2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-6-2000

United States v. Torres

Precedential or Non-Precedential:

Docket 99-1149

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Recommended Citation

"United States v. Torres" (2000). 2000 Decisions. Paper 74.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/74
Filed April 6, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-1149 

UNITED STATES OF AMERICA 

v. 

JORGE TORRES 

a/k/a 

GEORGE BOYD, JR. 

 Jorge Torres, Appellant 

No. 99-1491 

UNITED STATES OF AMERICA 

v. 

JORGE TORRES 

a/k/a 

GEORGE BOYD, JR. 

Jorge Torres, Appellant 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

District Judge: Honorable Eduardo C. Robreno, Jr. 

D.C. Criminal No. 98-cr-00514 

Submitted Under Third Circuit LAR 34.1(a) 

January 10, 2000 

Before: BECKER, Chief Judge, and 

ALITO and BARRY, Circuit Judges. 

(Filed: April 6, 2000) 

 Salvatore C. Adamo, Esquire 

 100 South Broad Street 

 Land Title Building, Suite 1351 

 Philadelphia, PA 19110 

 Attorney for Appellant 

 Joel D. Goldstein, Esquire 

 Assistant U.S. Attorney 
 Office of United States Attorney 

 Suite 1250, 615 Chestnut Street 

 Philadelphia, PA 19106 

 Attorney for Appellee 

OPINION OF THE COURT 

BARRY, Circuit Judge: 

Appellant Jorge Torres was sentenced on his plea of

guilty to one count of bank fraud, in violation of 18 U.S.C. 

S 1344. On appeal, he has raised various challenges to the 

sentence that was imposed, most bottomed on his 

contentions that he was sentenced as if the fraud had been 

successful, when it was not, and there was no actual loss. 

We have considered the issues he has raised andfind them 

to be without merit. Because, however, two of the issues 

addressed to Torres' attempted but unsuccessful fraud as 

well as the issue of how explicit a district court must be 

regarding a defendant's ability to pay a fine recur with 

some frequency in the district courts of this Circuit (and, by 

extension, in this Court), we will discuss them, albeit briefly.1 

_________________________________________________________________ 

1. Torres also contends that he should not have received a two-level 

increase in the offense level because his offense did not involve "more 

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I. Background 

On September 14, 1997, Jorge Torres, identifying himself 

as George Boyd, opened a money market account at the 

Cottman Avenue branch of the Commonwealth Bank in 

Philadelphia, Pennsylvania. He presented photo 

identification displaying a picture of himself and a nonissued social security number. Ten days later, Torres, again 

posing as Boyd, returned to the Cottman Avenue branch 

and opened a second money market account in the name of 

Kelly Services, Inc. He presented a license in Boyd's name 

"c/o Kelly" from the Department of Licenses and Inspection 

and deposited a subsequently dishonored $240.65 third 

party check made payable to Kelly Services. On the same 

day, at the Port Richmond branch of the Commonwealth 

Bank, another individual using Boyd's name (surveillance 

cameras indicate that it was not Torres) deposited a stolen 

U.S. Treasury check in the amount of $66,021.94 and

payable to Kelly Services into the Kelly Services account. An 

investigation subsequently established that Torres'

fingerprint was on the deposit slip used in that transaction. 

The following day, Torres, yet again claiming to be Boyd, 
appeared at the Castor Avenue branch of the 

Commonwealth Bank and attempted to withdraw $24,900

from the Kelly Services account. The bank refused to permit 

the withdrawal, advising Torres that the funds were

unavailable. Either shortly before or shortly thereafter, the 

bank came to suspect that the account was fraudulent. It 

_________________________________________________________________ 

than minimal planning." See U.S.S.G.S 2F1.1(b)(2)(A). " `More than 

minimal planning' means more planning than is typical for commission 

of the offense in a simple form' and is `deemed present in any case 

involving repeated acts over a period of time, unless it is clear that 

each 

instance was surely opportune.' " U.S.S.G.S 1B1.1, comment (n.1(f)). 

Because generally a finding of more than minimal planning is fact 

specific and because the facts of this case compel the conclusion that 

more than minimal planning was involved, we will not further discuss 

this issue. Nor will we discuss Torres' contention that, because he did 

not profit from the fraud and there was no actual loss, he should have 

but did not receive a downward departure. Where, as here, the District 

Court understood that it had the ability to depart but refused to do so, 

we lack jurisdiction to review that refusal. See United States v. 

McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996), cert. denied, 520 U.S. 1253 

(1997). 

 3 

notified the authorities, and Torres was subsequently 

arrested. 

On September 29, 1998, a grand jury in the Eastern 

District of Pennsylvania indicted Torres on one count of 

bank fraud, in violation of 18 U.S.C. S 1344. On November 

17, 1998, Torres pled guilty and a Presentence Investigation 

Report ("PSR") was prepared. The PSR noted that the

United States Sentencing Guidelines ("U.S.S.G") called for a 

base offense level of six for a violation of 18 U.S.C. S 1344. 

See U.S.S.G. S 2F1.1. Because the attempted loss was 

$66,262.59, i.e. more than $40,000 but less than $70,000, 

the base offense level was increased by five levels pursuant 

to U.S.S.G. S 2F1.1(b)(1)(F). Another two levels were added 

pursuant to U.S.S.G. S 2F1.1(b)(2)(A) because the offense 

involved repeated acts over a period of time, and two levels 

were deducted pursuant to U.S.S.G. S 3E.1.1(a) because 

Torres accepted responsibility for the offense to which he 

pled guilty. 

Based on a total offense level of eleven and a criminal 

history category of I, Torres' guideline range was eight to 

fourteen months imprisonment. At the sentencing hearing 

on February 8, 1999, Torres objected to the five level 

increase for loss in the amount of $66,262.59, contending 
that the correct loss figure should be $24,900 with only a 

four level increase. He argued, as well, that his actions 

constituted an attempt warranting only a three level 

increase pursuant to U.S.S.G. S 2X1.1(b)(1) and did not 

involve repeated acts over a period of time. 

The District Court rejected each of Torres' objections and 

denied his motion for a downward departure. Having ruled 

on the objections, the Court "adopted the recommended 

findings of facts in the presentence investigation report as 

the findings of facts of the Court." 

Sentence was thereafter imposed as follows: 

 [T]he defendant, Jorge Torres, is hereby committed to 

 the custody of the Bureau of Prisons to be imprisoned 

 for a term of 12 months. That sentence shall be a split 

 sentence, pursuant to Section 5(c)1.1 of the sentencing 

 guidelines. The defendant shall spend six months in 

 custody and the balance of the sentence shall be spent 

 4 

 in a community confinement institution to be

 designated by the Bureau of Prisons. 

Torres was also sentenced to a five year term of supervised 

release and a $5,000 fine. He appealed. 

Torres, still in prison after having served more than seven 

months, filed a "Motion for Clarification of Split Sentence 

and Immediate Release on Home Confinement." He argued, 

not surprisingly and with considerable force, that the 

District Court's remarks at sentencing and the sentence 

imposed clearly indicated that he serve six months in jail 

and six months in community confinement. If that was the 

sentence the Court intended to impose, we note, it did it 

wrong by not sentencing Torres to the custody of the 

Bureau of Prisons for six months rather than twelve, with 

the remaining six months in community confinement as a 

condition of supervised release. Be that as it may, the 

Court denied Torres' motion, stating that it sentenced 

Torres to twelve months imprisonment and only 

recommended to the Bureau of Prisons that the last six 

months be served in a community confinement facility. 

Torres again appealed and, in little more than a passing 

comment, suggests only that he disagrees with the Court's 

decision not to have immediately released him on home 

confinement. Whatever the District Court's intent at 

sentencing may have been, however, the fact remains, and 

fact it be, that both orally and in the written Judgment, the 

Court sentenced Torres to the custody of the Bureau of 

Prisons for twelve months, not six. Given that sentence, we 
will affirm without further discussion the denial of Torres' 

motion and will address only Torres' appeal from the 

Judgment of February 8, 1999.2 

II. Jurisdiction and Standard of Review 

The District Court had jurisdiction pursuant to 18 U.S.C. 

S 3231. We have jurisdiction pursuant 18 U.S.C. S 3742(a) 

and (e) and 28 U.S.C. S 1291. We exercise plenary review of 

the District Court's legal construction of the Sentencing 

_________________________________________________________________ 

2. That appeal and the appeal from the Judgment have been 

consolidated by this Court for briefing and disposition. 

