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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 22-14051-CR-CANNON/MAYNARD 

UNITED STATES OF AMERICA 

v. 

CARLOIS ALEXIS TORRES, 

 

 Defendant. 

___________________________________/ 

UNITED STATES’ RESPONSE TO DEFENDANT’S MOTION FOR DOWNWARD 

VARIANCE 

 The United States of America, by and through the undersigned Assistant United States 

Attorney, hereby responds to the motion for downward variance filed by the defendant, Carlos 

Alexis Torres (“Torres”). The United States respectfully submits a downward variance is not 

warranted, and that a sentence of 57 months’ imprisonment, which is at the top of Torres’ advisory 

guideline range, is sufficient, but not greater than necessary, to reflect the nature and circumstances 

and seriousness of the offense, the history and characteristics of the defendant, the need to promote 

respect for the law, provide just punishment, afford adequate specific and general deterrence, and 

protect the public from further crimes of the defendant. 

BACKGROUND 

On August 25, 2022, a federal grand jury in the Southern District of Florida returned an 

Indictment charging Torres with being found in the United States after having been previously 

deported and removed from the United States, without the express consent of the Attorney General 

or the Secretary of Homeland Security, in violation of Title 8, United States Code, Sections 1326(a) 

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and (b)(2). (Doc. No. 1.) On October 7, 2022, Torres pleaded guilty as charged. (Doc. Nos. 

15, 19, 22.) 

Torres’ sentencing hearing is scheduled for December 15, 2022. According to the 

Presentence Investigation Report (“PSI”), Torres has a total offense level of 21 and criminal 

history category of III, which yields an advisory guideline range of 46 – 57 months’ imprisonment. 

(PSI at ¶¶ 25, 27, 59.) Torres’ Base Offense Level was increased by six levels under U.S.S.G. § 

2L1.2(b)(2)(C) because he was convicted of assault in the second degree with a dangerous weapon 

and sentenced to more than thirteen months before he was removed from the United States for the 

first time, and ten levels under U.S.S.G. § 2L1.2(b)(3)(A) because he was convicted of identity 

theft and sentenced to a term of imprisonment not to exceed five years after he was removed from 

the United States for the first time. (PSI at ¶¶ 13, 14, 25-26.) 

On November 21, 2022, Torres filed the instant motion, in which he seeks a downward 

variance. Specifically, Torres claims his second degree assault conviction is too old and should 

be discounted, and that the sentence he received on his identity theft conviction should be treated 

as a sentence of less than two years under U.S.S.G. § 2L1.2(b)(3)(C), instead of a sentence of five 

years or more under U.S.S.G. § 2L1.2(b)(3)(A), because he was paroled after serving eleven 

months. (Doc. No. 24.) 

ANALYSIS 

The overarching goal of a sentencing court is to fashion a sentence that is sufficient, but 

not greater than necessary, to accomplish the goals of sentencing. Kimbrough v. United States, 

552 U.S. 85, 101 (2007). The sentencing court should begin the process by correctly calculating 

the applicable guideline range and must “remain cognizant of them throughout the sentencing 

process.” Gall v. United States, 552 U.S. 38, 50 n.6 (2007). Section 1B1.1 of the Sentencing 

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Guidelines outlines, in express language, the order which district courts are to proceed. First, the 

district court calculates the applicable guideline range. U.S.S.G. § 1B1.1(a). Second, the district 

court applies any applicable departures under Sections H and K of Chapter 5. U.S.S.G. § 

1B1.1(b). After the first two steps are complete, “the Court shall then consider the applicable 

factors in 18 U.S.C. § 3553(a) taken as a whole.” U.S.S.G. § 1B1.1(c). 

The Section 3553(a) factors are: 

(1) the nature and circumstances of the offense and the history and characteristics 

of the defendant; 

(2) the need for the sentence imposed— 

(A) to reflect the seriousness of the offense, to promote respect for the law, 

and to provide just punishment for the offense; 

(B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the defendant; and 

(D) to provide the defendant with needed educational or vocations training, 

medical care, or other correctional treatment in the most effective manner; 

(3) the kinds of sentences available; 

(4) the kinds of sentence and the sentencing range established in the Guidelines; 

(5) any pertinent policy statement by the Sentencing Commission; 

(6) the need to avoid unwarranted disparities among defendants with similar records 

who have been found guilty of similar conduct; and 

(7) the need to provide restitution to any victims. 

