2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-22-2001

United States v. Torres

Precedential or Non-Precedential:

Docket 00-5209

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Recommended Citation

"United States v. Torres" (2001). 2001 Decisions. Paper 111.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/111
Filed 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 Appellant 
 George 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 bank fraud 

in violation of 18 U.S.C. S 1344. At sentencing, the 

government had requested a downwar d departure pursuant 

to U.S.S.G. S 5K1.1 based on Torr es's substantial 

assistance in a federal investigation of police corruption 

and illegal gambling enterprises in northern New Jersey. 

According to the government, which submitted a six-page 

letter to the District Court exhaustively detailing and 

commending Torres's assistance, the cooperation lasted for 

approximately five years and eventually r esulted in 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, despite the 

government's presentation, chose to r educe Torres's 

sentence by only one month. 

In this appeal, Torres alleges that the District Court, 

when ruling upon the government's S 5K1.1 motion, 

committed a mistake of law or incorrectly applied the 

Guidelines in several ways. We reject these allegations 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 sufficiently 

thorough manner. Although we ultimately conclude that the 

District Court's examination was minimally adequate, and 

therefore reject this allegation of error, we stress that a 

sentencing court would be best served by car efully reciting 

 2 
on the record the factors it consider ed and weighed in 

arriving at its downward departure decision. Finally, Torres 

further argues that the District Court err ed by failing 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 discretionary 

decision to depart by only one month. See United States 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 Federal 

Credit Union, a federally-chartered and insured financial 

institution in Union City, New Jersey. Torr es became a 

member of the credit union in 1987, and in April 1990, 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 credit 

union approved the application. He obtained a second loan 

for $15,000 on May 30, 1990, after falsely r eporting an 

annual income of $75,000 and a $500,000 home. He 

obtained his third fraudulent loan ($20,000) by using the 

name of his business partner and failing to disclose his 

partner's outstanding debts. Less than a month later , 

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, 1991, after 

he falsely reported an income of $50,000. T orres ultimately 

drew $9,000 against this credit extension. On February 25, 

1991, he used his sister's name and financial information 

to obtain a $6,000 loan; that same day, he r eceived another 

$6,000 loan by using his brother's name. The next day, 

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, 1995. 

Based on an offense level of fourteen and a criminal history 

category of II, the District Court sentenced him to twenty- 

 3 
four months imprisonment and five years of supervised 

release. The court also ordered him to pay $30,000.00 in 

restitution and a $50.00 special assessment fee. Torres 

appealed this sentence, arguing, inter alia, that the District 

Court had abused its discretion by declining to reduce his 

offense level for acceptance of responsibility pursuant to 

U.S.S.G. S 3E1.1. We agreed, vacated the sentence, and 

remanded the case for resentencing. See U.S. v. Torres, 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 to 

cooperate in a federal investigation of police corruption 

involving illegal gambling enterprises in Union City, West 

New York, and several other northern New Jersey cities. On 

February 25, 2000, the District Court held a r esentencing 

hearing. The Court granted a two-level downwar d departure 

for acceptance of responsibility, lowering T orres's offense 

level from fourteen to twelve and his range of incarceration 

from eighteen to twenty-four months to twelve to eighteen 

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 its letter 

brief to the Court, the government str ongly recommended 

that Torres's sentence be reduced to probation. In the sixpage letter brief, which comprehensively detailed the 

assistance that Torres had furnished, the government 

reported that Torres had "worked diligently and aggressively 

to provide genuine and ultimately very helpful assistance" 

in its investigation of police corruption involving illegal 

gambling enterprises. J.A. at 75. Torr es's cooperation had 

lasted for approximately five years, during which time 

Torres had helped to assemble crucial evidence by 

developing relationships with key players in the conspiracy 

and then tape-recording their inculpatory conversations. 

