Petition for Writ of Certiorari — Arturo Torres-Cabrera, Petitioner v. United States

IN THE SUPREME COURT OF THE UNITED STATES

11!

ARTURO TORRES-CABRERA,

Petitioner

v.

1AL

Supreme Court, U.S.

FILED

APR 0 4 2019

OFFICE OF THE CLERK

UNITED STATES OF AMERICA,

Respondent .

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

JASON D. HAWKINS

Federal Public Defender

NORTHERN DISTRICT OF TEXAS

PETER FLEURY

Counsel of Record

ASSISTANT FEDERAL PUBLIC

DEFENDER

819 TAYLOR ST., RM 9A10

FORT WORTH, Tx. 76102

(817) 978-2753

71°

QUESTIONS PRESENTED

I.

Whether all facts - including the fact of a prior conviction - that increase a

defendant's statutory maximum must be pleaded in the indictment and either

admitted by the defendant or proven to a jury beyond a reasonable doubt?

Subsidiary questions:

Did the district court err in sentencing Torres-Cabrera to a term of imprisonment

greater than two years for a violation of 8 U.S.C. § 1326?

Are the statutory enhancement provisions in 8 U.S.C. § 1326(b)

unconstitutional because Congress unequivocally intended the enhancements to

be sentencing factors, not elements of separate offenses; but under this Court's

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), such a scheme is

unconstitutional?

ii

PARTIES

Arturo Torres-Cabrera is the Petitioner; he was the defendant-appellant below.

The United States of America is the Respondent; it was the plaintiff-appellee below.

iii

TABLE OF CONTENTS

ii

Question Presented

Parties

iv

Table of Contents

Index to Appendices

Table of Authorities

vi

Opinions Below

1

Jurisdictional Statement.

1

Constitutional and Statutory Provisions Involved

1

Statement of the Case

4

Reasons for Granting the Writ.

5

This Court should use this case to answer the reoccurring, important question whether

all facts — including the fact of a prior conviction — that increase a defendant's statutory

maximum must be pleaded in the indictment and either admitted by the defendant or

5

proven to a jury beyond a reasonable doubt?

10

Conclusion

iv

INDEX TO APPENDICES

Appendix A Judgment and Opinion of Fifth Circuit

Appendix B Judgment and Sentence of the United States District Court for the

Northern District of Texas

TABLE OF AUTHORITIES

Cases

5, 6, 7, 8

Alleyne v. United States, 133 S. Ct. 2151 (2013)

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

passim

Apprendi v. New Jersey, 530 U.S. 466 (2000)

passim

Blakely v. Washington, 542 U.S. 296 (2004)

6

Booth v. Maryland, 482 U.S. 496 (1987)

9

Cunninghams v. California, 549 U.S. 270 (2007)

8

Descamps v. United States, 133 S. Ct. 2276 (2013)

5

Dretke v. Haley, 541 U.S. 386 (2004)

6

Grady v. Corbin, 495 U.S. 508 (1990)

9

James v. United States, 550 U.S. 192 (2007)

6

Nijhawan v. Holder, 129 S. Ct. 2294 (2009)

6

Payne v. Tennessee, 501 U.S. 808 (1991)

9

Rangel-Reyes v. United States, 547 U.S. 1200 (2006)

6

4, 5, 6, 8

Shepard v. United States, 544 U.S. 13 (2005)

South Carolina v. Gathers, 490 U.S. 805 (1989)

9

United States v. Dixon, 509 U.S. 688 (1993)

9

Statutes

1, 4, 10

8 U.S.0 § 1326

8 U.S.C. § 1326(a)

10

8 U.S.C. § 1326(b)

4, 5, 6, 9

28 U.S.C. § 1254(1)

1

Rules

1

Sup. Ct. R 13.1

Miscellaneous

4 W. Blackstone, Commentaries on the Laws of England 343 (1769)

6

1 J. Bishop, Criminal Procedure § 87, p 55 (2d ed. 1872)

6

J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862)

6

vi

United States Constitution

U.S. Const. amend. V

2

U.S. Const. amend. VI

3

vii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Arturo Torres-Cabrera respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The unpublished opinion of the United States Court of Appeals for the Fifth Circuit is

captioned as United States v. Arturo Torres-Cabrera, No. 18-11031, and is provided in the Appendix to

the Petition. [Appx.

