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. e du/thir dc ir c uit_2001/111Filed May 22, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-5209

UNITED STATES OF AMERICA

v.

CHARLES TORRES, Appellant

APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

(D.C. No. 95-cr-00147) District Judge: The Honorable William H. W alls

ARGUED SEPTEMBER 14, 2000

BEFORE: BECKER, Chief Judge, NYGAARD, and AMBRO, Circuit Judges.

(Filed: May 22, 2001)

John V. Saykanic, Esq. (Argued) Miles R. Feinstein, Esq.
1135 Clifton Avenue Clifton, NJ 07013

Counsel for AppellantGeorge S. Leone, Esq.

Michael Martinez, Esq. (Argued) Office of United States Attorney 970 Broad Street, Room 700 Newark, NJ 07102

Counsel for Appellees

OPINION OF THE COURT

NYGAARD, Circuit Judge:

Charles Torres appeals the eleven month sentence imposed on him under the United States Sentencing Guidelines after pleading guilty to one count of ba nk fraud in violation of 18 U.S.C. S 1344. At sentencing, th e government had requested a downwar d departure purs uant
to U.S.S.G. S 5K1.1 based on Torr es's substantial assistance in a federal investigation of police cor ruption and illegal gambling enterprises in northern New Je rsey. According to the government, which submitted a six- page letter to the District Court exhaustively detailing and commending Torres's assistance, the cooperation las ted for approximately five years and eventually r esulted i n the criminal convictions of thirty individuals on char ges of racketeering, extortion, and obstruction of justice . The District Court granted the S 5K1.1 motion but, desp ite the government's presentation, chose to r educe Torres' s sentence by only one month.

In this appeal, Torres alleges that the District Co urt, when ruling upon the government's S 5K1.1 motion, committed a mistake of law or incorrectly applied t he Guidelines in several ways. We reject these allegat ions of error, focusing with particular emphasis on Torres' s contention that the Court failed to examine thefive sentencing factors listed in S 5K1.1 in a sufficien tly thorough manner. Although we ultimately conclude th at the District Court's examination was minimally adequate , and therefore reject this allegation of error, we stres s that a sentencing court would be best served by car efully reciting

2on the record the factors it consider ed and weighe d in

arriving at its downward departure decision. Finall y, Torres further argues that the District Court err ed by fa iling to grant him a downward departure greater than the one month he received. With respect to this contention, we lack jurisdiction to review the District Court's discret ionary decision to depart by only one month. See United St ates v. Khalil, 132 F.3d 897, 898 (3d Cir . 1997).

Accordingly, we will affirm the sentencing decision of the
District Court.

I.

Torres's charge of bank fraud stems from his membership in the United Government Employees Feder al Credit Union, a federally-chartered and insured fin ancial institution in Union City, New Jersey. Torr es beca me a member of the credit union in 1987, and in April 19 90, he began obtaining fraudulent loans. By February 1991, he had obtained eight fraudulent loans totaling mor e than $90,000. In his first application, for $21,026.45, he falsely represented his annual income as $50,000. The credi t union approved the application. He obtained a secon d loan for $15,000 on May 30, 1990, after falsely r eporti ng an annual income of $75,000 and a $500,000 home. He obtained his third fraudulent loan ($20,000) by usi ng the name of his business partner and failing to disclos e his partner's outstanding debts. Less than a month late r , Torres obtained a $5,000 line of cr edit by falsely reporting an income of $45,000. The credit union granted him a second line of credit for $5,000 on January 23, 199 1, after he falsely reported an income of $50,000. T orres u ltimately drew $9,000 against this credit extension. On Febru ary 25, 1991, he used his sister's name and financial infor mation to obtain a $6,000 loan; that same day, he r eceive d another $6,000 loan by using his brother's name. The next d ay, Torres obtained his eighth and final loan ($15,000) from the credit union by using his wife's name.

Torres pleaded guilty to bank fraud on March 31, 19 95.
Based on an offense level of fourteen and a crimina l history category of II, the District Court sentenced him to twenty-

3four months imprisonment and five years of supervis ed

release. The court also ordered him to pay $30,000. 00 in restitution and a $50.00 special assessment fee. To rres appealed this sentence, arguing, inter alia, that t he District Court had abused its discretion by declining to red uce his offense level for acceptance of responsibility purs uant to U.S.S.G. S 3E1.1. We agreed, vacated the sentence, and remanded the case for resentencing. See U.S. v. Tor res, No. 95-5831, (3d Cir. July 8, 1996).