These efforts contributed significantly to obtaining an 

indictment and guilty plea from at least one Union City 

officer and furthered the investigation of police corruption 

that resulted in the indictment and prosecution of nine 

police officers and seven others on charges of racketeering, 

conspiracy, extortion, and bribery. See id. at 76. In sum, 

 4 
the federal investigation yielded more than thirty 

convictions for racketeering, extortion, obstruction of 

justice, and other related offenses. 1 See id. at 77. Because 

of Torres's key role in the securing of these convictions, the 

government's letter, in various places, characterized 

Torres's assistance as "substantial and important," "vital," 

"diligent[ ] and aggressive,""very helpful," "extraordinary," 

"pro-active," "tremendously significant," "immensely 

significant," and of "enormous benefit." Id. at 72-76. 

Torres's attorney also argued in favor of the government's 

motion and recommended the imposition of a pr obationary 

sentence. He emphasized that Torres pr ovided 

"extraordinary assistance to the gover nment" during a five 

year time-period and helped obtain thirty convictions. 

Specifically, he noted that Torres had tape-recorded up to 

sixty-five conversations, reviewed transcripts of those 

conversations, appeared before the grand jury on numerous 

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 government 

and Torres's attorney, chose to depart downward only one 

month below the applicable twelve to eighteen month

Guideline range, sentencing Torres to twelve months

incarceration. The District Court enter ed its judgment 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 sentencing 

reduction for substantial assistance, the District Court 

_________________________________________________________________ 

1. The government, however, also noted that Torres's assistance was 

untimely in certain respects. For example, by the time Torres agreed to 

provide crucial assistance in the investigation of a Union City Police 

Department captain, he had died. Therefor e, the government concluded 

that "Torres's hesitance to pr ovide candid and complete cooperation at 

the outset resulted in useless delay and lost opportunities that are now 

impossible to calculate." J.A. at 77. 

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

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 sentencing judge 

misunderstood the proper legal standard for granting 

downward departures under S 5K1.1. Finally, he argues 

that the District Court erred by granting him too small a 

downward departure under S 5K1.1. 

Torres's first three arguments allege sentencing errors 

based upon a mistake of law or an incorrect application of 

the Guidelines. Thus, we have appellate jurisdiction and 

review these claims under a plenary standar d. See United 

States v. Spiropoulos, 976 F.2d 155, 160 n.2 (3d Cir. 1992). 

In contrast, we lack jurisdiction to review the extent of a 

District Court's discretionary downward departure for 

substantial assistance to the government. See United States 

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

A. 

1. 

Torres first argues that the District Court erred in 

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 conceded 

that the court considered each of the factors before 

announcing its ruling, but now argues that its examination 

was superficial, covering only the "basics." He contends 

that such a cursory analysis, with minimal articulation, 

fails under our standard, which requir es a qualitative, factspecific assessment of a defendant's substantial assistance. 

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 considering a 

S 5K1.1 motion for downward departur e based on 

substantial assistance. Our analysis begins withS 3553 of 

the Sentencing Reform Act, which describes the obligations 

 6 
of the court when imposing a sentence under the 

Guidelines. Section 3553(c) provides: 

 (c) Statement of reasons for imposing sentence. The 

 court, at the time of sentencing, shall state 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, described in 

 subsection (a)(4) and that range exceeds 24 months, 

 the reason for imposing a sentence at a particular 

 point within the range; or 

 (2) is not of the kind or is outside the range, described 

 in subsection (a)(4), the specific reason for the 

 imposition of a sentence different fr om that described. 

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

Thus, under S 3553(c), a sentencing judge must explain 

his or her reasons for imposing a particular sentence. 

Further, when a sentence is outside the Guidelines range, 

S 3553(c)(2) adds an additional obligation. It requires a 

sentencing judge to justify explicitly his or her decision to 

depart. Reducing a sentence under S 5K1.1 falls under 

S 3553(c)(2)'s more stringent provision, because it permits a 

sentencing judge to depart from the Guidelines range 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 the 

 defendant has provided substantial assistance in the 

 investigation or prosecution of another person who has 

 committed an offense, the court may depart fr om the 

 guidelines. 

