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United States of America v. Heriberto Torres

December 16, 2011

UNITED STATES OF AMERICA
v.
HERIBERTO TORRES



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. Introduction

On March 5, 2008, defendant Heriberto Torres was charged in a twenty-five count Second Superseding Indictment with various offenses related to distribution of cocaine and cocaine base ("crack") (referred to as "crack cocaine").*fn1 Pursuant to a plea agreement with the government, defendant pled guilty to all of the charges and stipulated that he was criminally responsible for seventy-two kilograms of cocaine and 500 grams of crack cocaine. He further stipulated that the charges of drug distribution within 1,000 feet of a school involved 1,022.89 grams of cocaine and 373.1 grams of crack cocaine.

Presently before the Court is defendant's Pro Se Motion for Consideration. Defendant seeks resentencing based on certain amendments to the United States Sentencing Guidelines ("USSG") regarding crack cocaine offenses that were promulgated and given retroactive effect after his original sentencing. For the reasons set forth below, defendant's motion is denied.

II. Background

A.Charges and Plea Agreement

Defendant was charged by Second Superseding Indictment on March 5, 2008, with the following offenses: Count One, Conspiracy to Distribute 500 Grams or More of Cocaine and 50 Grams or More of Cocaine Base, in violation of 21 U.S.C. §§ 841(b)(1)(A), (b)(1)(B) (2006) (amended Oct. 15, 2008),*fn2 21 U.S.C. § 846; Counts Two and Twenty-Five, Distribution of Cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); Count Three, Distribution of Cocaine Within 1,000 Feet of a School, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 860(a); Counts Four, Seventeen, Nineteen, and Twenty-Three, Distribution of Fifty Grams or More of Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A); Counts Five, Eighteen, and Twenty, Distribution of Fifty Grams or More of Cocaine Base Within 1,000 Feet of a School, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 860(a); Counts Six, Eight, Ten, Twelve, Fourteen, Sixteen, and Twenty-Four, Distribution of Five Grams or More of Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B); Counts Seven, Nine, Eleven, Thirteen, and Fifteen, Distribution of Five Grams or More of Cocaine Base Within 1,000 Feet of a School, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 860(a); Count Twenty-One, Distribution of 500 Grams or More of Cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B); and Count Twenty-Two, Distribution of 500 Grams or More of Cocaine Within 1,000 Feet of a School, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 860(a).

Pursuant to a plea agreement with the government, defendant agreed to plead guilty to all twenty-five counts of the Second Superseding Indictment. As part of the plea agreement, the parties stipulated as follows:

1. Defendant was criminally responsible for seventy-two kilograms of cocaine and 500 grams of crack cocaine. The offenses involving drug distribution within 1,000 feet of a school*fn3 involved 1,022.89 grams of cocaine and 373.1 grams of crack cocaine.

2. Defendant was an organizer or leader of a criminal activity that involved five or more participants and was otherwise extensive; he was thus subject to a four-level upward adjustment in offense level under USSG § 3B1.1(a).*fn4

3. Defendant was eligible for a three-level downward adjustment in offense level for acceptance of responsibility under USSG §§ 3E1.1(a) and (b).

4. At the time of sentencing, if the government concluded that the defendant rendered substantial assistance in the investigation or prosecution of another individual charged with a crime, the government would move for a downward departure from the guideline sentencing range and mandatory minimum sentence pursuant to USSG § 5K1.1 and 18 U.S.C § 3553(e).

B.Guideline Calculation and Sentence

Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report ("PSR") that contained the sentencing guideline calculation for defendant. All offenses of conviction were grouped together pursuant to USSG § 3D1.2(d). To calculate defendant's base offense level, because the offenses involved both cocaine and crack cocaine, the PSR applied USSG § 2D1.1, comment. (n. 10(D)(i)) (2007 ed.). Under that provision, defendant's offense level was calculated by converting the total amount of controlled substances to an equivalent quantity of marihuana using the Drug Equivalency Table in USSG § 2D1.1, comment. (n. 10(E)) (2007 ed.). Because defendant was convicted of drug trafficking in a protected area, defendant's base offense level was the greater of (1) two, plus the offense level in § 2D1.1 applicable to the quantity of controlled substances involving the protected location, or (2) one, plus the offense level in § 2D1.1 applicable to the total quantity of controlled substances. USSG § 2D1.2(a). In defendant's case, calculation (2) above provided the greater base offense level. All of the offenses involved the equivalent of 24,400 kilograms of marihuana, yielding a base offense level of thirty-seven. See USSG § 2D1.1(c)(2) (2007 ed.).*fn5

From the base offense level of thirty-seven, the PSR subtracted two levels on the erroneous belief that USSG § 2D1.1, comment. (n. 10(D)(i)), applied to defendant.*fn6 The offense level increased by four levels due to the leadership enhancement, see USSG § 3B1.1(a), and decreased by three levels for acceptance of responsibility, see USSG §§ 3E1.1(a) and (b). The resulting offense level was thirty-six.*fn7 Defendant's criminal history category was I, which, combined with an offense level of thirty-six, produced a guideline range of 188 to 235 months.*fn8

See USSG ch. 5 pt. A.

At sentencing on November 6, 2009, the Court adopted the guideline calculations in the PSR. The government moved for a downward departure from the applicable guideline range and mandatory minimum sentences based on defendant's substantial assistance, pursuant to USSG § 5K1.1 and 18 U.S.C § 3553(e). The Court imposed a sentence of sixty ...


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