US v. Torres-Oliveras

Filing 920091001

Opinion

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var WPFootnote1 = 'We note that this case was not selected for publication in\
the West Federal Reporter series. Therefore, in keeping with Local\
Rule 32.1, we will consider this opinion "for [its] persuasive\
value but not as binding precedent." \
'

var WPFootnote2 = 'For example, the grand jury indictment indicates that the\
object of the conspiracy was to distribute three types of drugs,\
"cocaine base (crack), cocaine and heroin." In a slightly\
different description of the crime, the plea agreement states that\
Torres-Oliveras agreed to plead guilty to count one of the\
indictment, summarized as "possess[ion] with intent to distribute\
fifty (50) grams or more of cocaine base, \'crack,\' detectable\
amounts of cocaine . . . and detectable amounts of heroin." In yet\
a third iteration of the crime, also in the plea agreement, Torres-Oliveras accepted responsibility for "at least two (2) but less\
than three and one half (3.5) kilograms of cocaine." In addition,\
the change-of-plea hearing included references by the court and the\
parties to several different descriptions of the drug or drugs\
involved in the crime. \
'

var WPFootnote3 = 'In other words, in may be that Torres-Oliveras received a\
lower sentence than he otherwise would have precisely because he\
stipulated to powder rather than crack cocaine. The sentence\
disparity extant at the time suggests this might well have been the\
case. \
'

var WPFootnote4 = 'Torres-Oliveras also devotes one sentence of his brief to an\
additional miscarriage of justice argument -- that the district\
court misled the defendant at sentencing by stating that he could\
file a sentencing reduction motion based on the pending crack\
sentencing guideline amendment after the amendment took effect. \
Due to a failure to explain in any detail how this alleged error\
would work a miscarriage of justice, we deem this argument waived. \
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\
'

var WPFootnote5 = 'In his brief, Torres-Oliveras also suggests that his trial\
counsel was deficient in that he failed to preserve a challenge to\
the sentencing disparities between crack and powder cocaine. This,\
too, is a claim properly raised in a collateral challenge. \
'

var WPFootnote6 = 'Section 3582(c)(2) permits a court to reduce the term of\
imprisonment for a defendant who was sentenced based on a\
"sentencing range that has subsequently been lowered by the\
Sentencing Commission."\
'

var WPFootnote7 = 'Indeed, this court previously determined that "a docketed\
notice of appeal suspends the sentencing court\'s power to modify a\
defendant\'s sentence." United States v. Distasio, 820 F.2d 20, 23\
(1st Cir. 1987). We note, however, that Distasio involved a\
defendant who sought a sentence reduction under Rule 35(b) of the\
Federal Rules of Criminal Procedure, which provides that a court\
may reduce a defendant\'s sentence within one year of sentencing if,\
after sentencing, the defendant "provided substantial assistance in\
investigating or prosecuting another person." See Fed. R. Crim.\
Pro. 35(b). Torres-Oliveras sought a sentencing reduction under a\
separate provision, 18 U.S.C. § 3582(c)(2). \
'

var WPFootnote8 = 'A "Kimbrough claim" arises from the Supreme Court\'s 2007\
holding that because the sentencing guidelines are "effectively\
advisory" a sentencing court "may consider the disparity between\
the Guidelines\' treatment of crack and powder cocaine offenses." \
Kimbrough v. United States, 128 S. Ct. 558, 564 (2007). \
'

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