United States v. Crispin Torres, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2022
• Docket: 21-50074
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-50074

Plaintiff-Appellee, D.C. No. 3:20-cr-02114-LAB-1 v.

CRISPIN TORRES, JR., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted March 10, 2022** Pasadena, California

Before: IKUTA, LEE, and FORREST, Circuit Judges.

Defendant Crispin Torres appeals from his 48-month sentence for conspiracy

to commit securities fraud arising from his involvement in a large Ponzi scheme. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1. Guideline range. Under § 2B1.1(a)(2) of the United States Sentencing

Guidelines,1 the correct base offense level was six, not seven. Although the district

court erred in calculating the offense level, as the parties agree, it was harmless

because § 5G1.1 would have reduced the Guideline range to the statutory maximum

of 60 months either way. See United States v. McCarns, 900 F.3d 1141, 1145 (9th

Cir. 2018) (applying harmless error review to mistakes made in Guidelines

calculations); United States v. Leal-Vega, 680 F.3d 1160, 1170 (9th Cir. 2012)

(same). Thus, the district court did not plainly err because the error did not affect

Torres’s substantial rights or seriously affect the proceedings. See Puckett v. United

States, 556 U.S. 129, 135 (2009).

2. Downward Departure and Variance. For the first time on appeal, Torres

argues the district court erroneously relied on its miscalculated Guideline range of

97–121 months as the benchmark for declining to grant any further downward

departures or variances. The district court did not err in failing to identify the correct

sentencing benchmark, because the record demonstrates that the district court

understood that the statutory maximum of 60 months was the benchmark. Torres’s

reliance on United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) is therefore

misplaced, as the district court in that case failed to recognize the correct guideline

1 All citations to “section” or “§” are to the United States Sentencing Commission, Guidelines Manual, (Nov. 2021), unless otherwise noted.

2 range, see id. at 181. Even assuming this was error, it was not plain error because

Torres has not shown a “reasonable probability” that the district court would have

imposed a different sentence in the absence of the error. United States v. Bautista,

989 F.3d 698, 702 (9th Cir. 2021) (internal quotation marks and citation omitted);

United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).

The record shows that the sentence imposed was intended to reflect the nature

and characteristics of Torres’s crime. See United States v. Mohamed, 459 F.3d 979,

985 (9th Cir. 2006) (holding that a district court can vary from a Guideline range

and impose a higher sentence in consideration of the factors set forth in 18 U.S.C. §

3553). The district court properly referenced and considered relevant conduct that

occurred before Torres entered into the plea bargain in determining his sentence. See

United States v. Nakagawa, 924 F.2d 800, 804 (9th Cir 1991) (holding that a district

court did not err at sentencing by considering “aspects of [the defendant’s] offense

that were not specified in the information to which he pled guilty.”). The district

court clearly understood that a high end of 60 months was the starting point for

applying the § 5K1.1 departure and explicitly calculated the 60-month sentence

before “turn[ing] to the 3553 factors.” The district court also emphasized that it was

concerned about the scope of the Ponzi scheme and the number of victims and

amount of loss involved and that it believed that the parties’ sentencing

recommendations minimized Torres’s involvement. We find no reversible error.

3 3. Eighth Amendment. Finally, Torres argues that his sentence violates the

Eighth Amendment because of his health conditions and his minor role in the crime.

“A sentence which is within the limits set by a valid statute may not be overturned

on appeal as cruel and unusual.” United States v. Harris, 154 F.3d 1082, 1084 (9th

Cir. 1998) (quotations and citation omitted); United States v. Washington, 578 F.2d

256, 258 (9th Cir. 1978). Here, the crime of conviction carried a five-year maximum

sentence, and Torres received a 48-month sentence—12 months below the statutory

maximum. See 15 U.S.C. § 77x. Therefore, there is no Eighth Amendment violation.

See Washington, 578 F.2d 256, 258.

AFFIRMED.