'JURISDICTIONAL STATEMENT

The instant Petition is filed within 90 days of an opinion affirming the judgment, which was

entered on March 21, 2019. See SUP. CT. R. 13.1. This Court's jurisdiction to grant certiorari is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, RULES, AND STATUTES INVOLVED

8 U.S.C. § 1326 provides in part:

(a) In general. Subject to subsection (b), any alien who—

has been denied admission, excluded, deported, or removed or has departed the

United States while an order of exclusion, deportation, or removal is outstanding,

and thereafter

enters, attempts to enter, or is at any time found in, the United States, unless (A)

prior to his reembarkation at a place outside the United States or his application for

admission from foreign contiguous territory, the Attorney General has expressly

consented to such alien's reapplying for admission; or (B) with respect to an alien

previously denied admission and removed, unless such alien shall establish that he

was not required to obtain such advance

1

consent under this or any prior Act,

shall be fined under title 18, United States Code, or imprisoned not more than 2

years or both.

(b) Criminal penalties for reentry of certain removed aliens.

Notwithstanding subsection (a), in the case of any alien described in such subsectionwhose removal was subsequent to a conviction for commission of three or more

misdemeanors involving drugs, crimes against the person, or both, or a felony (other

than an aggravated felony), such alien shall be fined under title 18, United States

Code, imprisoned not more than 10 years, or both;

whose removal was subsequent to a conviction for commission of an aggravated

felony, such alien shall be fined under such title, imprisoned not more than 20

years, or both;

who has been excluded from the United States pursuant to section 235(c) [8

USCS § 1225(c)] because the alien was excludable under section 212(a)(3)(B) [8

USCS § 1182(a)(3)(B)] or who has been removed from the United States pursuant

to the provisions of title V [8 USCS §§ 1531 et seq.], and who thereafter, without

the permission of the Attorney General, enters the United States, or attempts to do

so, shall be fined under title 18, United States Code, and imprisoned for a period of

10 years, which sentence shall not run concurrently with any other sentence.[;] or

who was removed from the United States pursuant to section 241(a)(4)(B) [8

USCS § 1231(a)(4)(B)] who thereafter, without the permission of the Attorney

General, enters, attempts to enter, or is at any time found in, the United States

(unless the Attorney General has expressly consented to such alien's reentry) shall be

fined under title 18, United States Code, imprisoned for not more than 10 years, or

both. For the purposes of this subsection, the term "removal" includes any agreement

in which an alien stipulates to removal during (or not during) a criminal trial under

either Federal or State law.

The Fifth Amendment to the United States Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without just compensation.

2

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defense.

3

STATEMENT OF THE CASE

A.

Trial Court Proceedings

Petitioner was charged in a one-count indictment with illegal re-entry after deportation, a

violation of 8 U.S.C. § 1326(a) and (b)(1). The indictment alleged that "loin or about June 10, 2017,

in the Dallas Division of the Northern District of Texas, the defendant, Arturo Torres-Cabrera, an

alien, was found in the United States after having been deported and removed therefrom on or

about June 19, 2016, without having received the consent of the Attorney General or the Secretary

of the Department of Homeland Security, to reapply for admission since the time of the Defendant's

previous deportation and removal." There were no allegations of any of the enhancement provisions

under the statute that would raise the statutory maximum above 2 years. See 8 U.S.C. § 1326.

Petitioner Arturo Torres-Cabrera pleaded guilty to this indictment. The factual resume and

the admonishments at the re-arraignment noted that the maximum sentence was 10 years. The

district court did not advise Torres-Cabrera that the Felony provision of 8 U.S.C. § 1326(b)(1) stated

an essential element of the offense to which he was pleading guilty. The district court sentenced Mr.

Torres-Cabrera to 33 months.

B.

The Appeal

Petitioner appealed his sentence, arguing, that the district court's sentence exceeded the

statutory maximum authorized by 8 U.S.C. § 1326(a). The court of appeals affirmed his sentence.

United States v. Torres-Cabrera, No. 18-11031, (5th Cir., March 21, 2019). See [Appendix Al.

4

REASONS FOR GRANTING THE WRIT

This Court should use this case to answer the reoccurring, important question whether all facts —

including the fact of a prior conviction — that increase a defendant's statutory maximum must be

pleaded in the indictment and either admitted by the defendant or proven to a jury beyond a

reasonable doubt?

