United States v. Rudys Torres

• Court: Court of Appeals for the Third Circuit
• Decided: May 2, 2025
• Docket: 24-1042
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 24-1042 _______________

UNITED STATES OF AMERICA

v.

RUDYS OSVALDO TORRES, Appellant _______________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 3:22-cr-00004-001) District Judge: Honorable Stephanie L. Haines _______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 14, 2025 _______________

Before: CHAGARES, Chief Judge, SCIRICA and RENDELL, Circuit Judges

(Filed: May 2, 2025) _______________

OPINION * _______________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Chief Judge.

Rudys Osvaldo Torres was sentenced to 84 months of imprisonment after he pled

guilty to unlawful reentry into the United States. His attorneys have filed a motion to

withdraw under Anders v. California, 386 U.S. 738 (1967). For the reasons below, we

will grant the motion and affirm the judgment of sentence.

I. 1

Torres is a citizen of the Dominican Republic and was once a lawful permanent

resident of the United States. In 2006, however, Torres was removed to the Dominican

Republic after he was convicted of kidnapping and possession of a controlled substance.

Torres returned to the United States in less than a year, only to be convicted of drug-

related offenses, imprisoned, and then removed to the Dominican Republic. Torres

returned to the United States once more and was again convicted of drug-related offenses.

A grand jury returned an indictment on February 8, 2022, charging Torres with

unlawful reentry into the United States. Torres entered a guilty plea, without a plea

agreement, to one count of unlawful reentry in violation of 8 U.S.C. § 1326(a), which

carries a maximum term of imprisonment of twenty years for defendants who were

previously removed “subsequent to a conviction for commission of an aggravated

felony.” 8 U.S.C. § 1326(b)(2). As English is not Torres’s native language, he was

provided a Federal Court Interpreter for his plea hearing, at which he attested to the

1 We write primarily for the parties, and so we recite only the facts necessary to decide the case.

2 District Court that he was satisfied with his defense counsel, understood the potential

penalties he faced, and was guilty of the offense with which he was charged.

The presentence investigation report (“PSR”) provided that Torres’s recommended

term of imprisonment was 84 to 105 months under the United States Sentencing

Guidelines (“Guidelines”), based on an offense level of 25 and criminal history category

of IV. The District Court adopted the conclusions of the PSR after considering Torres’s

objection to the calculation of his criminal history category.

Torres was provided an opportunity to speak to the District Court at his sentencing

hearing. After eight family members stood at the podium to speak in support of Torres,

defense counsel “call[ed]” Torres to do the same, telling him: “[T]his is your opportunity

now to speak with the judge. What would you like to tell her?” Appendix (“App.”) 114.

Though an interpreter was available, Torres chose to speak in English to the District

Court. See id. (“I would like to speak in English myself.”). The District Court thanked

Torres for his testimony, heard defense counsel’s argument for a downward variance,

analyzed the sentencing factors listed in 18 U.S.C. § 3553(a), and sentenced Torres to a

term of imprisonment of 84 months. The District Court advised Torres’s attorneys that

they were “expected to continue to represent him on any appeals.” App. 128.

The District Court entered its judgment of sentence on December 12, 2023.

Torres filed a pro se notice of appeal, which bears a handwritten date of December 26,

2023, but bears postmarks dated December 28 and December 29. Torres’s counsel now

seeks to withdraw because there is no viable basis for appeal. The Government agrees.

3 II. 2

Under Anders, defense counsel may — after finding an appeal “to be wholly

frivolous” after careful examination of the record — file a brief so “advis[ing] the court

and request[ing] permission to withdraw.” 386 U.S. at 744. A “bare conclusion” from

counsel is “not enough.” Id. at 742. Rather, this Court must consider “(1) whether

counsel adequately fulfilled the requirements of Third Circuit Local Appellate Rule

109.2(a), and (2) whether an independent review of the record presents any nonfrivolous

issues.” Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114 (3d Cir. 2012) (cleaned

up). “We exercise plenary review to determine whether there are any such issues” and

review factual findings for clear error. Id. Forfeited issues, however, are reviewed for

plain error. See United States v. Brito, 979 F.3d 185, 189 (3d Cir. 2020).