18 U.S.C. § 3553(a)(1)-(7). 

Nature and Circumstances and Seriousness of the Offense 

Torres is not a natural-born or naturalized citizen, or a national of the United States. 

Torres is a native and citizen of Honduras. (PSI at ¶ 5.) 

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Torres unlawfully entered the United States when he was seventeen years old in 1996 or 

1997. (PSI at ¶ 37.) On June 28, 2004, Torres was convicted of driving while intoxicated and 

sentenced to 90 days of jail followed by one year of probation. (PSI at ¶ 24.) 

On September 30, 2006, Torres assaulted a woman with a knife in Chippewa County, 

Minnesota. Torres was ultimately convicted of assault in the second degree with a dangerous 

weapon under Minnesota law and sentenced to 16.5 months in prison.1 Torres was released from 

custody on his second degree assault conviction on August 29, 2007. (PSI at ¶ 25.) On October 

11, 2007, Torres was removed from the United States and sent back to Honduras. (PSI at ¶¶ 5, 

29.) 

Sometime thereafter, Torres unlawfully re-entered the United States. On September 1, 

2009, Torres used a forged Minnesota identification card and fraudulent social security card to 

apply for a job at a restaurant in Sioux County, Iowa. Torres was ultimately convicted of identity 

theft under Iowa law and sentenced to a term of imprisonment not to exceed five years. Torres 

was released from custody on his identify theft conviction on August 5, 2010, after serving 

approximately eleven months. (PSI at ¶ 26.) On August 27, 2010, Torres was again removed 

from the United States and sent back to Honduras. (PSI at ¶¶ 5, 30.) 

Torres once again unlawfully re-entered the United States. On August 12, 2022, Torres 

was arrested in Saint Lucie County, Florida for driving without a license. (PSI at ¶ 31.) 

In summary, Torres unlawfully entered the United States on at least three occasions and 

proceeded to commit serious crimes, including an aggravated felony, after each unlawful entry. 

1

 Assault in the second degree under Minnesota law qualifies as an aggravated felony under Title 

8, United States Code, Section 1326(b)(2). See Farah v. U.S. Attorney General, 12 F.4th 1312, 

1324-25 (11th Cir. 2021). 

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The United States has a strong interest in securing its borders from aggravated felons, such as 

Torres, who persist in returning to the United States unlawfully. 

The nature and circumstances and seriousness of the offense justify a sentence of 57 

months’ imprisonment. 

History and Characteristics of the Defendant 

Torres’ criminal history also merits attention as it reveals a complete disregard for the law 

and lack of respect for authority. Indeed, Torres, who is not a United States citizen or lawfully 

permitted to be in the United States, has already amassed no less than three separate criminal 

convictions, including driving under the influence (2004), assault with a dangerous weapon (2007), 

and identity theft (2010). (PSI at ¶¶ 24-26.) Torres’ criminal history is troubling when measured 

against the fact he has been removed from the United States multiple times and presumably lived 

outside the United States for several years during adulthood. The fact Torres, who is now 43 

years old, continues to surreptitiously enter the United States and engage in criminal activity is 

particularly disconcerting. Neither Torres’ criminal history category nor his Total Offense Level 

over-represents the seriousness of his criminal history or the likelihood that he will commit future 

crimes. See U.S.S.G. § 4A1.3(b)(1). 