 5 

Guidelines. See United States v. Medeiros, 884 F.2d 75, 78 

(3d Cir. 1989). Factual determinations and offense level 

calculations are reviewed under the clearly erroneous 

standard. See United States v. Demes, 941 F.2d 220 (3d 

Cir.) cert. denied, 502 U.S. 949 (1991); United States v. 

Cianscewski, 894 F.2d 74, 82 (3d Cir. 1990). Where a 

defendant has not raised an issue at sentencing, the 

standard of review is plain error. See Fed. R. Crim. P. 52(b). 

III. Discussion 

A. Amount of Loss 

The District Court found, as had the PSR, that the loss 

was $66,262.59, i.e. the amount of the stolen check

deposited into the Kelly Services account -- $66,021.94 -- 

plus the amount of the bad check used to open the account 

-- $240.65. Torres contends that the loss was $24,900, i.e. 

the amount of the attempted withdrawal. Torres is wrong. 

As this Court has stated on numerous occasions, and as 

the Commentary to U.S.S.G. S 2F1.1 at note 8 provides, the 

Guidelines sweep in not only actual loss but intended loss, 

if that amount can be determined and is higher than actual 

loss: 

 This Court's precedents establish that `fraud loss is, in 

 the first instance, the amount of money the victim has 

 actually lost.' However, `if an intended loss that the 

 defendant was attempting to inflict can be determined, 

 this figure will be used if it is greater than actual loss.' 

United States v. Yeaman, 194 F.3d 442, 456 (3d Cir.

1999)(emphasis added) (quoting United States v. Coyle, 63 

F.3d 1239, 1250-51 (3d Cir. 1995) & Application Note 7 

(now Application Note 8) to S U.S.S.G. 2F1.1); see also 

United States v. Holloman, 981 F.2d 690, 693 (3d Cir. 
1992), cert. denied, 509 U.S. 907 (1993); United States v. 

Schneider, 930 F.2d 555, 558 (7th Cir. 1991)(" `loss' within 

the meaning of the Guidelines includes intended, probable, 

or otherwise expected loss, a qualification of vital 

importance in a case such as this where the fraud is 

discovered or otherwise interrupted before the victim has 

been fleeced"). 

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Torres' activities in connection with the accounts leave 

little or no doubt that the "intended, probable, or otherwise 

expected loss" here was for the full amount fraudulently 

deposited. Within a two week period of time, in two

accounts neither of which was in Torres' name or the name 

of a company he had anything to do with, three branches 

of the same bank were hit by Torres and a cohort with a 

rubber check, a stolen check, and an attempted withdrawal 

of more than one-third of those fraudulent deposits. It was 

eminently reasonable for the District Court to infer that 

Torres intended to withdraw the balance of the deposits 

before the stolen check surfaced as stolen and would have 

done so had he not been arrested. As the Seventh Circuit 

put it, on similar facts, 

 The S 2F1.1 commentary thus anticipates precisely the 

 sort of situation presented in the instant case: a 

 defendant who clearly intended to inflict a loss on his 

 victim much greater than the `actual' loss time and 

 circumstances (i.e., his arrest) permitted him to exact. 

 In those situations, the Guidelines make clear that the 

 defendant should be held accountable for the full 

 amount of the loss he was prepared to inflict. 

United States v. Strozier, 981 F.2d 281, 285 (7th Cir. 1992). 

The correct measure of loss, therefore, was the entire 

amount that Torres fraudulently deposited in the Kelly 

Services account, regardless of the fact that he was 

prevented from making his first withdrawal. Thus, the 

District Court did not err in upwardly adjusting byfive 

levels for loss greater than $40,000 but less than $70,000, 

pursuant to U.S.S.G. S 2F1.1(b)(1)(F). 

B. Attempt 

Torres argues, next, that even if the loss figure was 

properly calculated, because the withdrawal of the $24,900 

and, thus, the completion of the offense were thwarted, his 

actions constituted only an incomplete attempt to defraud 

the bank of the full amount of the loss, warranting a three 

level reduction under U.S.S.G. S 2X1.1: 
 If an attempt, decrease by 3 levels, unless the 

 defendant completed all the acts the defendant believed 

 7 

 necessary for successful completion of the substantive 

 offense or the circumstances demonstrate that the 

 defendant was about to complete all such acts but for 

 apprehension or interruption by some similar event 

 beyond the defendant's control. 