 (a) The appropriate reduction shall be determined by 

_________________________________________________________________ 

2. Although the 1995 Guidelines applied to T orres's initial sentencing, 

the 1999 Guidelines were in effect at time of his resentencing and, thus, 

govern this appeal. See U.S. SENTENCING GUIDELINES MANUAL S 1B1.11 

(1999) (dictating that the version of the Guidelines in effect at the time 

of sentencing is to be used). 

 7 
 the court for reasons stated that may include, but are 

 not limited to, consideration of the following: 

 (1) the court's evaluation of the significance and 

 usefulness of the defendant's assistance, taking into 

 consideration the government's evaluation of the 

 assistance rendered; 

 (2) the truthfulness, completeness, and reliability 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 risk of injury 

 to the defendant or his family resulting fr om his 

 assistance; 

 (5) the timeliness of the defendant's assistance. 

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

Similar to S 3553(c), subsection (a) of S 5K1.1 requires a 

sentencing judge to state his or her reasons for reducing a 

sentence. Section 5K1.1, however, extendsS 3553(c) and 

includes a list of relevant factors for measuring substantial 

assistance and determining the extent of a r eduction. 

Section 5K1.1, however, does not explicitly r equire the 

consideration of these factors. Instead, it pr ovides "[t]he 

appropriate reduction shall be deter mined by the court for 

reasons stated that may include, but are not limited to, 

consideration of the following." Id. (emphasis added). Thus, 

a sentencing judge is not confined to S 5K1.1's enumerated 

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 sentencing 

determination. 

Section 5K1.1's Background Commentary also r equires a 

District Court to state its reasons for departing from the 

Guidelines for substantial assistance. The Commentary 

provides that "[t]he nature, extent, and significance of 

assistance can involve a broad spectrum of conduct that 

must be evaluated by the court on an individual basis. 

Latitude is, therefore, affor ded the sentencing judge to 

reduce a sentence based upon the variable r elevant factors, 

 8 
including those listed above." Id. at cmt. background. Citing 

to S 3553(c), the Commentary continues, "[t]he sentencing 

judge must, however, state the r easons for reducing a 

sentence under this section." Id. (emphasis added).

Therefore, S 5K1.1's Background Commentary emphasizes 

the requirement that a District Court conduct an 

individual, fact-specific analysis when deter mining the 

extent of a defendant's substantial assistance. Mor eover, it 

highlights the District Court's obligation to communicate 

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 Selective 

Service law to at least thirty months in jail no matter how 

"good they were." We held that it was impermissible for a 

sentencing judge to employ a personal "sentencing policy." 

We reasoned that "[a] fixed view as to sentencing is 

inconsistent with the discretion vested in the trial judge 

that he may fulfill his mandate to tailor the sentence 

imposed to the circumstances surrounding each individual 

defendant and frustrates the operation of those rules 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), we 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 individualized, 

case-by-case consideration of the extent and quality of a 

defendant's cooperation. 

The First Circuit Court of Appeals has also examined the 

duty of a sentencing judge when considering a departure 

for substantial assistance under S 5K1.1. In United States v. 

Mariano, 983 F.2d 1150 (1st Cir. 1993), the appellants 

argued that the District Court had confused the legal 

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 examined the 

proper standard under S 5K1.1. In so doing, the Court of 

Appeals initially noted that a district court has wide 

 9 
discretion 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 assistance 

inquiries." Id. at 1156. As such, the court instructed that 

"[a] district court, faced with a section 5K1.1 motion, must 

at a bare minimum indicate its cognizance of these factors." 

Id. (emphasis added). 

We agree with the approach taken in the First Circuit. 