Introduction.

Petitioner was subjected to an enhanced statutory maximum under 8 U.S.C. §1326(b)

because the removal charged in the indictment followed an aggravated felony conviction. Petitioner's

sentence thus depends on the judge's ability to find the existence and date of a prior conviction, and

to use that date to increase the statutory maximum. This power was affirmed in Almendarez-Torres v.

United States, 523 U.S. 224 (1998), which held that the enhanced maximums of 8 U.S.C.§ 1326

represent sentencing factors rather than elements of an offense, and that they may be constitutionally

determined by judges rather than juries. See Almendarez-Torres, 523 U.S. at 244.

This Court, however, has repeatedly limited Almendarez-Torres. See Alleyne v. United States, 133

S.Ct. 2151, 2160 n.1 (2013) (characterizing Almendarez-Torres as a narrow exception to the general

rule that all facts that increase punishment must be alleged in the indictment and proved to a jury

beyond a reasonable doubt); Descamps v. United States, 133 S. Ct. 2276, 2295 (2013)(Thomas, J.,

concurring) (stating that Almendarez-Torres should be overturned); Apprendi v. New Jersey, 530 U.S.

466, 490 (2000) (stressing that Almendarez-Torres represented "a narrow exception" to the prohibition

on judicial fact-finding to increase a defendant's sentence); Shepard v. United States, 544 U.S. 13

(2005) (Souter, J., controlling plurality opinion) ("While the disputed fact here can be described as

a fact about a prior conviction, it is too far removed from the conclusive significance of a prior

5

judicial record, and too much like the findings subject to Jones and Apprendi, to say that AlmendarezTorres clearly authorizes a judge to resolve the dispute."); Dretke v. Haley, 541 U.S. 386, 395-396

(2004) (concluding that the application of Almendarez-Torres to the sequence of a defendant's prior

convictions represented a difficult constitutional question to be avoided if possible); Nijhawan v.

Holder, 129 S.Ct. 2294, 2302 (2009) (agreeing with the Solicitor General that the loss amount of a

prior offense would represent an element of an 8 U.S.C. §1326(b) offense, to the extent that it

boosted the defendant's statutory maximum).

Further, any number of opinions, some authored by Justices among the Almendarez-Torres

majority, have expressed doubt about whether it was correctly decided. See Apprendi, 530 U.S. at 490;

Haley, 541 U.S. at 395-396; Shepard, 544 U.S. at 26 & n.5 (Souter, J., controlling plurality opinion);

Shepard, 544 U.S. at 26-28 (Thomas, J., concurring); Rangel-Reyes v. United States, 547 U.S. 1200,

1201(2006)(Stevens, J., concurring in denial of certiorari); Rangel-Reyes, 547 U.S. at 1202-03

(Thomas, J., dissenting from denial of certiorari); James v. United States, 550 U.S. 192, 231-232

(2007)(Thomas, J., dissenting). And this Court has also repeatedly cited authorities as exemplary of

the original meaning of the constitution that do not recognize a distinction between prior

convictions and facts about the instant offense. See Blakely v. Washington, 542 U.S. 296, 301-302

(2004) (quoting 4 W. Blackstone, Commentaries on the Laws of England 343 (1769),1 J. Bishop,

Criminal Procedure § 87, p 55 (2d ed. 1872)); Apprendi, 530 U.S. at 478-479 (quoting J. Archbold,

Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) , 4 Blackstone, 369-370).

In Alleyne, this Court applied Apprendi's rule to mandatory minimum sentences, holding that

any fact that produces a higher sentencing range—not just a sentence above the mandatory

maximum—must be proved to a jury beyond a reasonable doubt. 133 S. Ct. at 2162-63. In its

opinion, the Court apparently recognized that Almendarez-Torres's holding remains subject to Fifth

and Sixth Amendment attack. Alleyne characterized AlmendarezTorres as a "narrow exception to the

general rule" that all facts that increase punishment must be alleged in the indictment and proved

to a jury beyond a reasonable doubt. Id. at 2160 n.1. But because the parties in Alleyne did not

challenge Almendarez-Torres, this Court said that it would "not revisit it for purposes of [its] decision

today." Id.

