United States v. De La Torre, Martin ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3929 & 01-3930
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Cross-Appellee,
v.
MARTIN DE LA TORRE,
Defendant-Appellee,
Cross-Appellant.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 898-1—David H. Coar, Judge.
____________
ARGUED DECEMBER 4, 2002—DECIDED MAY 1, 2003
____________
Before FLAUM, Chief Judge, and COFFEY and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. Martin De la Torre pled guilty
to various drug and money laundering counts in connec-
tion with his participation in a marijuana distribution
ring. Originally sentenced to 151 months’ imprisonment,
De la Torre asked the court to reconsider his sentence in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). The
district court granted the motion, determined that Ap-
prendi mandated a reduction in De la Torre’s sentence, and
sentenced him to concurrent sentences of 60 months on the
2 Nos. 01-3929 & 01-3930
drug counts and 71 months on the money laundering
counts. The government appeals, arguing that the resen-
tencing motion was untimely and that the new sentence
is based on an erroneous application of the Sentencing
Guidelines. De la Torre cross-appeals, challenging the
district court’s application of a firearm enhancement
and rejection of his downward adjustment request. Al-
though we find that De la Torre’s motion to reconsider
the sentence was timely, we conclude that the district
court did not properly apply the Guidelines in imposing
sentence on the money laundering counts. Therefore, we
vacate De la Torre’s sentence and remand for resentencing.
I. BACKGROUND
Martin De la Torre was charged in a 29-count indict-
ment with distributing 35 pounds of marijuana and conspir-
acy to distribute marijuana, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, as well as money laundering and
conspiracy to conduct money laundering, in violation of
18 U.S.C. §§ 1956(a)(1)(B)(I) and 1956(h). De la Torre
pled guilty to the charges, and was orally sentenced on
February 2, 2001.
During that sentencing hearing, the district court found,
by a preponderance of the evidence, that the drug con-
spiracy involved over 1000 kg of marijuana, which qualified
De la Torre for a base offense level of 32 on the drug crimes.
This was increased to 34 because De la Torre possessed
a firearm as part of the conspiracy. De la Torre’s money
laundering convictions had a base offense level of 20,
which was increased to 26 since the money was proceeds
of narcotics distribution and exceeded $350,000. The drug
and money laundering crimes were grouped without ob-
jection and the total offense level for the group was set
at 34, the highest offense level of the counts in the group.
With a Level I criminal history category and group offense
Nos. 01-3929 & 01-3930 3
level of 34, the district court found the sentencing range
for De la Torre’s “total punishment” to be 151-188 months’
imprisonment. The court orally sentenced De la Torre
to concurrent sentences of 151 months on the drug con-
spiracy and money laundering charges, and 60 months
on the marijuana distribution charge.
Two months later, on April 10, 2001, before the final
judgment order reflecting the oral sentence was entered
in the docket, De la Torre filed a Rule 35(c)1 motion to
reconsider his sentence citing Apprendi. The district court
agreed to reconsider the sentence. At resentencing, De la
Torre and the government agreed that because he pled
guilty to distributing only 35 pounds of marijuana, Ap-
prendi limited his sentence on the drug conspiracy count
to the statutory maximum for that quantity, which is 60
months’ imprisonment. However, De la Torre argued that
because the statutory maximum sentence on the drug
conspiracy count would then be lower than the sentence
on the money laundering counts (240 months), the offense
level for the money laundering counts should determine
the offense level for the group when calculating and
imposing the “total punishment.” Under this theory, the 63-
78 months sentencing range that corresponds to the money
laundering offense level of 26 was the maximum sen-
tence that could be imposed. The district court agreed,
and on September 24, 2001, orally sentenced De la Torre
to concurrent sentences of 60 months on the drug conspir-
acy count and 71 months on the money laundering counts.
The final judgment order imposing this new sentence was
entered on January 31, 2002.
1
Rule 35 was amended in 2002 as part of the general restyling
and revision of the Federal Rules of Criminal Procedure. Under
the 2002 amendments, former Rule 35(c) is now Rule 35(a). See
Fed. R. Crim. P. 35(c) Advisory Committee’s Note (2002 Amend-
ments). For the purposes of our analysis, we will refer to the
section as Rule 35(c).
