2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-12-2005

USA v. Torres

Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1548

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Recommended Citation

"USA v. Torres" (2005). 2005 Decisions. Paper 705.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/705
* Honorable Milton I. Shadur, United States District Judge for the Northern District

of Illinois, sitting by designation.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 04-1548

____________

UNITED STATES OF AMERICA

 v.

IVAN TORRES,

 Appellant

___________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Case No. 98-cr-00362-B

District Judge: The Honorable Louis H. Pollak

___________________

Submitted pursuant to Third Circuit L.A.R. 34.1(a) on July 11, 2005 

Before: ALITO and BECKER, Circuit Judges, and SHADUR, District Judge*

(Filed: August 12, 2005)

 ____________________

OPINION OF THE COURT

 ____________________
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PER CURIAM:

Due to Ivan Torres’s substantial assistance in the investigation and prosecution of

other criminals, the government filed a motion pursuant to U.S.S.G. § 5K1.1 and 18

U.S.C. § 3553(e) to permit the District Court at sentencing to depart from the otherwise

applicable sentencing guidelines range and the otherwise applicable mandatory minimum

sentence of life imprisonment. On February 23, 2004, the District Court held a

sentencing hearing. At the hearing the District Court granted the government’s

downward departure motion and sentenced Torres to 25 years of imprisonment. Torres

filed a timely notice of appeal to this Court on March 1, 2004. 

All the briefs in this case were drafted before January 2005, when the Supreme

Court issued its opinion in United States v. Booker, 543 U.S. ----, 125 S.Ct. 738 (2005). 

In Booker, the Court held that “we must apply today’s holdings – both the Sixth

Amendment holding and our remedial interpretation of the Sentencing Act – to all cases

on direct review.” 125 S.Ct. at 769 (Breyer, J.). Having determined that the sentencing

issues here are best determined by the District Court in the first instance, we vacate the

sentence and remand for re-sentencing in accordance with Booker. See generally United

States v. Davis, 407 F.3d 162 (3d Cir. 2005).

Because we remand for re-sentencing, we need not address Torres’s argument that 

the District Court’s departure should have been greater. We note, however, that this

Court has already held that it lacks jurisdiction to review the extent of a district court’s
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downward departure. See United States v. Khalil, 132 F.3d 897, 898 (3d Cir. 1997)

(“[B]ecause ‘we did not have jurisdiction to entertain an appeal when the district court

refused to exercise its discretion to depart downward from the guidelines,’ it surely

follows that we could not possibly have jurisdiction to hear an appeal by a defendant

where there has been some exercise of the court’s discretion to depart downward.”)

(citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990). 

Accordingly, we affirm Torres’s judgment of conviction but vacate his sentence

and remand for re-sentencing.