Upon remand, the District Court granted the parties ' joint requests for a continuance to allow T orres t o cooperate in a federal investigation of police corr uption involving illegal gambling enterprises in Union Cit y, West New York, and several other northern New Jersey cit ies. On February 25, 2000, the District Court held a r esen tencing hearing. The Court granted a two-level downwar d de parture for acceptance of responsibility, lowering T orres' s offense level from fourteen to twelve and his range of inca rceration from eighteen to twenty-four months to twelve to ei ghteen

months.

In addition, the government requested a downward departure pursuant to U.S.S.G. S 5K1.1 for Torres's substantial assistance. During the hearing and in i ts letter brief to the Court, the government str ongly recomm ended that Torres's sentence be reduced to probation. In the sixpage letter brief, which comprehensively detailed t he assistance that Torres had furnished, the governmen t reported that Torres had "worked diligently and agg ressively to provide genuine and ultimately very helpful assi stance" in its investigation of police corruption involving illegal gambling enterprises. J.A. at 75. Torr es's coopera tion had lasted for approximately five years, during which t ime Torres had helped to assemble crucial evidence by developing relationships with key players in the co nspiracy and then tape-recording their inculpatory conversat ions. These efforts contributed significantly to obtainin g an indictment and guilty plea from at least one Union City officer and furthered the investigation of police c orruption that resulted in the indictment and prosecution of nine police officers and seven others on charges of rack eteering, conspiracy, extortion, and bribery. See id. at 76. In sum,

4the federal investigation yielded more than thirty

convictions for racketeering, extortion, obstructio n of justice, and other related offenses. 1 See id. at 7 7. Because of Torres's key role in the securing of these convi ctions, the government's letter, in various places, characteriz ed Torres's assistance as "substantial and important," "vital," "diligent[ ] and aggressive,""very helpful," "extra ordinary," "pro-active," "tremendously significant," "immensel y significant," and of "enormous benefit." Id. at 72- 76.

Torres's attorney also argued in favor of the gover nment's motion and recommended the imposition of a pr obati onary sentence. He emphasized that Torres pr ovided "extraordinary assistance to the gover nment" durin g a five year time-period and helped obtain thirty convictio ns. Specifically, he noted that Torres had tape-recorde d up to sixty-five conversations, reviewed transcripts of t hose conversations, appeared before the grand jury on nu merous occasions, and agreed to testify whenever asked to do so. Moreover, as a result of his extensive cooperation, Torres was threatened and his family suffer ed. Id. at 91- 99.

The District Court granted the S 5K1.1 motion but, despite the presentations made by both the governme nt and Torres's attorney, chose to depart downward onl y one month below the applicable twelve to eighteen month Guideline range, sentencing Torres to twelve months incarceration. The District Court enter ed its judg ment of sentence on March 17, 2000, and this timely appeal

followed.

II.

On appeal, Torres presents four ar guments. First, he contends that in determining the extent of his sent encing reduction for substantial assistance, the District Court

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1. The government, however, also noted that Torres' s assistance was untimely in certain respects. For example, by the t ime Torres agreed to provide crucial assistance in the investigation of a Union City Police Department captain, he had died. Therefor e, the go vernment concluded that "Torres's hesitance to pr ovide candid and com plete cooperation at the outset resulted in useless delay and lost oppor tunities that are now impossible to calculate." J.A. at 77.

5erred by failing to examine and weigh S 5K1.1's enu merated

factors in a sufficiently thorough manner . Second, he argues that the District Court erred by announcing his sentencing reduction in terms of months rather than offense levels. Third, he contends that the sentenc ing judge misunderstood the proper legal standard for grantin g downward departures under S 5K1.1. Finally, he argu es that the District Court erred by granting him too s mall a downward departure under S 5K1.1.

Torres's first three arguments allege sentencing er rors based upon a mistake of law or an incorrect applica tion of the Guidelines. Thus, we have appellate jurisdictio n and review these claims under a plenary standar d. See United States v. Spiropoulos, 976 F.2d 155, 160 n.2 (3d Ci r. 1992). In contrast, we lack jurisdiction to review the ext ent of a District Court's discretionary downward departure f or substantial assistance to the government. See Unite d States v. Parker, 902 F.2d 221, 222 (3d Cir . 1990).

A.

1.