U.S.S.G. S 2X1.1(b)(1). See also U.S.C.G. S 2B1.1 comment 

(n.2). 

We cannot ignore the fact that Torres pled guilty to the 

substantive, completed offense of bank fraud, and not to a 

mere attempt. But even aside from that important fact, 

when Torres' argument is considered solely under 

S 2X1.1(b)(1), which is all that he asks this Court to do, the 

simple answer is two-fold: first, as to the $24,900

attempted withdrawal, Torres had "completed all the acts 

[he] believed necessary"; and, second, as to the balance of 

the fraudulently deposited funds, the "circumstances 

demonstrate" that he "was about to complete all such acts" 

and was unsuccessful only because the bank was fortunate 

enough to suspect fraudulent activity such that Torres was 

subsequently arrested, and not because of any event within 

Torres' control. 

This conclusion is reached along the same lines that we 

followed in determining the amount of the intended loss 

under S 2F1.1, the guideline which concededly governs 

Torres' offense. As the Strozier Court observed, "The 

framers of the Guidelines noted this similarity themselves: 

the critical language concerning the defendant's`intended 

loss' in the S 2F1.1 commentary is preceded by the words, 

`[c]onsistent with the provisions of S 2X1.1 (Attempt, 

Solicitation or Conspiracy) . . . .' And so the defendant's 

arguments have brought us full circle." Strozier, 981 F.2d 

at 286. 

The District Court did not err in rejecting Torres' request 

for a three level reduction pursuant to U.S.S.G. 

S 2X1.1(b)(1). 

C. Imposition of the $5,000 Fine 

The Guidelines provide that the "court shall impose a fine 

in all cases, except where the defendant establishes that he 

is unable to pay and is not likely to become able to pay any 

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fine." U.S.S.G. S 5E1.2(a). The defendant has the burden of 

proving his or her inability to pay. See United States v. 

Carr, 25 F.3d 1194, 1212 (3d Cir.)(citing U.S.S.G. 

S 5E1.2(a)), cert. denied, 513 U.S. 1086 (1995). A 

sentencing court must consider an array of factors,

including evidence of the defendant's ability to pay the fine 

and to pay that fine over a period of time, his or her future 

earning capacity, any restitution or reparation that the 

defendant has made or is obligated to make, the burden 

that the fine will impose upon the defendant and others 

who are financially dependent on the defendant, and "any 

other pertinent equitable considerations." U.S.S.G.

S 5E1.2(d); see also 18 U.S.C. S 3572(a); 18 U.S.C.

S 3553(a); United States v. Seale, 20 F.3d 1279, 1284 (3d 

Cir. 1994). 

The Guidelines contain a "fine table" which establishes a 

minimum and maximum fine based on the defendant's 

offense level. Based upon a total offense level of 11, Torres 

was subject to a fine in the range of $2,000 to $1,000,000. 

See U.S.S.G. S 5E1.2 (c)(4). The District Court found that 

this was the appropriate range "provided the defendant has 

the ability to pay the fine." Torres did not object to the 

range or to the facts in the PSR which enabled the 

probation officer to conclude that he could pay afine within 

the appropriate range, arguing through counsel only that 

because "he's obviously not working [and] he has a wife and 

a child to support [, a] fine would be an undue hardship." 

The Court thereafter imposed sentence, including a $5,000 

fine to be paid in equal monthly installments over Torres' 

five year period of supervised release. 

It is important to highlight what Torres does not argue, 

and what he does. He does not argue that the District 

Court did not consider his ability -- or lack thereof -- to 

pay a fine. Nor does he argue that the PSR did not contain 

sufficiently detailed information about his financial 

condition and earning capacity or that any of that 

information was wrong. All he argues, citing that same 

concededly correct information, is that the record before the 

District Court did not establish whether he had the earning 

capacity to pay a fine while on supervised release. Torres is 

wrong. 