4 Nos. 01-3929 & 01-3930
Both the government and De la Torre appeal. The
government asserts that the motion to reconsider was
filed too late and that the calculation of a new sentence
was erroneous. De la Torre argues that the district court
erred in applying various enhancements to his sentence.2
We address these issues in turn.
II. ANALYSIS
A. The Timeliness of the Rule 35(c) Motion
The government objects to the district court’s decision
to grant De la Torre’s Rule 35(c) motion to reconsider
the sentence, arguing that the motion was not timely
because it was filed on April 10, 2001, more than seven days
after the February 2, 2001 oral sentence. We review
de novo the question of whether the district court had
jurisdiction under the rule to grant De la Torre’s request
for relief. United States v. Wisch, 275 F.3d 620, 626 (7th
Cir. 2001).
Rule 35(c) provides that the district court, “acting within
7 days after the imposition of sentence, may correct
a sentence that was imposed as a result of arithmetical,
technical, or other clear error.” Fed. R. Crim. P. 35(c);
Wisch, 275 F.3d at 624; United States v. Clay, 37 F.3d
338, 340 (7th Cir. 1994). We have previously held that
the seven-day period for filing a Rule 35(c) motion begins
to run from the date the judgment is entered in the doc-
ket, rather than the date the sentence is orally pronounced.
Clay, 37 F.3d at 340; see also United States v. Turner, 998
2
De la Torre has not challenged the 60-month sentence on the
marijuana distribution charge.
Nos. 01-3929 & 01-3930 5
F.2d 534, 536 (7th Cir. 1993); cf. Wisch, 275 F.3d at 624.3
The Advisory Committee Notes accompanying Rule 35(c)
indicate that the rule is intended to empower sentencing
courts to correct clearly erroneous sentences within 7 days
of the formal entry of judgment. See Fed. R. Crim. P. 35(c)
Advisory Committee’s Note (1991 Amendments). This
codified then-existing case law which provided that sentenc-
ing courts retain the power to correct clearly erroneous
sentences within the time period for filing an appeal. See
id. Because the time for filing an appeal does not begin to
run until judgment is entered in the docket, see Fed. R.
App. P. 4(b), and because Clay and Turner are consistent
with the Advisory Committee’s Notes regarding Rule 35(c),
we will adhere to our earlier holdings.
3
Other circuits hold that the date the sentence is orally pro-
nounced controls. See, e.g., United States v. Morrison, 204 F.3d
1091, 1093 (11th Cir. 2000); United States v. Aguirre, 214 F.3d
1122, 1125-26 (9th Cir. 2000); United States v. Gonzalez, 163 F.3d
255, 264 (5th Cir. 1998); United States v. Layman, 116 F.3d 105,
108 (4th Cir. 1997); United States v. Abreu-Cabrera, 64 F.3d
67, 73 (2d Cir. 1995); United States v. Townsend, 33 F.3d 1230,
1231 (10th Cir. 1994); but see United States v. Morillo, 8 F.3d 864,
869 n.8 (1st Cir. 1993) (entry of judgment controls); cf. Andrew P.
Rittenberg, Comment, “Imposing” A Sentence Under Rule 35(c), 65
U. CHI. L. REV. 285 (1998) (collecting cases).
The government relies on United States v. Krilich, 257 F.3d 689(7th Cir. 2001), to support its position that the seven-day window
begins to run on the date the sentence was orally imposed.
However, as the government acknowledges, Krilich merely stated
in dicta that the district court’s resentencing hearing was
unauthorized because it was ten months after the sentence had
been originally (and orally) imposed. Furthermore, Krilich did
not address our earlier decisions in Clay and Turner and was
not circulated pursuant to Circuit Rule 40(e), which would
have indicated an intent to overrule Circuit precedent.
6 Nos. 01-3929 & 01-3930
Here, De la Torre was orally sentenced on February 2,
2001, but a final judgment order was not entered in the
docket before he filed his April 10, 2001, motion to recon-
sider. Therefore, we conclude that his motion to recon-
sider the sentence was not time-barred.
