United States of America v. Francisco Torres

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 22, 2007
Decided February 28, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2461
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCISCO TORRES,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 04 CR 30154
William D. Stiehl,
Judge.
ORDER
Francisco Torres pleaded guilty without a plea agreement to drug dealing
charges involving at least 12,000 doses of a methylene-based drug commonly known
as “Ecstasy.” See 21 U.S.C. §§ 841(a)(1), 846. The district court calculated a
guidelines range of 235 to 293 months’ imprisonment, but adjusted the range to 235
to 240 months to reflect the statutory maximum. See 21 U.S.C. § 841(b)(1)(C). The
court then sentenced Torres to 235 months. On appeal, he asserts that the district
court erred by (1) presuming that a sentence within the guidelines was reasonable,
(2) finding that the guidelines range did not account for Torres’s prior juvenile
offense and that it was therefore an “aggravating factor,” and (3) failing to take into
account the full extent of Torres’s “mental illness.” We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-2461 Page 2
Torres was arrested for his role in a drug operation in which he obtained
Ecstasy from a supplier in New York and transported it to Belleville, Illinois for
distribution. His co-conspirators included, among others, his mother Estelle Torres
and his older sister Venise Torres, both of whom pleaded guilty and were sentenced
to 37and 70 months’ imprisonment, respectively. Torres pleaded guilty to conspiring
to distribute and possess approximately 12,000 dosage units of Ecstasy between
November 2002 and April 2004.
Prior to pleading guilty, Torres underwent two court-ordered psychological
examinations. The first examination was performed by Maureen Burris, a Bureau of
Prisons psychologist in Los Angeles. She diagnosed Torres with polysubstance
dependence and antisocial personality disorder, but concluded that he was competent
to stand trial. Dr. Burris’s report noted that Torres had an extensive history of
substance abuse beginning in childhood with alcohol and marijuana, and
progressing into adulthood with PCP, heroin, cocaine, Ecstasy, methamphetamine,
and hallucinogens. She also reported Torres’s claim that his father committed
suicide, his mother frequently abused alcohol and drugs when he was growing up,
and he underwent mental health treatment as a child for “fits of rage.”
The second psychological examination was performed several months later by
William Ryan, a BOP psychologist in New York. He concurred with Dr. Burris that
Torres suffered from polysubstance dependence and antisocial personality disorder,
and that he was nonetheless competent to stand trial. Dr. Ryan also diagnosed
Torres with depression in partial remission and stress due to his arrest and
incarceration. Dr. Ryan further noted that Torres claimed that his mother
physically abused him and his sisters and that he was placed in foster care on a
number of occasions.
At sentencing, the district court adopted the presentence report’s calculation
of a guidelines range of 235 to 293 months’ imprisonment and its adjustment of the
range to 235 to 240 months to reflect the statutory maximum. The court then
sentenced Torres to 235 months. In formulating the sentence, the court noted that it
considered the two psychological reports, the sentencing hearing testimony of a
postal service inspector concerning the drug conspiracy, Torres’s allocution, the
arguments of counsel for Torres and the government, and other evidence including a
letter of support from a family member. The judge noted Torres’s “substantial
criminal history beginning at an early age, and some of which involved violent
crimes.” In addition, the judge observed that Torres has a propensity for violence (as
evidenced by an armed robbery conviction as a juvenile), a tendency to malinger
when it suits him, an antisocial personality disorder, and a drug problem. In
mitigation, the court noted that Torres lacked adequate moral support from his
family while growing up, and that some family members participated in the drug
conspiracy with Torres. In imposing a sentence at the bottom of the guidelines