Torres first argues that the District Court erred i n determining the extent of a downward departure for his substantial assistance to the government by failing to conduct an adequate assessment of S 5K1.1'sfive enumerated factors. During oral argument, T orres c onceded
that the court considered each of the factors befor e announcing its ruling, but now argues that its exam ination was superficial, covering only the "basics." He con tends that such a cursory analysis, with minimal articula tion, fails under our standard, which requir es a qualita tive, factspecific assessment of a defendant's substantial as sistance. Thus, he believes his sentence should be vacated.

Torres's first argument r equires us to examine the responsibility of a District Court judge when consi dering a S 5K1.1 motion for downward departur e based on substantial assistance. Our analysis begins withS 3 553 of the Sentencing Reform Act, which describes the obli gations

6of the court when imposing a sentence under the

Guidelines. Section 3553(c) provides:

(c) Statement of reasons for imposing senten ce. The court, at the time of sentencing, shall stat e in open court the reasons for its imposition of the particular sentence, and if the sentence--

(1) is of the kind, and within the range, de scribed in subsection (a)(4) and that range exceeds 24 months, the reason for imposing a sentence at a part icular point within the range; or

(2) is not of the kind or is outside the ran ge, described in subsection (a)(4), the specific reason fo r the imposition of a sentence different fr om tha t described.

18 U.S.C. S 3553(c).

Thus, under S 3553(c), a sentencing judge must expl ain his or her reasons for imposing a particular senten ce. Further, when a sentence is outside the Guidelines range, S 3553(c)(2) adds an additional obligation. It requ ires a sentencing judge to justify explicitly his or her d ecision to depart. Reducing a sentence under S 5K1.1 falls und er S 3553(c)(2)'s more stringent provision, because it permits a sentencing judge to depart from the Guidelines rang e based upon a defendant's substantial assistance.

Both the language of S 5K1.1 and its Backgr ound Commentary reflect S 3553(c)'s command. In its 1999 form,2 S 5K1.1 provides:

Upon motion of the government stating that t he defendant has provided substantial assistanc e in the investigation or prosecution of another pers on who has committed an offense, the court may depart f r om the guidelines.

(a) The appropriate reduction shall be deter mined by

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2. Although the 1995 Guidelines applied to T orres' s initial sentencing,
the 1999 Guidelines were in effect at time of his r esentencing and, thus, govern this appeal. See U.S. SENTENCING GUIDELINES MANUAL S 1B1.11 (1999) (dictating that the version of the Guideline s in effect at the time of sentencing is to be used).

7the court for reasons stated that may includ e, but are

not limited to, consideration of the followi ng:

(1) the court's evaluation of the significan ce and usefulness of the defendant's assistance, ta king into consideration the government's evaluation of the assistance rendered;

(2) the truthfulness, completeness, and reli ability of any information or testimony provided by the defendant;

(3) the nature and extent of the defendant's assistance;

(4) any injury suffered, or any danger or ri sk of injury to the defendant or his family resulting fr om his assistance;

(5) the timeliness of the defendant's assist ance.

U.S. SENTENCING GUIDELINES MANUAL S 5K1.1 (1999).

Similar to S 3553(c), subsection (a) of S 5K1.1 req uires a sentencing judge to state his or her reasons for re ducing a sentence. Section 5K1.1, however, extendsS 3553(c) and includes a list of relevant factors for measuring s ubstantial assistance and determining the extent of a r educti on. Section 5K1.1, however, does not explicitly r equir e the consideration of these factors. Instead, it pr ovid es "[t]he appropriate reduction shall be deter mined by the c ourt for reasons stated that may include, but are not limite d to, consideration of the following." Id. (emphasis adde d). Thus, a sentencing judge is not confined to S 5K1.1's enu merated factors. However, it requires a sentencing judge to provide a specific statement explaining what factors he or she applied and the role these factors played in the se ntencing
determination.

Section 5K1.1's Background Commentary also r equire s a District Court to state its reasons for departing f rom the
Guidelines for substantial assistance. The Commenta ry provides that "[t]he nature, extent, and significan ce of assistance can involve a broad spectrum of conduct that must be evaluated by the court on an individual bas is. Latitude is, therefore, affor ded the sentencing ju dge to reduce a sentence based upon the variable r elevant factors,

8including those listed above." Id. at cmt. backgrou nd. Citing

to S 3553(c), the Commentary continues, "[t]he sent encing judge must, however, state the r easons for reducin g a sentence under this section." Id. (emphasis added). Therefore, S 5K1.1's Background Commentary emphasiz es the requirement that a District Court conduct an individual, fact-specific analysis when deter minin g the
extent of a defendant's substantial assistance. Mor eover, it highlights the District Court's obligation to commu nicate that analysis to the respective parties.