B. Imposing the “Total Punishment” on Multiple Convic-
tions
The government challenges De la Torre’s new sentence
on the grounds that it is an incorrect application of
§§ 5G1.1 and 5G1.2 of the Sentencing Guidelines, which
detail how sentences are imposed when there are multiple
counts of conviction. We review a district court’s interpreta-
tions of the Guidelines de novo. United States v. Noble, 299
F.3d 907, 909 (7th Cir. 2002); United States v. Taylor, 72
F.3d 533, 542 (7th Cir. 1995).
The Guidelines provide the general application prin-
ciples for determining a defendant’s “total punishment.” See
U.S.S.G. § 1B1.1 (2000). Under the Guidelines, the court
determines the base offense level and “appl[ies] any
appropriate specific offense characteristic . . . or special
instruction” for each separate count of conviction. Id.
§ 1B1.1(a)-(d). If there are multiple counts of conviction,
the court uses the grouping provisions of Chapter 3 to
group the various counts and determine the offense level
that applies to the group. Id. § 1B1.1(d). The court
uses the group offense level, along with the defendant’s
criminal history category, to determine the guideline range
for the “total punishment.” Id. § 1B1.1(g).
The district court properly followed the Guideline proce-
dures up to this point when it originally sentenced De la
Torre. However, the district court erred at both the sentenc-
ing and resentencing hearings in applying §§ 5G1.1 and
5G1.2 to impose sentences on the individual counts of
conviction.
Nos. 01-3929 & 01-3930 7
The Guidelines provide that once the “total punishment”
has been determined, the court must follow the implemen-
tation provisions in Part G of Chapter 5 to determine
the sentences for each count of conviction. See id.
§ 1B.1(h); United States v. Griffith, 85 F.3d 284, 289 (7th
Cir. 1996). Section 5G1.1 addresses sentencing for single
counts of conviction,4 and § 5G1.2 addresses sentencing
for multiple counts of conviction.5 The government argues
4
Section 5G1.1 provides that for sentencing on a single count
of conviction,
(a) Where the statutorily authorized maximum
sentence is less than the minimum of the applicable
guideline range, the statutorily authorized maximum
sentence shall be the guideline sentence.
(b) Where a statutorily required minimum sentence is
greater than the maximum of the applicable guideline
range, the statutorily required minimum sentence shall
be the guideline sentence.
(c) In any other case, the sentence may be imposed at
any point within the applicable guideline range, provided
that the sentence—
(1) is not greater than the statutorily autho-
rized maximum sentence, and
(2) is not less than any statutorily required
minimum sentence.
U.S.S.G. § 5G1.1.
5
Section 5G1.2 provides that for sentencing on multiple counts
of conviction,
(a) The sentence to be imposed on a count for which
the statute (1) specifies a term of imprisonment to be
imposed; and (2) requires that such term of imprison-
ment be imposed to run consecutively to any other term
of imprisonment shall be determined by that statute and
imposed independently.
(continued...)
8 Nos. 01-3929 & 01-3930
that § 5G1.1 applies only when there has been a single
count of conviction, and that § 5G1.2 controls exclusively
when there are multiple counts of conviction. We agree
with the government that § 5G1.2 is the proper starting
point, given De la Torre’s conviction on multiple counts, but
we disagree that § 5G1.2 controls exclusively because
§ 5G1.2(b) refers to and incorporates § 5G1.1 in its analysis.
See Griffith, 85 F.3d at 289. Because § 5G1.2(b) provides
that “[e]xcept as otherwise required by law (see § 5G1.1(a),
(b)), the sentence imposed on each other count shall be
the total punishment,” we must look to § 5G1.1 to deter-
mine if and how it applies to De la Torre’s convictions.
Section 5G1.1(a) provides that, for a given count of
conviction, “[w]here the statutorily authorized maximum
sentence is less than the minimum of the applicable
guideline range, the statutorily authorized maximum
sentence shall be the guideline sentence.” U.S.S.G.