The Court's reasoning nevertheless demonstrates that Almendarez-Torres's recidivism

exception should be overturned. Alleyne traced the treatment of the relationship between crime and

punishment, beginning in the Eighteenth Century, repeatedly noting how "[the] linkage of facts with

particular sentence ranges . . . reflects the intimate connection between crime and punishment." Id.

at 2159 ("[i]f a fact was by law essential to the penalty, it was an element of the offense"); see id.

(historically, crimes were defined as "the whole of the wrong to which the law affixes [ ] punishment

include[ing] any fact that annexes a higher degree of punishment") (internal quotation marks and

citations omitted); id. at 2160 ("the indictment must contain an allegation of every fact which is

legally essential to the punishment to be inflicted") (internal quotation marks and citation omitted).

This Court concluded that, because "the whole of the" crime and its punishment cannot be

separated, the elements of a crime 'must include any facts that increase the penalty. The Court

recognized no limitations or exceptions to this principle.

Alleyne's emphasis that the elements of a crime include the "whole" of the facts for which a

defendant is punished seriously undercuts the view, expressed in Almendarez-Torres, that recidivism

is different from other sentencing facts. See Almendarez-Torres, 523 U.S. at 243-44; see also Apprendi,

530 U.S. at 490 ("Other than the fact of a prior conviction, any fact that increases the penalty for a

7

n

crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.") Apprendi tried to explain this difference by pointing out that, unlike other facts,

recidivism "'does not relate to the commission of the offense' itself[.]" 530 U.S. at 496 (quoting

Almendarez-Torres, 523 U.S. at 230). But this Court did not appear committed to that distinction; it

acknowledged that Almendarez-Torres might have been "incorrectly decided." Id. at 489; see also

Shepard v. United States 544 U.S. 13, 26 n.5 (2005) (acknowledging that Court's holding in that case

undermined Almendarez-Torres); Cunningham v. California, 549 U.S. 270, 291 n.14 (2007) (rejecting

invitation to distinguish between "facts concerning the offense, where Apprendi would apply, and

facts [like recidivism] concerning the offendei, where it would not," because "Apprendi itself ... leaves

no room for the bifurcated approach").

Three concurring justices in Alleyne provide additional reason to believe that the time is ripe

to revisit Almendarez-Torres. See Alleyne, 133 S. Ct. at 2164 (Sotomayor, Ginsburg, Kagan, J.J.,

concurring). Those justices noted that the viability of the Sixth Amendment principle set forth in

Apprendi was initially subject to some doubt, and some justices believed the Court "might retreat"

from it. Id. at 2165. Instead, Apprendi's rule "has become even more firmly rooted in the Court's

Sixth Amendment jurisprudence." Id. Reversal of precedent is warranted when "the reasoning of

[that precedent] has been thoroughly undermined by intervening decisions." Id. at 2166.

The validity of Almendarez-Torres is accordingly subject to reasonable doubt. If AlmendarezTorres is overruled in another case, the result will obviously undermine the use of Petitioner's prior

conviction to increase his statutory maximum. Indeed, any limitation on the scope of this decision

in another case will undercut the decision below. Petitioner's sentence depends on the district

court's ability to find not merely that he was previously convicted, but that the date of his prior

8

conviction preceded the deportation admitted by the plea of guilty. See 8 U.S.C. §1326(b) (requiring

that the defendant's prior felony conviction precede his removal).

Stare decisis should be not a bar to this Court's decision to overrule Alrnendarez-Torres. As this

Court noted in United States v. Dixon, 509 U.S. 688, 704-13 (1993), as it overruled the decision

rendered only three years before in Grady v. Corbin, 495 U.S. 508 (1990):

. . . Although stare decisis is the "preferred course" in constitutional

adjudication, "when governing decisions are unworkable or are badly reasoned, this

Court has never felt constrained to follow precedent."

Dixon, 509 U.S. at 712 (citations omitted). In both Grady v. Corbin and Almendarez-Torres, the initial

opinion was rendered by a sharply divided Court with four dissenters from the five member majority.

In both cases the dissent argued that the majority opinion was contrary to the historical

understanding of the issue and represented a sharp break with that past.

Likewise, in Payne v. Tennessee, 501 U.S. 808, 827-30 (1991), the Court, citing the same

principle, overruled its prior decisions in Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina

v. Gathers, 490 U.S. 805 (1989). The Court in Payne noted that "Booth and Gathers were decided

by the narrowest of margins, over spirited dissents challenging the basic underpinnings of those

decisions." Id. at 828-29.