In addition to the Sentencing Reform Act and the Guidelines, our case law requires an individualized
, qualitative analysis within and outside the context of S 5K1.1. For example, in United States v. Thompson, 483 F.2d 527 (3d Cir. 1973), a judge announced that he
sentenced all those convicted of violations of Sele ctive Service law to at least thirty months in jail no ma tter how "good they were." We held that it was impermissible for a sentencing judge to employ a personal "sentencing p olicy." We reasoned that "[a] fixed view as to sentencing i s inconsistent with the discretion vested in the tria l judge that he may fulfill his mandate to tailor the sente nce imposed to the circumstances surrounding each indiv idual defendant and frustrates the operation of those rul es set up to effect such a result." Id. at 529. More recently , in United States v. King, 52 F.3d 589, 591 (3d Cir . 1995), w e rejected a District Court's use of a mechanical "sentencing practice." We held that in making downward departur es under S 5K1.1, a District Court must undertake an individ ualized, case-by-case consideration of the extent and qualit y of a defendant's cooperation.

The First Circuit Court of Appeals has also examine d the duty of a sentencing judge when considering a depar ture
for substantial assistance under S 5K1.1. In United States v. Mariano, 983 F.2d 1150 (1st Cir. 1993), the appella nts argued that the District Court had confused the leg al principles governing departures underS 5K1.1 and S 5K2.0. The Court of Appeals agreed. In order to determine whether the District Court's error was harmless, it examine d the proper standard under S 5K1.1. In so doing, the Cou rt of Appeals initially noted that a district court has w ide

9discretion in deciding whether to depart underS 5K1 .1.

However, it held that S 5K1.1's r elevant factors " should be
considered the mother lode of substantial assistanc e inquiries." Id. at 1156. As such, the court instruc ted that "[a] district court, faced with a section 5K1.1 mot ion, must at a bare minimum indicate its cognizance of these factors." Id. (emphasis added).

We agree with the approach taken in the First Circu it. Thus, we hold that when considering a departur e fo r substantial assistance, a sentencing court not only must conduct a qualitative, case-by-case analysis but al so must examine S 5K1.1's enumerated factors. That is, when presented with a motion for downward departure a sentencing judge must, at the very minimum, indicat e his
or her consideration of S 5K1.1's five factors in d etermining whether and to what extent to grant a sentencing reduction. Further, a sentencing judge must indicat e his or her consideration of any factors outside those list ed in S 5K1.1. We strongly urge sentencing judges to make specific findings regarding each factor and articul ate thoroughly whether and how they used any pr offered evidence to reach their decision. In sum, it is inc umbent upon a sentencing judge not only to conduct an
individualized examination of the defendant's subst antial assistance, but also to acknowledge S 5K1.1's facto rs in his or her analysis.

This holding not only comports with the specificity requirements of S 5K1.1 but also r ecognizes the considerable responsibility of a sentencing judge. As we stated in United States v. Faulks, 201 F .3d 208, 2 13 (3d Cir. 2000), "the responsibility confr onting a dist rict court judge when he or she sentences a convicted defendan t is an awesome one." In that case, we held that in or der to ensure fairness, a judge must render a sentence in the def endant's presence. See id. We reasoned that it was not unlik ely that a judge may enter court with an abstract attitude a bout the appropriate sentence, only to alter that mind-set w hen faced with a live human being in open court. Accor dingly, imposing a sentence merely by written judgment is
forbidden. See id.

10Requiring district courts to consider S 5K1.1's del ineated

factors similarly ensures that a sentencing judge i s meeting his or her solemn duties in the most responsible wa y possible. Specifically, this requirement assures th at a sentencing decision is made with solicitude, becaus e it "encourages the judge to clarify and justify, in hi s own mind, the grounds for the sentence he chooses." Uni ted States v. Bazzano, 570 F.2d 1120, 1134 (3d Cir. 197 7) (Adams, J., concurring). Hence, it ensures that a sentencing decision is made fairly. Of course, fair ness is enhanced as a sentencing judge's analysis incr ease s in detail and thoroughness. This careful appr oach is essential where even minor differences in the length of a sen tence of confinement can have an enormous impact on a defend ant.

