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United States v. Torres

United States Court of Appeals, Fifth Circuit

May 18, 2017

ROBERTO TORRES, Defendant-Appellant.

         Appeal from the United States District Court for the Western District of Texas

          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.


         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.


         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 ...

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