Filed: Apr. 10, 2015
Latest Update: Mar. 02, 2020
Summary: into Puerto Rico.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.Boschetti. United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st, Cir.
United States Court of Appeals
For the First Circuit
No. 13-1674
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS H. TORRES-LANDRÚA, a/k/a Carlitos,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
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.
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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.
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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
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"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.
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$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
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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
license.
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.").
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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
-8-
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.
-9-
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
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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
hearing.
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)).
-11-
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).
-12-
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
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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.
-14-
(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
duress.
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").
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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
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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.
-17-
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.
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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
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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).
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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
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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
omitted)).
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
affirmed.
Affirmed.
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