USA v. Francisco Torres

Filing

Opinion issued by court as to Appellant Francisco Torres. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 02/03/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11066
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20679-KMW-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO TORRES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 3, 2017)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:

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Francisco Torres appeals his 214-month sentence of imprisonment after
pleading guilty to carrying a firearm in relation to a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A)(i). Torres argues that his sentence is both
procedurally and substantively unreasonable. In particular, Torres contends that
the 214-month sentence is beyond what was necessary to adequately deter criminal
conduct and that a substantially shorter sentence was warranted in light of his
history and characteristics, including his rough upbringing, longstanding problems
with drug and alcohol addiction, and acceptance of responsibility. After careful
review, we affirm.
We review the reasonableness of a sentence under a deferential abuse-ofdiscretion standard. United States v. Brown, 772 F.3d 1262, 1266 (11th Cir. 2014).
The district court must impose a procedurally and substantively reasonable
sentence. United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). In
reviewing for procedural reasonableness, we make sure that the court properly
calculated the guideline range, treated the guidelines as advisory and not
mandatory, considered the 18 U.S.C. § 3553(a) sentencing factors, did not rely on
clearly erroneous facts, and adequately explained the chosen sentence. Gall v.
United States, 552 U.S. 38, 51 (2007). Our review for substantive reasonableness
“involves examining the totality of the circumstances, including an inquiry into

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whether the statutory factors in § 3553(a) support the sentence in question.”
Gonzalez, 550 F.3d at 1324.
The district court is charged with selecting a sentence that is “sufficient, but
not greater than necessary, to comply with the purposes” of sentencing listed in
§ 3553(a)(2). 18 U.S.C. § 3553(a). These purposes are retribution (“to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense”), deterrence (“to afford adequate deterrence to
criminal conduct”), incapacitation (“to protect the public from further crimes of the
defendant”), and rehabilitation (“to provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment in the most
effective manner”). See id. § 3553(a)(2)(A)–(D). The court must also consider,
among other factors, the nature and circumstances of the offense, the history and
characteristics of the defendant, the applicable guideline range, any relevant policy
statements from the Sentencing Commission, and the need to avoid unwarranted
sentencing disparities. See id. § 3553(a)(1)–(7).
To arrive at an appropriate sentence, the district court must correctly
calculate the guideline range, consider the § 3553 factors, and “make an
individualized assessment based on the facts presented.” Brown, 772 F.3d at 1266
(internal quotation marks omitted). The court may, in its discretion, give greater

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weight to some factors over others. United States v. Rosales-Bruno, 789 F.3d
1249, 1254 (11th Cir. 2015).
After deciding on an appropriate sentence, the district court must “state in
open court the reasons for its imposition of the particular sentence.” 18 U.S.C.
§ 3553(c). In doing so, the court “should set forth enough to satisfy the appellate
court that [it] has considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 357 (2007). We do not require a sentencing court to explicitly discuss
each § 3553(a) factor, and it is generally sufficient for the court to explicitly
acknowledge that is has considered both the parties’ arguments and the § 3553(a)
factors. United States v. Scott, 426 F.3d 1324, 1330 (11th Cir. 2005). In a
conceptually simple case where “the record makes clear that the sentencing judge
considered the evidence and arguments,” even a very brief statement of reasons is
legally sufficient. Rita, 551 U.S. at 358–59.
The deference we accord to the district courts’ sentencing decisions is
“substantial,” but not unlimited. See Rosales-Bruno, 789 F.3d at 1254–56. A
court may abuse its considerable discretion by failing to afford consideration to
relevant factors that were due significant weight, giving significant weight to
improper or irrelevant factors, or committing a clear error of judgment in weighing
the proper factors. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en
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banc); see also United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006)
(stating that a district court’s unjustified reliance upon any one factor to the
exclusion of other factors indicates an unreasonable sentence). In general, we will
vacate a sentence only if we are left with a definite and firm conviction that the
court chose “a sentence that lies outside the range of reasonable sentences dictated
by the facts of the case.” Irey, 612 F.3d at 1190 (quotation marks omitted).
Here, Torres’s sentence was both procedurally and substantively reasonable.
Torres argues that the district court failed to give an adequate reason that could
justify the 214-month sentence imposed, but the record shows otherwise. Torres
premises his argument on his belief that the guideline range of 262 to 327 months
of imprisonment, though correctly calculated, was unreasonable as applied to him.
He asserts that the range overstates the seriousness of his criminal history because
he “barely qualified for the career offender enhancement,” which was based on two
convictions for controlled-substance offenses, and that his guideline range would
have been 60 months without the enhancement. 1
The district court, however, considered Torres’s arguments on this point and
simply disagreed, providing a reasonable explanation for why it found the career1

The Probation Office issued a draft presentence investigation report recommending a
range at the statutory minimum of 60 months of imprisonment. Soon after, the government
notified Probation of a prior conviction which had been omitted from the draft report and which
qualified Torres for the career-offender enhancement, as his counsel conceded at sentencing.
The final presentence investigation report reflects the career-offender range above, which was
derived from U.S.S.G. § 4B1.1(c)(1) and (3).
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offender-enhanced range appropriate in this case.

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The court appears to have

agreed with Torres on the general proposition that the enhanced range was
excessive for someone with a history of only drug crimes or non-violent conduct.
But the court reasonably concluded that Torres’s case was distinguishable in light
of his history of gun possession and violent conduct. Citing undisputed statements
in the presentence investigation report (“PSR”), the court noted that Torres had two
prior convictions for unlawful firearms possession as well as a number of arrests
for violent conduct, including striking a victim with a hammer, threatening to kill
his mother, and grabbing his girlfriend by the throat and punching her. Although
these violent incidents did not lead to convictions, the court was permitted to rely
on these undisputed facts at sentencing. See United States v. Lopez-Garcia, 565
F.3d 1306, 1323 (11th Cir. 2009) (stating that the failure to object to allegations of
fact in the PSR admits those facts for sentencing purposes). In light of these
specific facts, the district court reasonably concluded that the career-offender range
was appropriate in this case.
At the same time, the district court was not unsympathetic to Torres’s
arguments in mitigation. Indeed, after hearing Torres’s arguments at sentencing,
the court granted a “modest” downward variance from the guideline range based
on Torres’s long history with drugs and what the court described as de minimis
drug offenses in his criminal history.

Thus, the record shows that the court
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considered these mitigating factors, in addition to the aggravating factors discussed
above. The weight to be given the § 3553(a) factors, whether great or slight, was a
matter for the district court, and Torres has not shown that the court imposed a
sentence outside the range of reasonable sentences based on the facts of this case.
See Irey, 612 F.3d at 1190; Rosales-Bruno, 789 F.3d at 1254.
Finally, we note that the 214-month sentence fell below the guideline range
and well below the statutory maximum of life imprisonment. These facts also
indicate that the sentence imposed was not unreasonable. See Gonzalez, 550 F.3d
at 1324 (stating that we usually expect sentences within the guideline range to be
reasonable, and relying on the fact that the defendant’s sentence was “well below”
the statutory maximum in concluding that the sentence was reasonable).
For these reasons, we affirm the sentence as both procedurally and
substantively reasonable.
AFFIRMED.

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