The withdrawing counsel’s brief must “satisfy the court that counsel has

thoroughly examined the record in search of appealable issues” and “explain why the

issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). An

appeal is frivolous if it “lacks any basis in law or fact.” McCoy v. Ct. of Appeals of Wis.,

Dist. 1, 486 U.S. 429, 438 n.10 (1988). If “the Anders brief initially appears adequate on

its face,” the second step of our inquiry is guided “by the Anders brief itself.” Youla,

241 F.3d at 301. “[A] complete scouring of the record” is unnecessary. Id.

Although the Anders brief in this case is facially adequate, for the sake of

2 The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction to review Torres’s conviction and sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

4 completeness we will take note of one issue raised by the Government in addition to

those identified by Torres’s counsel. Torres’s counsel has identified two areas for

review: (1) whether Torres’s guilty plea was valid, and (2) whether Torres’s within-

Guidelines sentence was procedurally and substantively reasonable. The Government

identifies a third potential issue: whether it was reversible error for Torres’s counsel to

prompt his allocution instead of the District Court “personally address[ing]” him as

required under Federal Rule of Criminal Procedure 32. United States v. Ward, 732 F.3d

175, 182 (3d Cir. 2013). Torres filed a pro se brief in response, raising various

jurisdictional and constitutional challenges to his conviction and sentence.

First, we address a threshold issue regarding the potential untimeliness of Torres’s

appeal. Torres’s deadline to appeal was December 26, 2023, see Fed. R. App. P. 4(b)(1),

but his notice of appeal was not filed with the District Court until January 4, 2024. And

while the handwritten date on Torres’s notice of appeal indicates that it was timely sent

from jail, the prison mailbox rule requires either a declaration or postmarking indicating

that the notice was “deposited in the institution’s internal mail system on or before the

last day for filing.” Fed. R. App. P. 4(c)(1). Torres did not file a declaration, and the

postmarks on his envelope are dated after the deadline, which raises doubts as to whether

his appeal is timely. But Rule 4(b)’s time limit for filing a criminal appeal is “not

jurisdictional,” United States v. Muhammud, 701 F.3d 109, 111 (3d Cir. 2012), and here

“the government declines to seek dismissal” on that basis, Gov’t Br. 2. There is thus no

issue as to our appellate jurisdiction and we will not dismiss the appeal for untimeliness.

Second, we conclude that Torres’s plea was valid. Because Torres did not

5 challenge the validity of his guilty plea in the District Court, we review this issue for

plain error. United States v. Agarwal, 24 F.4th 886, 891 (3d Cir. 2022). There is no error

to be found. Before accepting Torres’s guilty plea, the District Court advised Torres of

his constitutional rights, the elements of the charged offense, the potential penalties he

faced, the immigration consequences of his plea, and his appellate rights. Torres was

provided with the services of a qualified translator, was represented by counsel, and

affirmed under oath that he understood the nature of the charge he faced and the

consequences of admitting guilt. The District Judge, moreover, acted with commendable

thoughtfulness and caution during the plea colloquy, repeating herself when asked, and

even re-reading the indictment to Torres just “to make sure [he was] fully aware of the

offense to which [he] intend[ed] to plead guilty.” App. 70. Nothing more was required.

See United States v. Schweitzer, 454 F.3d 197, 202–03 (3d Cir. 2006); Fed. R. Crim. P.

11. We therefore agree with Torres’s counsel and the Government that there is no issue

of possible merit as to the validity of Torres’s plea.