Thus, we hold that when considering a departur e for 

substantial assistance, a sentencing court not only must 

conduct a qualitative, case-by-case analysis but also 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, indicate his 

or her consideration of S 5K1.1's five factors in determining 

whether and to what extent to grant a sentencing 

reduction. Further, a sentencing judge must indicate his or 

her consideration of any factors outside those listed in 

S 5K1.1. We strongly urge sentencing judges to make

specific findings regarding each factor and articulate 

thoroughly whether and how they used any pr offered

evidence to reach their decision. In sum, it is incumbent 

upon a sentencing judge not only to conduct an 

individualized examination of the defendant's substantial 

assistance, but also to acknowledge S 5K1.1's factors 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, 213 (3d 

Cir. 2000), "the responsibility confr onting a district court 

judge when he or she sentences a convicted defendant is an 

awesome one." In that case, we held that in or der to ensure 

fairness, a judge must render a sentence in the defendant's 

presence. See id. We reasoned that it was not unlikely that 

a judge may enter court with an abstract attitude about the 

appropriate sentence, only to alter that mind-set when 

faced with a live human being in open court. Accor dingly, 

imposing a sentence merely by written judgment is 

forbidden. See id. 

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

factors similarly ensures that a sentencing judge is meeting 

his or her solemn duties in the most responsible way 

possible. Specifically, this requirement assures that a 

sentencing decision is made with solicitude, because it 

"encourages the judge to clarify and justify, in his own 

mind, the grounds for the sentence he chooses." United 

States v. Bazzano, 570 F.2d 1120, 1134 (3d Cir. 1977) 

(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 eases in 

detail and thoroughness. This careful appr oach is essential 

where even minor differences in the length of a sentence of 

confinement can have an enormous impact on a defendant. 

Moreover, justifying a sentencing decision by including a 

discussion of S 5K1.1's factors reinfor ces the dignity of the 

accused. It acknowledges that he or she is worthy of such 

an explanation. See id. at 1134. In many cases this

requirement may be of "therapeutic worth to a defendant." 

Dorszynski v. United States, 418 U.S. 424, 456 (1974) 

(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 holding 

would contravene both the very language of S 5K1.1 and 

our jurisprudence. Indeed, we encourage district courts to 

consider all relevant facts and factors in r eaching their 

decisions. The preface to S 5K1.1's enumerated list states 

that "[t]he appropriate reduction shall be determined by the 

court for reasons that may include, but ar e not limited to, 

consideration of the following . . . ." U.S. S ENTENCING 

GUIDELINES MANUAL S 5K1.1 (1999). In addition, S 5K1.1's 

Background Commentary provides that "[l]atitude is,

therefore, afforded a sentencing judge to reduce a sentence 

based upon variable relevant factors, including those listed 

above." Id. at cmt. background. Consistent with this 

language, in United States v. Casiano, 113 F .3d 420, 428 

(3d Cir. 1997), we stated that "the bases for substantial 

assistance departures are not meant to be exhaustive, they 

are instructive." Thus, we held that a district court's 

 11 
consideration 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 discretion. See 

id. at 431. 

Other Courts of Appeals have similarly interpr eted

S 5K1.1. For example, in United States v. Carnes, 945 F.2d 

1013, 1014 (8th Cir. 1991), the Eighth Cir cuit Court of 

Appeals held that a district could weigh the assistance 

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 considering 

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 district court's 

comparison 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. Alvarez, 51 F.3d 

36, 41 (5th Cir. 1995) ("[T]he decision as to the extent of the 

departure is committed to the almost complete discretion of 

the district court, which may consider factors beyond the 

narrower set that could independently support a departure 

in the first instance."); Mariano, 983 F.2d at 1156-57 ("Even 

if the five factors enumerated in section 5K1.1 weigh in a 

defendant's favor, the district court may, on the basis of 

other considerations . . . decide to forego or curtail a 

downward departure for substantial assistance."). 