 9 

Where, as here, a defendant did not at sentencing raise 

the issue of his or her inability to pay, a sentencing court's 

decision to impose a fine and the amount of thefine is 

reviewed for plain error. See Fed. R. Crim. P. 52(b). And 

where, again as here, a defendant, whose burden it was to 

prove his or her inability to pay by a preponderance of the 
evidence, made utterly no showing in that regard and took 

no issue with facts of record showing an ability to pay, 

error sufficient to warrant relief must be very plain, indeed. 

Which brings us to Torres' "the record did not establish" 

argument which we construe as a challenge to the fact that 

the District Court did not make specific findings showing 

that the factors which touch on a defendant's ability to pay 

were considered. It is, of course, a requirement in this 

Circuit that findings be made regarding a defendant's 

ability to pay a fine or that a factual record be created such 

that it can be said that the Court considered the issue. See, 

e.g., Seale, 20 F.3d at 1284; United States v. Demes, 941 

F.2d 220, 223 (3d Cir.) cert. denied, 502 U.S. 949 (1991). 

While Torres is correct that the District Court did not 

explicitly find an ability to pay, it surely implicitly did so 

when it stated that it could impose a fine within the 

guideline range only if Torres had the ability to pay that 

fine, and thereafter imposed a fine; when it indicated in the 

Statement of Reasons section of the Judgment that the fine 

was not "waived or below the guideline range because of 

inability to pay" and the interest requirement on the fine 

was not waived or modified because of an inability to pay; 

and, most importantly, when it adopted the facts set forth 

in the PSR. 

Those facts as relevant to the fine, facts with which 

Torres not only took no issue at sentencing but takes no 

issue before us, clearly indicate that Torres' earning 

capacity upon his release from prison would be more than 

sufficient to pay the fine on an installment basis, pay off 

some or all of his debts, and support his family. Torres, 

twenty-one years old at that time of sentencing, received a 

high school degree in 1995 and satisfied the requirements 

for an associates degree in computer science at a college in 

the Dominican Republic. He reads, writes and speaks four 

languages. He has held several short-term positions, such 

 10 

as bartender, car salesman, and credit manager, and has 

served in the U.S. Army Reserves. He is able-bodied and in 

good health, with no history of mental or emotional

problems or any drug or alcohol abuse. 

As explained in the PSR, if upon release Torres held a 

forty-hour per week job at the minimum wage of $5.15 per 

hour, he would earn $892.66 per month, or $10,712 per 

year. Allowing 80% of this sum for subsistence results in 

$178.50 per month, or $2,142 per year for payment of any 

fine, restitution not being applicable in this case. 

Accordingly, Torres would be capable of paying thefine in 

less than three years while providing subsistence for his 
family in addition to that provided by his wife, who works 

as a waitress. The District Court allowed him to pay the 

fine in monthly installments over a five year period, 

moreover, which provided ample room for Torres to satisfy 

in whole or in part those obligations which had not been 

charged off or classified as bad debts. 

Given that Torres offered nothing beyond counsel's 

fleeting reference to the fact that Torres, not then working 

because he was in prison, "has a wife and a child to 

support," he failed to carry the "burden of persuasion (and, 

logically, the burden of production) . . . on the issue of his 

financial resources and needs." United States v. Voigt, 89 

F.3d 1050, 1093 (3d Cir.), cert. denied, 519 U.S. 1047 

(1996) (restitution under Victim and Witness Protection 

Act). That aside, this Court's requirement of specific 

findings will be satisfied if the District Court adopts a PSR 

which contains adequate factual findings with reference to 

an ability to pay such that there can be effective appellate 

review. See United States v. Hallman, 23 F.3d 821, 827 (3d 

Cir.) cert. denied, 513 U.S. 881 (1994) (rejecting claim that 

the District Court failed to make specific findings with 

reference to ability to pay restitution where it adopted the 

specific findings of the PSR). See also United States v. 

Castner, 50 F.3d 1267, 1277 (4th Cir. 1995). Because the 

unchallenged facts in the PSR supported the imposition of 

a fine within the guideline range, and because the District 

Court adopted the facts of the PSR, there was no error in 

imposing that fine without specific findings, much less 

plain error. 

 11 

IV. Conclusion 

For the reasons given, the judgments of the District 

Court of February 8, 1999 and May 28, 1999 will be 

affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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