21-562 (L)

United States v. Torres

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 26th day of May, two thousand twenty-two.

PRESENT:

REENA RAGGI,

RICHARD C. WESLEY,

SUSAN L. CARNEY,

Circuit Judges.

_________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. Nos. 21-562, 21-572

JONATHAN TORRES,

Defendant-Appellant,

TERESA TORRES, JOSE SOSTRE, AKA GOLDO,

AKA CHULETTA,

Defendants.*

_________________________________________

FOR APPELLEE: BRIAN P. LEAMING (Sandra S. Glover, on 

the brief), for Leonard C. Boyle, Acting 

* The Clerk of Court is directed to amend the case caption to conform to the above.
 

2

United States Attorney for the District of 

Connecticut, New Haven, CT.

FOR APPELLANT: CHARLES F. WILLSON, Federal Public 

Defender’s Office, District of 

Connecticut, Hartford, CT.

Appeal from a judgment of the United States District Court for the District of 

Connecticut (Thompson, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment entered on March 8, 2021, is 

AFFIRMED.

In November 2020, Jonathan Torres pleaded guilty to distributing fentanyl and 

unlawfully possessing a firearm as a felon. See 21 U.S.C. § 841(a)(1), (b)(1)(C); 18 U.S.C. 

§ 922(g)(1). The written plea agreement anticipated that Torres’s criminal history score 

would be category III, resulting in a Sentencing Guidelines range of 46 to 57 months of 

imprisonment. The presentence report (PSR), however, calculated Torres’s criminal history

category as IV, not III, resulting in a range of 57 to 71 months. Based on that range and on 

its review of the section 3553(a) factors as applied to Torres, the district court imposed a 

principal sentence of 70 months of imprisonment. On appeal, Torres does not dispute that 

the criminal history category anticipated in his plea agreement was incorrect nor argue that 

the district court calculated his actual Guidelines range incorrectly. Rather, he argues that the 

district court abused its discretion when, failing to recognize its authority to depart from the 

properly calculated Guidelines range as recognized in United States v. Fernandez, 877 F.2d 1138

(2d Cir. 1989), it did not impose a sentence within the range set forth in the plea agreement.

Upon review, we identify no error. We assume the parties’ familiarity with the underlying 

facts, procedural history, and arguments on appeal, to which we refer only as necessary to 

explain our decision to affirm.

In Fernandez, this court stated that a sentencing judge “may depart from a Guidelines 

sentence in order to give effect to a plea bargain if such a departure is warranted.” 877 F.2d 
 

3

at 1145.1 But sentencing judges “retain broad discretion to deny . . . requests to depart from 

the Guidelines.” Id. And it is a “well-settled legal principle that the sentencing judge is . . .

not bound by the estimated range in a plea agreement.” United States v. Hamdi, 432 F.3d 115, 

124 (2d Cir. 2005). 

To the extent that Torres urges otherwise by professing that he relied on the pleaagreement range in entering a guilty plea, his argument is defeated by the plea agreement.

The agreement expressly warned that the predicted criminal history category may be 

“recalculate[d]” if the “initial assessment prove[d] inaccurate,” that the anticipated 

Guidelines range was not final, and that the district court would not be bound by the 

calculation in the agreement. Gov’t App. 22–23. Further, during Torres’s plea hearing, the 

district court repeatedly warned him that “until the time of sentencing . . . you cannot know

with certainty what the recommended sentencing range calculated using the Sentencing

Guidelines will be, or know how much weight the Court will put on which particular factors 

under the statute, including the Sentencing Guidelines.” Def. Add. 34. The court also 

explained that, at sentencing, “the probation officer could raise a question and the 

Guidelines calculations could turn out to be different than what you and the government 

have agreed to in the plea agreement.” Id. at 35. Torres explicitly acknowledged during this 

plea hearing that the calculations “could change” and affirmed that he understood the 

possibility, as he had in the written plea agreement. Id.

No more availing is Torres’s argument that the district court abused its discretion by 

affording too much weight to the government’s failure to oppose a sentence within the 

properly calculated range, and (although this is not clear from the briefs) by 

misunderstanding its authority under Fernandez to impose a sentence within the range 

originally agreed to by the government. As the sentencing transcript reflects, the district 

court by no means rested its sentencing decision on the government’s position about the 

properly calculated sentencing range. Rather, it thoroughly explained its decision not to make 

a downward departure or variance (under Fernandez or otherwise), based on its assessment of 

1 In quotations from caselaw and the parties’ briefing, this order omits all internal quotation marks, 

alterations, footnotes, and citations, unless otherwise noted.
 

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the goals of sentencing and the circumstances of Torres’s offense. See Def. Add. 96 (“I think 

[Torres’s] conduct was . . . quite egregious . . . [s]o even if it were a situation where I could 

look at it under Fernandez, it’s not a situation where I would exercise my discretion to depart 

in calculating the advisory range under the Sentencing Guidelines.”). The district court took 

account of Torres’s family background and criminal record and stressed the need for specific 

deterrence in explaining its decision to impose a 70-month sentence. Cf. United States v. Jass, 

569 F.3d 47, 68 (2d Cir. 2009) (holding that even error does not warrant vacatur where 

district court indicated it would impose challenged sentence in any event).2

In sum, although district courts retain discretion to give effect to the Guidelines

range anticipated in a plea agreement by departing downward from a corrected Guidelines 

range in appropriate circumstances, they have no obligation to do so. See Fernandez, 877 F.2d 

at 1145. Here, the district court understood its authority and specifically explained why it saw 

no reason to depart. The record provides no basis for concluding that it abused its discretion 

in imposing the sentence it selected, and we identify no other basis for disturbing the district 

court’s judgment. See United States v. Robinson, 799 F.3d 196, 201 (2d Cir. 2015) (“[A] district 

court’s decision not to depart from the Guidelines is generally unreviewable, unless it 

misunderstood its authority to do so.”).

* * *

We have considered Torres’s remaining arguments and find in them no basis for 

reversal. The judgment of the district court is AFFIRMED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court

2 In light of the district court’s clear statement of reasons for its sentence, we identify no merit in Torres’s 

argument that the goal of sentencing consistency would be undermined by adhering to the increased criminal 

history category brought about only by a one-point change pertaining to a past criminal offense.