torres when his participation in the conspiracy had ended and

if he had suffered any kind of retaliation for it. Accordingly,

Torres's due process rights were not violated during his sentencing


B. Denial of Role Reduction

"[W]e rarely reverse a district court's decision

regarding whether to apply a minor role adjustment." United States

v. Bravo, 489 F.3d 1 , 11 (1st Cir. 2007); see also United States v.

Olivero, 552 F.3d 34 , 41 (1st Cir. 2009) ("[B]attles over a

defendant's status . . . will almost always be won or lost in the

district court." (internal quotation marks and citation omitted)).

The Sentencing Guidelines allow a court to award a two-

level reduction to a defendant who was a minor participant in the

criminal activity. U.S.S.G. § 3B1.2. "To qualify as a minor

participant, a defendant must prove that he is both less culpable

than his cohorts in the particular criminal endeavor and less

culpable than the majority of those within the universe of persons

participating in similar crimes." United States v. Trinidad-

Acosta, 773 F.3d 298 , 315-16 (1st Cir. 2014) (quoting United States

v. Santos, 357 F.3d 136 , 142 (1st Cir. 2004)).


Before the district court, Torres argued in his

sentencing memorandum and at his sentencing hearing that he should

be granted a two-level reduction for his alleged minor role in the

drug conspiracy. The district court pointed out that Torres had

not objected to the PSR's characterization of Torres's role.

Nevertheless, it considered Torres's request, but rejected it,

finding that Torres's participation in at least five smuggling

ventures, in which he was entrusted with huge amounts of drugs and

smuggled around 2,000 kilograms of cocaine, and for which he was

paid $350,000, did not make him a minor participant.

On appeal, Torres alleges for the first time that his

minor role should be considered in terms of the money laundering

conspiracy and not of the drug conspiracy. According to Torres,

pursuant to U.S.S.G. § 2S1.1 and its application note 2(C),6 the

court should disregard any activity of the drug conspiracy, even if

it is related to that of the money laundering conspiracy and,

instead, should focus exclusively on the elements and acts of money

laundering included in Count V of the indictment. Following this

6 Application note 2(C) states as follows:

Notwithstanding § 1B1.5(c), in cases in which subsection (a)(1) applies, application of any Chapter Three adjustment shall be determined based on the offense covered by this guideline (i.e., the laundering of criminally derived funds) and not on the underlying offense from which the laundered funds were derived.

U.S.S.G. § 2S1.1 cmt. n.2(C).


line, Torres argues that his participation in the money laundering

conspiracy was minor because he was merely a "straw man," whose

only participation was to allow a vessel's title to be transferred

to his name,7 while other co-conspirators played more active roles,

such as purchasing marine vehicles with drug proceeds.

In response, the government argues that Torres's claim

regarding his alleged minor role in the money laundering is waived

because he did not advance it at the district court. The

government also argues that, even if we were to consider this issue

on the merits, U.S.S.G. § 2S1.1's application note 2(C) does not

abrogate the Guidelines's relevant conduct rules, as set forth in

U.S.S.G. § 1B1.3, which state that all adjustments must be made on

the basis of all relevant conduct, and not solely on the basis of

elements and acts cited in the count of conviction. See U.S.S.G.

§ 3B. Accordingly, the government posits that some of the activity

of the drug conspiracy constitutes conduct relevant to the money

laundering and, thus, should be taken into account in evaluating

Torres's role in the money laundering conspiracy. Furthermore, the

government argues that, even ignoring the relevant conduct rules,

Torres's participation in the money laundering conspiracy

exclusively was not minor8 and that, in any event, he failed to

7 He then loaded this vessel with drugs from the Dominican Republic and smuggled them into Puerto Rico. 8 The government argues that, in addition to Torres's participation in a transaction designed to conceal the ownership of


show that he was less culpable than the majority of those

participating in money laundering offenses, which on its own

justifies the denial of a role reduction.

We agree with the government that Torres's argument is

waived. First, the PSR recommended that no adjustment be granted

for Torres's role in the offense. Torres did not object to this

within the deadline established to do so.9 Then, two months later,

he argued in his sentencing memorandum that he had a minor role in

the drug conspiracy, and all his discussion as to this issue was

centered on the drug conspiracy. At the sentencing hearing, he

once again requested a minor role reduction, exclusively arguing it

as to the drug conspiracy. However, after that proved

unsuccessful, he now turns to a new argument different than the one

he presented below. He has now shifted the focus of his argument

from the drug conspiracy to the money laundering conspiracy and

argues that the court erred in considering the precise evidence

that he asked it to consider. Having switched tactics this way so

late in the game, Torres has waived the argument that he now seeks

to pursue. See United States v. Acosta-Colón, 741 F.3d 179 , 209-10

the boat used by him and his cohorts during Torres's last and most profitable drug smuggling venture, Torres also engaged in money laundering several times by washing and repairing jet skis and vessels for "absurdly high amounts of cash" (such as $11,000 and $25,000), "knowing that the transactions were a facade designed to conceal proceeds from unlawful activity." 9 See footnote 3, supra.