Almendarez-Torres, like the overruled decisions in Grady v. Corbin, Booth, and Gathers, was

decided by the narrowest of margins, over the spirited dissent of Justice Scalia challenging the basic

underpinnings of the majority's decision.

Because it appears that a majority of the Court now recognizes that the majority opinion in

Almendarez-Torres was badly reasoned, and that the case was wrongly decided, this petition should be

granted to reconsider that decision. If this Court were to do so, it would require this Court to vacate

9

Torres-Cabrera's sentence of 33 months imprisonment and to remand for resentencing under 8

U.S.C. § 1326(a), which provides for a statutory maximum sentence of two years imprisonment.

This Court has held that Congress unequivocally intended the enhancement provisions of 8 U.S.C.

§ 1326 to be sentencing factors, not elements. See Almenclarez-Torres, 523 U.S. at 235. Such a scheme

is unconstitutional. In the alternative, should this court determine the statute is constitutional but

that the sentencing enhancements must be proven to a jury beyond a reasonable doubt, a remand is

still necessary, as the plea was involuntary under these circumstances.

If this Court were to determine that the Constitution limits Petitioner's statutory range of

imprisonment to not more than two years, then clearly such constitutional error substantially

prejudiced Petitioner as evidenced by his 33 months sentence.

Conclusion

Petitioner respectfully prays that this Honorable Court grant certiorari, and reverse the

judgment below, and/or vacate the judgment and remand for reconsideration in light of any relevant

forthcoming.

Respectfully submitted April 4, 2019.

/s/ PETER FLEURY

EV

PETER FLEURY

Counsel of Record

FEDERAL PUBLIC DEFENDER'S OFFICE

NORTHERN DISTRICT OF TEXAS

819 TAYLOR ST., STE. 9A 10

FORT WORTH, TEXAS 76202

817-978-2753

10

No. -

IN THE SUPREME COURT OF THE UNITED STATES

ARTURO TORRES-CABRERA,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

APPENDIX

JASON D. HAWKINS

Federal Public Defender

NORTHERN DISTRICT OF TEXAS

PETER FLEURY

Counsel of Record

ASSISTANT FEDERAL PUBLIC

DEFENDER

819 TAYLOR ST., RM 9A10

FORT WORTH, Tx. 76102

(817) 978-2753

INDEX TO APPENDICES

Appendix A Judgment and Opinion of Fifth Circuit

Appendix B Judgment and Sentence of the United States District Court for the Northern

District of Texas

n

n

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-11031

Summary Calendar

FILED

March 21, 2019

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ARTURO TORRES-CABRERA,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:17-CR-627-1

Before DAVIS, HAYNES, and GRAVES, Circuit Judges.

PER CURIAM:*

Arturo Torres-Cabrera appeals his conviction for illegal reentry after

deportation and his sentence of 33 months of imprisonment and two years of

supervised release. He argues that his sentence exceeded the statutory

maximum because the enhanced penalty provision of 8 U.S.C. § 1326(b)(1) is

unconstitutional. He also asserts that his guilty plea was involuntary because

he was not admonished that his prior felony conviction could only be used to

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

No. 18-11031

enhance his sentence under § 1326(b)(1) if it was submitted to a jury and

proved beyond a reasonable doubt.

However, Torres-Cabrera has filed an unopposed motion for summary

disposition and a letter brief conceding that these issues are foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998). He explains that he

has raised the issues only to preserve them for possible further review.

Accordingly, because summary disposition is appropriate, see Groendyke

Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Torres-Cabrera's

motion is GRANTED, and the district court's judgment is AFFIRMED.

2

n

APPENDIX B

Case 3:17-cr-00627

Document 31 Filed 08/08/18 F( 1 of 7 PagelD 100

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

UNITED STATES OF AMERICA

JUDGMENT IN A CRIMINAL CASE

v.

Case Number: 3:17-CR-00627-L(1)

USM Number: 33830-479

Gabriela Vega

ARTURO TORRES-CABRERA

Defendant's Attorney

THE DEFENDANT:

I

I

❑

•

pleaded guilty to count(s)

pleaded guilty to count(s) before a U.S.