§ 5G1.1(a); Griffith, 85 F.3d at 289. The applicable guide-
line range for De la Torre’s total punishment is 151-188
months’ imprisonment since his group offense level was
34. Because the statutorily authorized maximums for the
drug conspiracy count is 60 months’ imprisonment (due
5
(...continued)
(b) Except as otherwise required by law (see
§5G1.1(a), (b)), the sentence imposed on each other count
shall be the total punishment as determined in accor-
dance with [the grouping provisions in] Part D of Chap-
ter Three, and [the imprisonment provisions in] Part C
of this Chapter.
(c) If the sentence imposed on the count carrying the
highest statutory maximum is adequate to achieve the
total punishment, then the sentences on all counts
shall run concurrently, except to the extent otherwise
required by law.
U.S.S.G. § 5G1.2.
Nos. 01-3929 & 01-3930 9
to Apprendi), and 240 months’ imprisonment for the
money laundering crimes, § 5G1.1(a) applies only to the
drug conspiracy conviction. Therefore, under § 5G1.1(a), the
statutorily authorized maximum sentence of 60 months’
imprisonment is the guideline sentence for the drug
conspiracy conviction. U.S.S.G. § 5G1.1(a); Griffith, 85 F.3d
at 289.
That does not end the sentencing process, however,
because § 5G1.1 does not apply to De la Torre’s money
laundering convictions. To determine the sentence on
those counts, § 5G1.2(b) dictates that “the sentence im-
posed on each other count [not governed by § 5G1.1(a), (b)]
shall be the total punishment.” U.S.S.G. § 5G1.2(b) (empha-
sis added); Griffith, 85 F.3d at 289. Because the sentence
on the money laundering counts “shall be the total punish-
ment,” the district court did not err when it originally
sentenced De la Torre to 151 months on the money launder-
ing counts. Id. at 289. With these as the counts in the
group with the highest statutory maximum term of im-
prisonment (due to Apprendi’s effect on the drug con-
spiracy conviction), and with a 151-month sentence on
these counts “adequate to achieve the total punishment,”
the district properly ordered the sentences to run concur-
rently. See U.S.S.G. § 5G1.2(c); Griffith, 85 F.3d at 289.
In United States v. Griffith, 85 F.3d 284 (7th Cir. 1996),
the defendant was convicted of RICO and money launder-
ing violations, sentenced to the statutory maximum of 60
months on each of the money laundering counts (which was
less than the “total punishment” as determined for his
offense level), and sentenced to the “total punishment” on
the RICO counts. Id. at 288-89. Griffith argued that,
since the offense level which dictated his total punishment
originated with the money laundering guideline, he was, in
effect, being subjected to a sentence for money launder-
ing in excess of the statutory maximum for that crime,
even though the sentence was technically imposed on the
RICO counts. Id. at 289. We rejected this argument,
10 Nos. 01-3929 & 01-3930
“[though] seemingly plausible, [a]s fallacious. Griffith was
not convicted solely of money laundering. The sentence
imposed upon him, while it corresponds to the base offense
level for the money laundering count, is imposed as a
total punishment for all of his criminal conduct.” Id.De la Torre makes a similar argument in this case—the
only difference being that the statutory maximum sen-
tence on his drug conspiracy count was limited because
of Apprendi. While we acknowledge that Griffith preceded
Apprendi by several years, Apprendi does not change the
outcome for De la Torre because it does not affect the
Guideline calculations that determine the “total punish-
ment” or total sentence of imprisonment. See United States
v. Knox, 301 F.3d 616, 620 (7th Cir. 2002); United States v.
Behrman, 235 F.3d 1049, 1054 (7th Cir. 2000); Talbott v.
Indiana, 226 F.3d 866, 869 (7th Cir. 2000); Hernandez v.
United States, 226 F.3d 839, 841-42 (7th Cir. 2000).
