United States v. Torres

Opinions of the United
2001 Decisions 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Precedential or Non-Precedential: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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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 six-
page 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, fact-
specific 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 co-
defendants 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 self-
confessed, 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, fact-
specific 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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