Applying this standard to the present case, we conclude 

that the District Court, although marginally, met its burden 

under S 5K1.1. The transcripts of the sentencing hearing 

reveal that the Court heard and consider ed arguments that 

covered each factor enumerated in the Guidelines, and 

apparently read the government's letter. Although the Court 

failed to articulate the details of Torr es's substantial 

assistance when announcing its ruling, we ar e satisfied 

that it weighed S 5K1.1's factors nonetheless. Specifically, 

the Court stated, "[t]he motion for S 5K1.1 is granted. It's 

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

recommendation for such being made by the United States 

Attorney arising out of what appeared to be a successful 

investigation and prosecution of law enfor cement officers 

. . . ." 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 against his 

substantial efforts to assist the gover nment's investigation. 

The Court stated: 

 We have heard what he has said. W e have heard what 

 his attorney has said with regard to this apparent 

 rehabilitation of Mr. Torr es. However, it remains that 

 Mr. Torres, nevertheless, committed a serious 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 to 

 disappear because of the subsequent cooperation with 

 the Government, nevertheless, even though, according 

 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, we 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 background 

commentary and case law interpreting them, impose a

weighty obligation on a sentencing judge to articulate the 

reasons for a particular downward departur e. This 

obligation assumes even greater vitality in situations, like 

_________________________________________________________________ 

3. We note, however, that in the absence of the oral colloquy immediately 

prior to the District Court's ruling, the District Court's remarks would 

fall well short of our requirement that a sentencing judge weigh and 

discuss S 5K1.1's factors when presented with a motion for substantial 

assistance. 

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

extent of the cooperation may, at first blush, appear 

incongruous. The District Court chose to depart downward 

by only one month from the twelve to eighteen month

Guideline range applicable to Torres, in spite of the 

government's letter brief forcefully commending his

cooperation, which during its five-year duration ultimately 

helped to net thirty criminal convictions, and in spite of 

Torres's attorney's description of the threats Torres 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 assistance," "the 

timeliness of the defendant's assistance," and"the 

government's evaluation of the assistance r endered" in 

making its departure decision, and should articulate 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 stress that 

a sentencing court would be best served by car efully 

reciting on the record the factors it evaluated in arriving at 

its S 5K1.1 departure decision, and the manner in which it 

weighed those factors. 

2. 

Torres further argues that the District Court employed a 

"sentencing practice." In support, he points to the following 

comments by the District Court: 

 How much should be given for one who admittedly is 

 a criminal? How much consideration does the 

 Government want me to give to one who is admittedly 

 a criminal? 

 . . . . 

 You see the thing is, you have to for give me, I'm 

 somewhat cynical after all these years of epiphanies 

 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 defendants for 

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

misgivings about defendants' cooperation, irr espective of 

the nature and degree of their assistance. Every party to 

every court proceeding has the right to an impartial 

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 sentence 

of "one who is admittedly a criminal." Congr ess specifically 

directed the Sentencing Commission to 

 assure that the guidelines reflect the general 

 appropriateness of imposing a lower sentence than 

 would otherwise be imposed . . . to take into account 

 a defendant's substantial assistance in the 

 investigation or prosecution of another person who has 

 committed an offense. 

28 U.S.C. S 994(n) (1998) (emphasis added). Thus, Congress 

has deemed a convicted defendant's meaningful assistance 

in the administration of justice between appr ehension and 

sentencing worthy of an adjustment in his or her sentence. 

Section 5K1.1 of the Guidelines reflects this judgment. 

Accordingly, the fact that a defendant "is admittedly a 

criminal" has no bearing on whether a S 5K1.1 motion is 

granted or denied. We must remember that at this point in 

the proceedings (sentencing), all defendants are criminals. 

A sentencing judge's own aversion to lowering the sentence 

of a convicted defendant for substantial assistance is 

simply irrelevant. Like it or not, the Guidelines not only 

permit a defendant's assistance in the investigation 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 believe the 

District Court came perilously close to violating this 

obligation. 

