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United States v. Torres-Rivas

United States Court of Appeals, Eighth Circuit

June 9, 2016

United States of America, Plaintiff- Appellee
v.
Octavio Torres-Rivas, Defendant-Appellant

          Submitted: March 14, 2016

         Appeal from United States District Court for the Western District of Arkansas - Fayetteville

          Before WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.

          BENTON, Circuit Judge

         Octavio Torres-Rivas pled guilty to conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. He appeals, claiming that the government violated the plea agreement by arguing against an acceptance-of- responsibility reduction, and that the district court[1] erred in denying his request for acceptance of responsibility. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         On July 1, 2014, the government and Torres-Rivas made a plea agreement, which says:

The United States agrees not to object to a recommendation by the Probation Office or a ruling of the Court which awards the defendant an appropriate-level decrease in the base offense level for acceptance of responsibility. If the offense level in the Presentence Report is 16 or greater and the Court accepts a recommendation in the Presentence Report that the defendant receive two points for acceptance of responsibility, the United States agrees to move for an additional one-point reduction for acceptance of responsibility for a total of three points. However, the United States will not be obligated to move for an additional one-point reduction or recommend any adjustment for acceptance of responsibility if the defendant engages in conduct inconsistent with acceptance of responsibility including, but not limited to, the following a) falsely denies, or makes a statement materially inconsistent with, the factual basis set forth in this agreement, b) falsely denies additional relevant conduct in the offense, c) is untruthful with the United States, the Court or probation officer, or d) materially breaches this plea agreement in any way.

         The agreement also says:

At the sentencing hearing, the United States will be permitted to bring to the Court's attention, and the Court will be permitted to consider, all relevant information with respect to the defendant's background, character and conduct, including the conduct that is the subject of this investigation for which he/she has not been charged up to the date of this Agreement, and/or which is the basis for any of the counts which will be dismissed pursuant to this agreement, as provided by § 1B1.3 of the Sentencing Guidelines.

         The Presentence Investigation Report (PSR), months later, addressed a threat investigation about two letters to cooperating co-defendants in February 2014 and August 2014. The PSR says, "Based on threats believed to be made by the defendant to cooperating defendants and witnesses, it is recommended the defendant receive an enhancement for obstruction of justice. . . . [C]onduct resulting in an enhancement under U.S.S.G. § 3C1.1 ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct."

         At sentencing, the court heard testimony about the two letters. The government argued they show obstruction of justice. The government also claimed that Torres-Rivas should be denied acceptance of responsibility because of the obstruction of justice and because he denied relevant conduct about his interaction with co-conspirators (as a leader or organizer). The district court rejected the obstruction-of-justice enhancement, based on "enough gaps" in the evidence. The district court also denied a reduction for acceptance of responsibility, saying "I think he's a leader, number one. I think what happened after July 1, 2014 is relevant, as well as some of what happened prior to July 1. So I'm not going to give . . . acceptance of responsibility."

         According to Torres-Rivas, the government-aware of the first letter at the time of the plea agreement (and plea)-broke the terms of the agreement by arguing against acceptance of responsibility. Regardless, he believes that the district court should have granted acceptance of responsibility.

         I.

         This court reviews de novo "issues pertaining to the interpretation and enforcement of a plea agreement." United States v. Stobaugh, 420 F.3d 796, 800 (8th Cir. 2005). "Plea agreements are contractual in nature and should be interpreted according to general contractual principles." United States v. E.V., 500 F.3d 747, 751 (8th Cir. 2007). "[W]here a plea agreement is ambiguous, the ambiguities are construed against the government." United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc). "Any promise made by the Government that constitutes a significant part of the defendant's inducement or consideration for making the plea agreement must be fulfilled to satisfy due process." Stobaugh, 420 F.3d at 800.

         Torres-Rivas claims the government had an affirmative duty to recommend a decrease for acceptance of responsibility and violated that duty by first not arguing for it, and then by arguing against it. However, any duty is conditional. The agreement provides that the government would " move for an additional one-point reduction for acceptance of responsibility" if "Court accepts a recommendation in the Presentence Report that the defendant receive two points for acceptance of responsibility." Because the PSR had no recommendation for acceptance of responsibility, the government had no duty to argue for acceptance of responsibility. See United States v. Borer, 412 F.3d 987, 994-95 (8th Cir. 2005) (holding no breach of plea agreement where government did not recommend sentence at low end of guideline range, and plea agreement made such recommendation contingent on the range "anticipated by the Presentence Report"). Cf. United States v. Gomez, 271 ...


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