Contrary to De la Torre’s belief, Apprendi does not
preclude the district court from using its finding (by a
preponderance of the evidence) that the conspiracy in-
volved quantities of marijuana in excess of 1000 kilograms6
to set the base offense level on his drug convictions, and
thus the offense level and “total punishment” that applies
to the group.7 This information may be used “ ‘so long as
the sentence actually imposed on the drug conspiracy
6
Because there was substantial evidence in the record to sup-
port this finding, this finding was not clearly erroneous. United
States v. Noble, 299 F.3d 907, 910-11 (7th Cir. 2001).
7
Grouping multiple counts merely affects the offense level used
in establishing a guideline range and cannot change a statutory
penalty. See Knox, 301 F.3d at 620; United States v. Parolin,
239 F.3d 922, 930 (7th Cir. 2001); United States v. Feola, 275 F.3d
216, 219-20 (2d Cir. 2001). “The basic philosophy of the grouping
provision is to assign sentences based on the harm inflicted,
rather than on the way in which the prosecutor framed the
indictment.” Griffith, 85 F.3d at 288.
Nos. 01-3929 & 01-3930 11
does not exceed the statutory maximum for that crime.’ ”
United States v. Twaine Jones, 248 F.3d 671, 676-77 (7th
Cir. 2001) (quoting United States v. Torrey Jones, 245
F.3d 645, 651 (7th Cir. 2001), and citing Talbott v. Indiana,
226 F.3d 866, 869 (7th Cir. 2000)).
De la Torre’s “total punishment,” while it originates with
the base offense level for the drug crimes, is imposed as
total punishment for all of his criminal conduct. See
Griffith, 85 F.3d at 289. So long as he is not sentenced
beyond the statutory maximum sentence on his drug
conviction, Apprendi is not violated. As in Griffith, “[t]he
Guidelines leave no doubt as to the correctness of this
interpretation of the multiple-count sentencing provisions.
The Commentary to § 5G1.2 (which is, of course, binding
on the federal courts) reiterates that ‘[t]o the extent possi-
ble, the total punishment is to be imposed on each count.’ ”
Griffith, 85 F.3d at 289 (quoting U.S.S.G. § 5G1.2 cmt.
(1995)).
For the reasons outlined above, we find that the district
court’s original sentence properly followed the Guide-
lines’ application procedures in determining the sentenc-
ing range for the “total punishment.” The court’s only
error was imposing a 151-month sentence on the drug
conspiracy count, in contravention of Apprendi. Because
the district court may have incorrectly believed that
Apprendi mandated a shorter sentence on the money
laundering counts, we vacate De la Torre’s sentence on
these counts and remand for the district court to reimpose
the original 151-month sentences.
C. De la Torre’s Challenges to the District Court’s Factual
Findings
De La Torre challenges the district court’s application
of the Guidelines, but does so in a perfunctory manner
12 Nos. 01-3929 & 01-3930
without citing any legal authority. Therefore, we comment
briefly on the merits of his arguments.
De la Torre argues that the district court erred in finding
a two-level increase for possession of a firearm in connec-
tion with the drug offenses. Because the district court
relied on testimony that (1) De la Torre was seen with a
firearm during at least one drug buy, (2) that firearms were
used to protect the conspiracy’s drug operations, and (3)
that several other firearms were found during the search
of De la Torre’s home, this finding was not clearly errone-
ous. See United States v. Willis, 300 F.3d 803, 806 (7th
Cir. 2002). De la Torre also contends that he should have
received a two-point downward adjustment to his money
laundering offense level because he played only a minor
role in the conspiracy. But the district court did not find
De la Torre’s testimony about his role in the conspiracy
credible (it was refuted by other testimony), and there
was evidence that he completed 27 different wire transfers
to launder the proceeds of the drug conspiracy. Therefore,
it was not clear error for the district court to deny his
request for a downward adjustment. See United States v.
Mojica, 185 F.3d 780, 791 (7th Cir. 1999).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the firearm en-
hancement to De la Torre’s base offense level on the drug
convictions and the district court’s denial of De la Torre’s
request for a downward adjustment for a minor role in the
money laundering conspiracy, but we VACATE his sen-
tence on the money laundering counts and REMAND for
resentencing consistent with this opinion.
Nos. 01-3929 & 01-3930 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-1-03