Moreover, justifying a sentencing decision by inclu ding a discussion of S 5K1.1's factors reinfor ces the dig nity of the accused. It acknowledges that he or she is worthy o f such an explanation. See id. at 1134. In many cases this requirement may be of "therapeutic worth to a defen dant." Dorszynski v. United States, 418 U.S. 424, 456 (197 4) (Marshall, J., concurring). Therefore, it serves an important function in the criminal justice system.

It is important to note, however, that our holding today in no way prevents a sentencing judge from considering factors beyond S 5K1.1's enumerated list. Such a ho lding would contravene both the very language of S 5K1.1 and our jurisprudence. Indeed, we encourage district co urts to
consider all relevant facts and factors in r eachin g their decisions. The preface to S 5K1.1's enumerated list states that "[t]he appropriate reduction shall be determin ed by the court for reasons that may include, but ar e not li mited to, consideration of the following . . . ." U.S. S ENTE NCING GUIDELINES MANUAL S 5K1.1 (1999). In addition, S 5K 1.1's Background Commentary provides that "[l]atitude is, therefore, afforded a sentencing judge to reduce a sentence based upon variable relevant factors, including tho se listed above." Id. at cmt. background. Consistent with thi s language, in United States v. Casiano, 113 F .3d 42 0, 428 (3d Cir. 1997), we stated that "the bases for subst antial assistance departures are not meant to be exhaustiv e, they are instructive." Thus, we held that a district cou rt's

11consideration of the "seriousness of the crime" and the

"impact on the victim" in determining the extent of a departure under S 5K1.1 was well within its discret ion. See
id. at 431.

Other Courts of Appeals have similarly interpr eted S 5K1.1. For example, in United States v. Carnes, 9 45 F.2d 1013, 1014 (8th Cir. 1991), the Eighth Cir cuit Cou rt of Appeals held that a district could weigh the assist ance rendered by the defendant, convicted inter alia of using a firearm during a drug trafficking of fense, against the benefit he received from the prosecution's decision not to charge him with the use of additional weapons. Additionally, in United States v. Mittelstadt , 969 F.2d 335, 336-37 (7th Cir. 1992), the Seventh Cir cuit Court of Appeals held that a district court did not err in c onsidering a defendant's chronic alcoholism in making aS 5K1.1 determination. See also United States v. Luiz, 102 F.3d 466 (11th Cir. 1996) (per curiam) (holding that a distr ict court'scomparison of a defendant's conduct to that of codefendants to determine the extent of a sentencing
reduction for substantial assistance was not a misapplication of S 5K1.1); United States v. Alvare z, 51 F.3d 36, 41 (5th Cir. 1995) ("[T]he decision as to the e xtent of the departure is committed to the almost complete discr etion of the district court, which may consider factors beyo nd the narrower set that could independently support a dep arture in the first instance."); Mariano, 983 F.2d at 1156 -57 ("Even
if the five factors enumerated in section 5K1.1 wei gh in a defendant's favor, the district court may, on the b asis of other considerations . . . decide to forego or curt ail a downward departure for substantial assistance.").

Applying this standard to the present case, we conc lude that the District Court, although marginally, met i ts burden under S 5K1.1. The transcripts of the sentencing he aring reveal that the Court heard and consider ed argumen ts that covered each factor enumerated in the Guidelines, a nd apparently read the government's letter. Although t he Court
failed to articulate the details of Torr es's subst antial assistance when announcing its ruling, we ar e sati sfied that it weighed S 5K1.1's factors nonetheless. Spec ifically, the Court stated, "[t]he motion for S 5K1.1 is gran ted. It's

12barely granted, but we will grant it because of the effusive

recommendation for such being made by the United St ates Attorney arising out of what appeared to be a succe ssful investigation and prosecution of law enfor cement o fficers . . . ." J.A. at 99. Therefore, the court indicated its
awareness of Torres's assistance in relation to the S 5K1.1
factors.3

The transcript also reveals that the District Court balanced the seriousness of Torres's of fense again st his substantial efforts to assist the gover nment's inv estigation.

The Court stated:

We have heard what he has said. W e have hea rd what his attorney has said with regard to this ap parent rehabilitation of Mr. Torr es. However, it r emains that Mr. Torres, nevertheless, committed a seriou s crime in 1991 and for that he should be punished.