(1st Cir. 2013) ("[A] criminal defendant, unhappy with a judge's

ruling yet persuaded that his original arguments lacked merit,

cannot switch horses mid-stream in hopes of locating a swifter

steed." (quoting United States v. Dietz, 950 F.2d 50 , 55 (1st Cir.

1991) (internal quotation marks omitted))).10

C. Denial of a Downward Departure for Coercion or Duress

Torres next argues that the district court erred in not

granting his request for a downward departure for coercion or


At sentencing, Torres argued that a departure under

U.S.S.G. § 5K2.12 for coercion or duress not amounting to a

10 Even had Torres not waived his argument, and assuming, without deciding, that the focus should have been on the money laundering activity instead of the drug activity, he would not have been entitled to a minor role reduction because he did not show, as was required under Section 3B1.2(b), that he was less culpable than the majority of those convicted of similar crimes. See Trinidad- Acosta, 773 F.3d at 315-16.

It is unclear from the briefs whether Torres is also still pressing his argument that he was entitled to a minor role reduction in his offense level based on his alleged minor role in the drug conspiracy. Nonetheless, out of an abundance of caution, we address it and conclude that he did not show that he was less culpable than the majority of drug trafficking offenders. See id. Moreover, the district court's findings about Torres's role were supported by the record and, thus, were not clearly erroneous. See id. at 315 ("The district court's decision whether to grant a downward adjustment for a minor role is usually a fact-based decision that we review for clear error.") (quoting United States v. Rosa-Carino, 615 F.3d 75 , 81 (1st Cir. 2010)); see also United States v. Espinal-Almeida, 699 F.3d 588 , 619-20 n.30 (1st Cir. 2012) (upholding as a "plausible [sentencing] rationale" the district court's view that when a group of individuals "embark with an adventure" to smuggle 418 kilograms of cocaine into Puerto Rico by boat, "nobody plays a minor role in that boat").


complete defense was warranted because he had been subject to

coercion and duress from Junior Cápsula and co-conspirator

Boschetti. Specifically, he argued that he and Boschetti had been

long-time neighbors and that he saw Boschetti as an older brother.

According to Torres, when he was fifteen or sixteen, he started to

work part-time as a mechanic at Boschetti's garage. After some

time, he became a full-time employee and even got to run the

business. Torres claims that, at some point in time, Boschetti

started taking him on trips to the Dominican Republic to work on

jet skis, for which he was paid exorbitant amounts of cash, which

made him suspicious that something illegal was going on. According

to Torres, while in the Dominican Republic, he asked Boschetti

about what was going on and Boschetti explained to him the illegal

nature of the activities. Boschetti then invited Torres to join

him in a drug smuggling venture to Puerto Rico, which Torres

accepted because he allegedly felt coerced due to his long-time

relationship with Boschetti. Torres also claims that he heard

stories about Junior Cápsula's violent ways of dealing with

situations; that while Torres was in the Dominican Republic, he saw

Junior Cápsula pointing guns at co-conspirators while he questioned

them; and that Torres was threatened that if he withdrew from the

conspiracies, he would suffer retaliation.

At sentencing, Torres claimed that this showed he was

subject to coercion and duress that, although not amounting to a


complete defense, entitled him to a downward departure. The

district court denied his request.

On appeal, Torres claims the district court erred by

allegedly requiring him to prove coercion and duress amounting to

a complete defense.

A showing of serious coercion and duress not amounting to

a complete defense may still play a role at sentencing to permit a

downward departure under the Guidelines.11 See United States v.

Amparo, 961 F.2d 288 , 292 (1st Cir. 1992) ("[T]he type and kind of

evidence necessary to support a downward departure premised on

duress is somewhat less than that necessary to support a defense of

duress at trial."); United States v. Sachdev, 279 F.3d 25 , 28 (1st

11 To that effect, the Guideline addressing potential departures for coercion or duress states:

If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may depart downward. The extent of the decrease ordinarily should depend on the reasonableness of the defendant's actions, on the proportionality of the defendant's actions to the seriousness of coercion, blackmail, or duress involved, and on the extent to which the conduct would have been less harmful under the circumstances as the defendant believed them to be. Ordinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property or similar injury resulting from the unlawful action of a third party or from a natural emergency. Notwithstanding this policy statement, personal financial difficulties and economic pressures upon a trade or business do not warrant a downward departure.

U.S.S.G. § 5K2.12.


Cir. 2002) (noting that "not all types of coercion or duress may be

the basis for a departure"; the duress must be serious). A

defendant must show a subjective belief that a threat has been

made, and the district court must also objectively determine that

a reasonable person in the defendant's position would perceive

there to be a threat amounting to serious coercion or duress.

Sachdev, 279 F.3d at 29. The defendant bears the burden of

proving, by a preponderance of the evidence, his eligibility for a

Guidelines departure. Id. at 28.

Torres frames his claim as one of legal interpretation of

the amount of coercion or duress required under the Guidelines --

namely, that the district court required him to prove a complete

coercion or duress defense to get the departure. But it is clear

from the record that the court did no such thing. Rather, the

district court denied the departure because it found that Torres's

allegations lacked credibility and that the exorbitant amounts of

cash paid to Torres belied his allegations of serious coercion.