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No. 06-2461 Page 3
range, the court stated it believed the sentence served the purposes of 18 U.S.C.
§ 3553(a) by punishing Torres and acting as a deterrent to others, while also
protecting society for a substantial period of time.
On appeal, Torres first asserts that the district court erred by presuming that
a sentence within the guidelines range was reasonable. Specifically, Torres contends
that the judge’s statement “I do not believe that there are sufficient grounds for me
to depart downward from the guideline range” indicates that the judge “erroneously
presumed that a Guidelines sentence was the appropriate sentence.”
A sentence that falls within the guidelines range is presumed reasonable on
appellate court review. United States v. Mykytiuk, 415 F.3d 606, 607–08 (7th Cir.
2005). To comport with United States v. Booker, 543 U.S. 220 (2005), a district judge
need only “consider the guidelines and make sure that the sentence he gives is
within the statutory range and consistent with the sentencing factors listed in 18
U.S.C. § 3553(a).” United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006).
Here, Torres puts form over substance by arguing that the district judge’s
refusal to “depart downward” demonstrates that the judge believed himself
presumptively obligated to impose a sentence within the guidelines. The sentencing
transcript refutes Torres’s claim. The judge explained that his sentencing
determination was based on Torres’s extensive criminal history, propensity for
violence, antisocial personality disorder, drug problem, tendency to malinger, and
troubled childhood. The judge also referenced the need to punish Torres, deter
others, and protect the public. Rather than indicating a “presumption” to sentence
within the guidelines, the transcript shows that the district judge based the sentence
on Torres’s history and personal characteristics and the need to provide just
punishment for a serious offense. Thus, the district court properly considered the
§ 3553(a) factors, rather than a presumption of reasonableness, in imposing a
sentence.
Next, Torres argues that the district court erred by finding that the guidelines
range did not adequately take into account his prior juvenile offense and thus,
Torres contends, the court improperly considered the offense as an additional
“aggravating factor” in sentencing.
The sentencing guidelines do not include juvenile convictions in the
calculation of a defendant’s criminal history if more than five years have passed
since the sentences for those offenses were imposed. See U.S.S.G. § 4A1.2(d)(2).
However, during the pre-Booker era of “departures,” a district judge could consider
juvenile offenses indirectly during sentencing as part of the larger picture, including
as evidence of a pattern of recidivism or criminal violence. United States v. Spears,
159 F.3d 1081, 1088 (7th Cir. 1998); United States v. Croom, 50 F.3d 433, 435 (7th

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No. 06-2461 Page 4
Cir. 1995). Now that the sentencing discretion of district judges has increased after
Booker, United States v. Gama-Gonzales, 469 F.3d 1109, 1110 (7th Cir. 2006), those
judges may continue to consider juvenile offenses for this purpose.
Here, Torres does not contend that the district court used his juvenile
conviction to increase his criminal history. Rather, he seems to argue that the
district court was forbidden to consider the juvenile conviction in the § 3553(a)
evaluation, and had it so refrained, it would have imposed a below-guidelines
sentence. The court commented that Torres “did have an armed robbery conviction
as a juvenile and does have – has had, I should say, the propensity for violence.”
This shows that the court considered his juvenile conviction as evidence of a
recidivism and a propensity for violence—proper considerations both before Booker
and, with sentencing discretion now augmented, after Booker as well. In short,
because “the history and characteristics of the defendant” are proper considerations
under § 3553(a)(1), this was a reasonable exercise of the district court’s discretion.
Finally, Torres asserts that the district court failed to take into account the
full extent of his “mental illness.” Specifically, Torres argues that the court failed to
“consider the possibility” that his malingering was “actually a cry for help” and failed
to consider his diagnosis of depression or his “history of mental illness” dating back to
sixth grade when he was “less likely to be malingering.”
In exercising its sentencing discretion, the district court need only consider
the relevant § 3553(a) factors and related arguments of the parties. See United
States v. Cunningham, 429 F.3d 673, 675–76, 678 (7th Cir. 2005). Disagreement
with the district court’s assessment of the relevant factors does not alone merit
reversal. United States v. Laufle, 433 F.3d 981, 988 (7th Cir. 2006).
Here, the district court adequately considered the § 3553(a) factors. The court
heard arguments from Torres’s counsel, who emphasized Torres’s drug dependence
and mental health history in mitigation. In explaining its sentencing
determination, the court explicitly noted that it had read the psychological
reports—both of which discussed Torres’s drug dependence, malingering, and mental
health history in detail. The court also noted Torres’s drug problem and the desire
that he obtain help while in prison The fact that the district court did not give these
factors the favorable weight that Torres desired does not demonstrate that the court
failed to consider the factors or that its assessment of them was unreasonable.
Laufle, 433 F.3d at 988.
AFFIRMED.

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