Now, the extent of punishment can readily be tempered by the grant, which I do, of the motion 5K1. 1. But, I'm not placing him on probation because what he did cannot just be forgotten or erased or made t o disappear because of the subsequent cooperat ion with the Government, nevertheless, even though, a ccording to the Government, it was fruitful.

Id. at 99-100. As we indicated earlier , this sort of balancing is entirely proper and well within a district court 's
discretion.

Although we conclude that the District Court's consideration of the S 5K1.1 factors is adequate, w e cannot help but observe that it is minimally so. As noted above, 18 U.S.C. S 3553(c), U.S.S.G. S 5K1.1, and the backgro und commentary and case law interpreting them, impose a weighty obligation on a sentencing judge to articul ate the reasons for a particular downward departur e. This obligation assumes even greater vitality in situati ons, like

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3. We note, however, that in the absence of the ora l colloquy immediately prior to the District Court's ruling, the District Court's remarks would fall well short of our requirement that a sentencin g judge weigh and discuss S 5K1.1's factors when presented with a mot ion for substantial
assistance.

13Torres's, where the magnitude of the departure and the

extent of the cooperation may, at first blush, appe ar incongruous. The District Court chose to depart dow nward by only one month from the twelve to eighteen month Guideline range applicable to Torres, in spite of t he government's letter brief forcefully commending his cooperation, which during its five-year duration ul timately helped to net thirty criminal convictions, and in s pite of Torres's attorney's description of the threats Torr es and his family suffered as a consequence of his assistance. Section 5K1.1 indicates that a court should account, inter alia, for
"the nature and extent of the defendant's assistanc e," "the timeliness of the defendant's assistance," and"the government's evaluation of the assistance r endered " in making its departure decision, and should articulat e the ways in which it considered those factors. Although we conclude that, in Torres's case, the District Court 's consideration was minimally sufficient, we also str ess that a sentencing court would be best served by car eful ly reciting on the record the factors it evaluated in arriving at its S 5K1.1 departure decision, and the manner in w hich it weighed those factors.

2.

Torres further argues that the District Court emplo yed a "sentencing practice." In support, he points to the following comments by the District Court:

How much should be given for one who admitte dly is
a criminal? How much consideration does the Government want me to give to one who is adm ittedly
a criminal?

. . . .

You see the thing is, you have to for give m e, I'm somewhat cynical after all these years of ep iphanies that people obtain and have after they have been found guilty of a crime.

J.A. at 87-88.

Like Torres, we are troubled by these remarks. They appear to evidence a bias against rewar ding defend ants for

14substantial assistance under S 5K1.1, and convey

misgivings about defendants' cooperation, irr espec tive of the nature and degree of their assistance. Every pa rty to every court proceeding has the right to an impartia l determination of his or her rights. Cynicism, even if selfconfessed, has no place in the courtroom.

The District Court's statement, moreover , is wrong . The very purpose of a S 5K1.1 motion is to lower the se ntence of "one who is admittedly a criminal." Congr ess sp ecifically directed the Sentencing Commission to

assure that the guidelines reflect the gener al appropriateness of imposing a lower sentence than would otherwise be imposed . . . to take int o account
a defendant's substantial assistance in the investigation or prosecution of another pers on who has
committed an offense.

28 U.S.C. S 994(n) (1998) (emphasis added). Thus, C ongress has deemed a convicted defendant's meaningful assis tance in the administration of justice between appr ehens ion and sentencing worthy of an adjustment in his or her se ntence. Section 5K1.1 of the Guidelines reflects this judgm ent.

Accordingly, the fact that a defendant "is admitted ly a criminal" has no bearing on whether a S 5K1.1 motio n is granted or denied. We must remember that at this po int in the proceedings (sentencing), all defendants are cr iminals. A sentencing judge's own aversion to lowering the s entence
of a convicted defendant for substantial assistance is simply irrelevant. Like it or not, the Guidelines n ot only permit a defendant's assistance in the investigatio n or prosecution of another person who has committed an offense, but encourage it. It is the obligation of a sentencing court to apply S 5K1.1 with this in mind. W e belie ve the District Court came perilously close to violating t his obligation.