Specifically, the district judge stressed that after his last

smuggling venture in January 2008, Torres did not participate in

any other activity and was not even called by any co-conspirator to

make any other trips. Yet, Torres did not suffer any retaliation

whatsoever from Junior Cápsula or anyone else. Consequently, this

argument goes nowhere.


D. Reasonableness of Torres's Sentence

We review the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard. Trinidad-Acosta,

773 F.3d at 309. In conducting this review, we take into account

"the totality of the circumstances." Id. "Generally, no abuse of

discretion is found as long as the court has provided a plausible

explanation, and the overall result is defensible." Id. at 321

(quoting United States v. Martin, 520 F.3d 87 , 96 (1st Cir. 2008))

(internal quotation marks omitted). "There is no single reasonable

sentence in any particular case but, rather, a universe of

reasonable outcomes." United States v. Walker, 665 F.3d 212 , 234

(1st Cir. 2011).

Torres argues that his sentence, at the very bottom of

the advisory GSR, is substantively unreasonable because he was

sentenced to a term equal or longer than some of his more involved

co-conspirators. He claims that the district court "mechanistically

applied the Guidelines as calculated in the PSR without considering

whether their recommended sentence was appropriate . . . given the

circumstances of his involvement," and without considering whether

the sentence was "not greater than necessary."

Torres has failed to carry the "heavy burden" of

challenging as unreasonable a within-the-range sentence. See

Trinidad-Acosta, 773 F.3d at 309 ("[A] defendant who attempts to

brand a within-the-range sentence as unreasonable must carry a


heavy burden." (quoting United States v. Pelletier, 469 F.3d 194 ,

204 (1st Cir. 2006))); United States v. Clogston, 662 F.3d 588 ,

592-93 (1st Cir. 2011) ("Challenging a sentence as substantively

unreasonable is a burdensome task in any case, and one that is even

more burdensome where, as here, the challenged sentence is within

a properly calculated GSR.").

At Torres's sentencing hearing, the district court made

clear that it had reviewed the advisory Guidelines calculations, as

well as all the sentencing factors set forth in 18 U.S.C.

§ 3553(a), including Torres's history and characteristics, the need

to promote respect for the law, to protect the public from further

crimes from Torres, and the need for deterrence and punishment.12

The sentencing court also took into consideration the seriousness

of the offense and Torres's role in it, where "drug proceeds were

taken from Puerto Rico to the Dominican Republic and multi-kilogram

quantities of cocaine were brought from the Dominican Republic to

Puerto Rico, using pleasure boats." After taking into

consideration all the sentencing factors, the sentencing court

concluded that a sentence at the lower end of the GSR was adequate.

Torres's different view about the significance of his role in the

offense, or his own weighing of the other sentencing factors, does

12 The sentencing judge's statement that he considered all the 18 U.S.C. § 3553(a) sentencing factors "is entitled to significant weight." United States v. Santiago-Rivera, 744 F.3d 229 , 233 (1st Cir. 2014).


not mean that the sentencing court's view was unreasonable. See

United States v. Dávila-González, 595 F.3d 42 , 49 (1st Cir. 2010)

("A criminal defendant is entitled to a weighing of the section

3553(a) factors that are relevant to his case, not to a particular

result." (alteration omitted) (internal quotation marks omitted)).

Nor is the sentence unreasonable because the sentencing court

explained some factors more than others. See United States v.

Murphy-Cordero, 715 F.3d 398 , 402 (1st Cir. 2013) ("[A] within-the-

range sentence typically requires a less elaborate explanation than

a variant sentence.").

Furthermore, Torres "is not entitled to a lighter

sentence merely because [some of] his co-defendants received

lighter sentences." Dávila-González, 595 F.3d at 50 (internal

quotation marks and citation omitted). This is especially true

where, as here, Torres failed to show that they were "identically

situated" to him. See United States v. Wallace, 573 F.3d 82 , 97

(1st Cir. 2009). In any event, "[a] district court's consideration

of sentencing disparity aims primarily at the minimization of

disparities among defendants nationally," and not among co-

defendants. Dávila-González, 595 F.3d at 49 (internal quotation

marks and citation omitted).

In conclusion, Torres's sentence, at the very bottom of

his GSR, was within the universe of reasonable outcomes and, thus,

defensible. See Espinal-Almeida, 699 F.3d at 620 (finding that the


sentence at the "absolute bottom [of] the Guidelines range" imposed

on a first time offender convicted of conspiring to smuggle by sea

418 kilograms of cocaine from the Dominican Republic to Puerto

Rico, was defensible, and noting that "it will be the rare case in

which a within-the-range sentence can be found to transgress the

parsimony principle" (internal quotation marks and citation


III. Conclusion

The record reflects that Torres was granted a fair

sentencing hearing, that he was not entitled to a minor role

reduction, that the denial of a downward departure for serious

coercion or duress was within the discretion of the district court,

and that his sentence was reasonable. Accordingly, his sentence is




Back to top