United States of America v. Ivan Torres

* Honorable Milton I. Shadur, United States District Judge for the Northern District
of Illinois, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-1548
____________
UNITED STATES OF AMERICA
v.
IVAN TORRES,
Appellant
___________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Case No. 98-cr-00362-B
District Judge: The Honorable Louis H. Pollak
___________________
Submitted pursuant to Third Circuit L.A.R. 34.1(a) on July 11, 2005
Before: ALITO and BECKER, Circuit Judges, and SHADUR, District Judge*
(Filed: August 12, 2005)
____________________
OPINION OF THE COURT
____________________

-- 1 of 3 --

-2-
PER CURIAM:
Due to Ivan Torres’s substantial assistance in the investigation and prosecution of
other criminals, the government filed a motion pursuant to U.S.S.G. § 5K1.1 and 18
U.S.C. § 3553(e) to permit the District Court at sentencing to depart from the otherwise
applicable sentencing guidelines range and the otherwise applicable mandatory minimum
sentence of life imprisonment. On February 23, 2004, the District Court held a
sentencing hearing. At the hearing the District Court granted the government’s
downward departure motion and sentenced Torres to 25 years of imprisonment. Torres
filed a timely notice of appeal to this Court on March 1, 2004.
All the briefs in this case were drafted before January 2005, when the Supreme
Court issued its opinion in United States v. Booker, 543 U.S. ----, 125 S.Ct. 738 (2005).
In Booker, the Court held that “we must apply today’s holdings – both the Sixth
Amendment holding and our remedial interpretation of the Sentencing Act – to all cases
on direct review.” 125 S.Ct. at 769 (Breyer, J.). Having determined that the sentencing
issues here are best determined by the District Court in the first instance, we vacate the
sentence and remand for re-sentencing in accordance with Booker. See generally United
States v. Davis, 407 F.3d 162 (3d Cir. 2005).
Because we remand for re-sentencing, we need not address Torres’s argument that
the District Court’s departure should have been greater. We note, however, that this
Court has already held that it lacks jurisdiction to review the extent of a district court’s

-- 2 of 3 --

-3-
downward departure. See United States v. Khalil, 132 F.3d 897, 898 (3d Cir. 1997)
(“[B]ecause ‘we did not have jurisdiction to entertain an appeal when the district court
refused to exercise its discretion to depart downward from the guidelines,’ it surely
follows that we could not possibly have jurisdiction to hear an appeal by a defendant
where there has been some exercise of the court’s discretion to depart downward.”)
(citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990).
Accordingly, we affirm Torres’s judgment of conviction but vacate his sentence
and remand for re-sentencing.

-- 3 of 3 --