Despite these comments, however, we ar e convinced that 

the District Court's decision relied upon valid grounds 

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. Indeed, at 

no point did the sentencing judge state that it was"his 

 15 
practice" to depart downward one month for substantial 

assistance. Cf. King, 53 F.3d at 590-91. Rather, he weighed 

the seriousness of Torres's offense against the government's 

detailed presentation of his conduct in r elation to S 5K1.1. 

This examination and discussion belies Torr es's contention 

that the sentencing judge employed a sentencing practice, 

rather than engaging in a qualitative, case-by-case analysis. 

Accordingly, we find no error with the District Court'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 of an 

illegal gambling enterprise. 

B. 

Torres also argues that the District Court improperly 

applied the Guidelines when it announced the extent of his 

departure in terms of months rather than offense levels. 

Further, he argues that the District Court misunderstood 

the legal standard for imparting a sentencing r eduction 

under S 5K1.1 and thus applied it impr operly and in 

violation of the law. We reject both of these arguments. 

With respect to Torres's contention that the District 

Court committed a legal error by not announcing its

sentencing reduction in terms of of fense levels, neither the 

Sentencing Reform Act nor the Guidelines contain such a 

requirement. Here, the District Court reduced Torres's 

sentence by one month. Under the Sentencing Guidelines, 

a departure measured in months is easily translated into 

offense levels. See U.S. SENTENCING GUIDELINES MANUAL ch. 3, 

pt. A (1999). Accordingly, the District Court's failure to 

announce Torres's reduction in ter ms of offense levels was 

not a legal error. 

Torres also argues that the District Court misunderstood 

the legal standard for imposing a S 5K1.1 downward 

departure for substantial assistance and thus imposed the 

standard in violation of the law. Torr es bases this argument 

on a single statement by the District Court at sentencing. 

Specifically, he focuses on the statement, "[a]nd that 

explains to you, Mr. Torres, why I believe you should be 

sentenced to jail and I do sentence you to jail because we 

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have granted you a departure." J.A. at 100 (emphasis 

added). Torres argues that this statement reflects the 

District Court's erroneous belief that it was r equired to 

sentence him to jail because it granted him a downward 

departure under S 5K1.1. 

When read in its entirety, the recor d of the sentencing 

hearing provides adequate assurance that the sentencing 

judge properly understood his authority underS 5K1.1, and 

recognized he could sentence Torr es to probation rather 

than jail. For example, prior to the statement at issue, the 

sentencing judge stated: "[n]ow the extent of the 

punishment can readily be tempered by the grant, which I 

do, of the motion 5K1.1. But I am not placing him on 

probation. By no stretch of the imagination am I placing 

him on probation because what he did cannot just be

forgotten . . . because of subsequent cooperation with the 

Government . . . ." Id. at 100. These remarks make clear 

that the court was fully aware of its legal authority to 

impose a probationary sentence, but declined to do so 

because of the seriousness of Torres's of fense. This 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 erred 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 respect 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 range, or (4) 

was imposed when there is no applicable guideline and is 

plainly unreasonable. 18 U.S.C. S 3742(a). Thus, where the 

sentence was lawfully imposed and is within the applicable 

Guideline range, we lack jurisdiction to review the

sentence. See United States v. Graham, 72 F .3d 352, 358 

n.8 (3d Cir. 1995). 

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

bases for appealing his sentence. Rather, he is merely 

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 qualitative, factspecific analysis but also must expressly indicate its 

recognition of S 5K1.1's factors. W e hold that the District 

Court minimally satisfied this standard by considering the 

government's extensive presentation of T orres's substantial 

assistance, which addressed each of S 5K1.1's five factors. 

Torres's additional allegations of err or are without merit, 

and we are without jurisdiction to review the District 

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 

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