Torres’ Base Offense Level was also properly increased by ten levels under U.S.S.G. § 

2L1.2(b)(3)(A) based on the sentence he received for his 2010 identity theft conviction. That 

Torres only served approximately eleventh months of this sentence is of no moment. See

U.S.S.G. § 2L1.2, App. N. 3 and U.S.S.G. § 4A1.2, App. N. 2 (“[I]n the case of a determinate 

sentence of five years, the stated maximum is five years; in the case of an indeterminate sentence 

of one to five years, the stated maximum is five years; in the case of an indeterminate sentence for 

a term not to exceed five years, the stated maximum is five years . . . That is, criminal history 

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points are based on the sentence pronounced, not the length of time actually served.”) (emphasis 

added). 

The Need for the Sentence to Promote Respect for the Law, Provide Just Punishment 

for the Offense, Afford Adequate Specific and General Deterrence, and Protect the Public 

from Further Crimes of the Defendant 

Torres’ criminal history evinces an alarming level of recidivism and strongly suggests he 

will continue to unlawfully enter the United States and violate the law when not incarcerated. To 

be clear, Torres was removed from the United States in October 2007 after he assaulted a woman 

with a knife. Less than three years later, Torres, undeterred, unlawfully re-entered the United 

States and committed another felony, identity theft. Torres was once again removed from the 

United States and, still undeterred, unlawfully re-entered the United States and was arrested for a 

driving offense. Torres has simply failed to demonstrate any ability to live amongst society crime 

free, much less a right to live in the United States. Torres’ prior periods of incarceration clearly 

were not sufficient enough to impress upon him the need to obey the law and conform his conduct 

to the requirements of society.2

 The fact Torres has not served a sentence as long as the one he 

now faces may well be the reason he continues to violate the law. Granting a variance in this case 

would send precisely the wrong message: that immigration crimes are not serious, that the dangers 

associated with aggravated felons unlawfully entering the United States are overblown, and that 

the penalties set forth in our immigration laws needn’t be strictly followed. 

A significant sentence is necessary to promote respect for the law, provide just punishment 

for the offense, afford adequate specific and general deterrence, and protect the public from further 

crimes of the defendant. 

2

 The longest sentence Torres has served to date is approximately 16.5 months. (PSI at ¶ 25.) 

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Parity in Sentencing 

Finally, Torres should expect to be treated like other similarly situated defendants. Parity 

in sentencing among similarly situated federal defendants across the country is fundamental to the 

proper administration of justice. This principle is embodied in Section 3553(a)(6), which “is 

concerned with national disparities among the many defendants with similar backgrounds 

convicted of similar criminal conduct.” United States v. Simmons, 501 F.3d 620, 623 (6th Cir. 

2007). Generally, “national uniformity is . . . taken into account by the Sentencing Guidelines, 

which are almost certainly the best indication of ordinary practice since most sentences are within 

the guidelines.” Id. at 626 (internal marks and citation omitted). Indeed, “[e]ven after Booker

rendered the Sentencing Guidelines advisory, district courts have in the vast majority of cases

imposed either within-Guidelines sentences or sentences that depart downward from the 

Guidelines on the Government’s motion.” Hughes v. United States, 138 S.Ct. 1765, 1777 (2018) 

(internal marks and citation omitted; emphasis added). 

A sentence of 57 months’ imprisonment adequately reflects the relevant 3553(a) factors, 

preserves the integrity of the Sentencing Guidelines, and promotes national uniformity. 

CONCLUSION 

Based on the foregoing, the United States respectfully requests the Court to sentence the 

defendant to 57 months’ imprisonment. 

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 Respectfully submitted, 

JUAN ANTONIO GONZALEZ 

UNITED STATES ATTORNEY 

By: /s/Michael D. Porter_________ 

Michael D. Porter 

Assistant United States Attorney 

Florida Bar# 0031149 

101 South U.S. Highway 1 

Suite 3100 

Fort Pierce, Florida 34950 

Telephone: (772) 293-0950 

Email:michael.porter2@usdoj.gov 

CERTIFICATE OF SERVICE 

I hereby certify that on December 1, 2022, a copy of the foregoing was filed electronically. 

Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties 

indicated on the electronic filing receipt. All other parties will be served by either regular U.S. 

mail or inter-office delivery. 

/s/Michael D. Porter______ ___ 

Michael D. Porter 

Assistant United States Attorney 

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