Third, the District Court imposed a reasonable sentence. We review the

reasonableness of a sentence for abuse of discretion and will affirm unless no reasonable

court would have imposed such a sentence. United States v. Tomko, 562 F.3d 558, 567–

68 (3d Cir. 2009) (en banc). A sentencing court must follow three procedural steps:

(1) calculate the appropriate Guidelines range; (2) rule on any departure motions; and

(3) exercise discretion by considering the relevant 18 U.S.C. § 3553(a) factors. See

United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc). We discern

no procedural or substantive errors. The District Court considered submissions and

6 argument from the Government, defense counsel, Torres, and Torres’s family. It

correctly calculated the Guidelines range, it did not have to address departure motions

because there were none, and it addressed each of the Section 3553(a) factors. The

District Court imposed a sentence of 84 months, which is on the low end of the

Guidelines range and well below the statutory maximum of twenty years. This sentence

was reasonable in light of Torres’s history of prior removals, each of which was preceded

by serious unlawful conduct within the United States.

Fourth, although a technical error occurred at allocution, there is no non-frivolous

argument that the error is reversible. We review this issue for plain error because there

was no objection to the allocution procedure in the District Court. See Puckett v. United

States, 556 U.S. 129, 135 (2009). Under Federal Rule of Criminal Procedure 32, the

District Court must “address the defendant personally in order to permit the defendant to

speak or present any information to mitigate the sentence.” Fed. R. Crim. P.

32(i)(4)(A)(ii); accord Ward, 732 F.3d at 181. At Torres’s sentencing, however, it was

his own counsel, rather than the District Court, that prompted his allocution. The District

Court’s failure to issue Torres “a personal invitation to speak prior to sentencing” was

error. United States v. Greenspan, 923 F.3d 138, 156 (3d Cir. 2019) (quoting Green v.

United States, 365 U.S. 301, 305 (1961)). “And the error was obvious on the face of the

record, so it was plain.” Id. But even if this Court were to presume — as it has done in

some circumstances — that this allocution error was prejudicial, e.g., United States v.

Adams, 252 F.3d 276, 287 (3d Cir. 2001), there is no colorable argument that it satisfies

the fourth prong of plain error review: an error that “seriously affects the fairness,

7 integrity or public reputation of judicial proceedings,” United States v. Olano, 507 U.S.

725, 736 (1993). Torres spoke to the District Court at length before he received his

sentence, discussing his remorse, commitment to following the law, concerns of losing

his family, and request for mercy. The goals of allocution were clearly fulfilled, see

Ward, 732 F.3d at 181, and there is no non-frivolous argument that the fairness of

Torres’s sentencing was seriously affected merely because his own counsel happened to

initiate the allocution.

Finally, Torres’s arguments for vacating his conviction or sentence are frivolous.

Torres argues that the District Court lacked jurisdiction, that the indictment was

defective, that the statute of conviction was unconstitutional for lacking a nexus to

interstate commerce, and that Title 18 of the U.S. Code is unconstitutional. None of

these arguments were raised below, and all four of them fail. In short, there is no dispute

that: (1) federal courts have subject matter jurisdiction over immigration offenses and

this District Court had personal jurisdiction over Torres; (2) Torres waived his

challenges to non-constitutional defects in the indictment by entering an unconditional

guilty plea, United States v. Porter, 933 F.3d 226, 229–30 (3d Cir. 2019); (3) Congress’s

immigration authority has long been understood as “plenary,” Kleindienst v. Mandel,

408 U.S. 753, 765–66 (1972), and “an incident of sovereignty,” Chae Chan Ping v.

United States, 130 U.S. 581, 609 (1889), not dependent on Congress’s power to regulate

interstate commerce; and (4) this Court has no reason to consider the constitutionality of

Title 18 of the U.S. Code in this case because Torres’s offense is defined in Title 8.

In sum, we conclude that counsel has fulfilled the requirements of Anders by

8 making a thorough examination of the record. We have independently reviewed the

record and do not identify any non-frivolous issues on direct appeal.

III.

For the foregoing reasons, we will grant counsel’s motion to withdraw and will

affirm the District Court’s judgment of sentence. In addition, we certify that the issues

presented lack legal merit and that counsel is not required to file a petition for a writ of

certiorari with the Supreme Court. 3d Cir. L.A.R. 109.2(b) (2011).