Despite these comments, however, we ar e convinced that the District Court's decision relied upon valid gro unds rather than its personal predilections. W e find no error because the Court considered the factors enumerated in
S 5K1.1 as well as other relevant cir cumstances. I ndeed, at no point did the sentencing judge state that it was "his

15practice" to depart downward one month for substant ial

assistance. Cf. King, 53 F.3d at 590-91. Rather, he weighed the seriousness of Torres's offense against the gov ernment's detailed presentation of his conduct in r elation t o S 5K1.1.
This examination and discussion belies Torr es's co ntention that the sentencing judge employed a sentencing pra ctice, rather than engaging in a qualitative, case-by-case analysis. Accordingly, we find no error with the District Cou rt's analysis or enunciation of its basis for granting T orres a one month reduction in his sentence for substantial assistance to the government in its investigation o f an illegal gambling enterprise.

B.

Torres also argues that the District Court improper ly applied the Guidelines when it announced the extent of his departure in terms of months rather than offense le vels. Further, he argues that the District Court misunder stood the legal standard for imparting a sentencing r edu ction under S 5K1.1 and thus applied it impr operly and i n violation of the law. We reject both of these argum ents.

With respect to Torres's contention that the Distri ct Court committed a legal error by not announcing its sentencing reduction in terms of of fense levels, n either the Sentencing Reform Act nor the Guidelines contain su ch a requirement. Here, the District Court reduced Torre s's sentence by one month. Under the Sentencing Guideli nes, a departure measured in months is easily translated into

offense levels. See U.S. SENTENCING GUIDELINES MANU AL ch. 3, pt. A (1999). Accordingly, the District Court's fai lure to
announce Torres's reduction in ter ms of offense le vels was not a legal error.

Torres also argues that the District Court misunder stood the legal standard for imposing a S 5K1.1 downward departure for substantial assistance and thus impos ed the
standard in violation of the law. Torr es bases thi s argument on a single statement by the District Court at sent encing. Specifically, he focuses on the statement, "[a]nd t hat explains to you, Mr. Torres, why I believe you shou ld be sentenced to jail and I do sentence you to jail bec ause we

16have granted you a departure." J.A. at 100 (emphasi s

added). Torres argues that this statement reflects the District Court's erroneous belief that it was r equ ired to sentence him to jail because it granted him a downw ard departure under S 5K1.1.

When read in its entirety, the recor d of the sente ncing hearing provides adequate assurance that the senten cing judge properly understood his authority underS 5K1. 1, and recognized he could sentence Torr es to probation r ather than jail. For example, prior to the statement at i ssue, the sentencing judge stated: "[n]ow the extent of the punishment can readily be tempered by the grant, wh ich I do, of the motion 5K1.1. But I am not placing him o n probation. By no stretch of the imagination am I pl acing him on probation because what he did cannot just be forgotten . . . because of subsequent cooperation w ith the

Government . . . ." Id. at 100. These remarks make clear that the court was fully aware of its legal authori ty to impose a probationary sentence, but declined to do so because of the seriousness of Torres's of fense. Th is decision
was within the discretion of the District Court and did not constitute error. As such, Torr es's argument fails

.

C.

Finally, Torres argues that the District Court erre d by not granting him a more significant downwar d departure . While we surely appreciate the reason for this grievance, we do not, however, have appellate jurisdiction with resp ect to
this issue.

A defendant may only appeal his sentence if it (1) was imposed in violation of law, (2) was imposed as a r esult of an incorrect application of the Guidelines, (3) is greater than that specified in the applicable Guideline ran ge, or (4) was imposed when there is no applicable guideline a nd is plainly unreasonable. 18 U.S.C. S 3742(a). Thus, wh ere the sentence was lawfully imposed and is within the app licable Guideline range, we lack jurisdiction to review the sentence. See United States v. Graham, 72 F .3d 352 , 358 n.8 (3d Cir. 1995).

17Here, Torres's challenge does not raise any of the above

bases for appealing his sentence. Rather, he is mer ely attacking the extent of a lawfully imposed sentence

. Accordingly, we are without jurisdiction to review this
issue.

III.

In summary, we hold that in determining the extent of a downward departure for substantial assistance, a sentencing judge must not only conduct a qualitativ e, factspecific analysis but also must expressly indicate its recognition of S 5K1.1's factors. W e hold that th e District Court minimally satisfied this standard by consider ing the government's extensive presentation of T orres's su bstantial assistance, which addressed each of S 5K1.1's five factors. Torres's additional allegations of err or are witho ut merit, and we are without jurisdiction to review the Distr ict Court's decision to depart by only one month. Accor dingly,
we affirm.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

18