Magistrate Judge, which was accepted by the

court.

pleaded nolo contendere to count(s) which was

accepted by the court

was found guilty on count(s) after a plea of not

guilty

Count 1 of the Indictment filed December 5, 2017

The defendant is adjudicated guilty of these offenses:

Title & Section / Nature of Offense

Offense Ended

8:1326(a) and (b)(1) Illegal Reentry After Removal From The United States

06/10/2017

Count

The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to the Sentencing

Reform Act of 1984.

CI

The defendant has been found not guilty on count(s)

Count(s)

El is El are dismissed on the motion of the United States

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name,

residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If

ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic

circumstances.

August 6, 2018

Date of Imposition of Judgment

'ignature of Judge

Sam A. Lindsay, United States District Judge

Name and Title of Judge

August 8, 2018

Date

Case 3:17-cr-0062 — ''IDocument 31 Filed 08/08/18 rTh 2 of 7 PagelD 101

AO 245B (Rev. TXN 2/18) Judgment in a,

DEFENDANT:

CASE NUMBER:

Judgment -- Page 2 of 7

Anal Case

ARTURO TORRES-CABRERA

3:17-CR-00627-L(1)

IMPRISONMENT

Pursuant to the Sentencing Reform Act of 1984, but taking the Guidelines as advisory pursuant to United States v. Booker, and considering the

factors set forth in 18 U.S.C. Section 3553(a), the defendant is hereby committed to the custody of the United States Bureau of Prisons to be

imprisoned for a total term of: Thirty-three (33) months as to Count 1.

IS)

The court makes the following recommendations to the Bureau of Prisons:

The court recommends that Defendant be allowed to serve his sentence at FCI, Seagoville, if he is eligible.

[E]

The defendant is remanded to the custody of the United States Marshal.

The defendant shall surrender to the United States Marshal for this district:

❑

at

❑

a.m.

p.m. on

as notified by the United States Marshal.

The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

before 2 p.m. on

as notified by the United States Marshal.

as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on

at

to

, with a certified copy of this judgment.

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

Case 3:17-cr-00627ThDocument 31 Filed 08/08/18 Pn 3 of 7 PagelD 102

AO 245B (Rev. TXN 2/18) Judgment in a L .nal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 3 of 7

ARTURO TORRES-CABRERA

3:17-CR-00627-L(1)

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of : Two (2) years.

MANDATORY CONDITIONS

You must not commit another federal, state or local crime.

You must not unlawfully possess a controlled substance.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release

from imprisonment and at least two periodic drug tests thereafter, as determined by the court.

The above drug testing condition is suspended, based on the court's determination that you pose a low risk of future

substance abuse. (check if applicable)

You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence

of restitution. (check if applicable)

Z You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

❑

You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et

seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which

you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)

0 You must participate in an approved program for domestic violence. (check if applicable)

You must comply with the standard conditions that have been adopted by this court as well as with any additional

conditions on the attached page.

Case 3:17-cr-00627' Document 31 Filed 08/08/18 r 4 of 7 PagelD 103

AO 245B (Rev. TXN 2/18) Judgment in a

DEFENDANT:

CASE NUMBER:

Judgment -- Page 4 of 7

;nal Case

ARTURO TORRES-CABRERA

3:17-CR-00627-L(1)

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are

imposed because they establish the basic expectations for your behavior, while on supervision and identify the minimum tools needed

by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time

frame.

After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and

when you must report to the probation officer, and you must report to the probation officer as instructed.

You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from

the court or the probation officer.

You must answer truthfully the questions asked by your probation officer.

You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer

to take any items prohibited by the conditions of your supervision that he or she observes in plain view.

You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses

you from doing so. If you plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been

convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the

probation officer.

If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that

was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or

tasers).

You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant

without first getting the permission of the court.

If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may

require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a

written copy of this judgment containing these conditions. I understand additional information regarding these

conditions is available at www.txnp.uscourts.gov.

Defendant's Signature

Date

Case 3:17-cr-00627'ThDocument 31 Filed 08/08/18 Pn5 of 7 PagelD 104

AO 245B (Rev. TXN 2/18) Judgment in a i

DEFENDANT:

CASE NUMBER:

.hal Case

Judgment -- Page 5 of 7

ARTURO TORRES-CABRERA

3 :17-CR-00627-L(1)

SPECIAL CONDITIONS OF SUPERVISION

As a condition of supervised release, upon the completion of the sentence of imprisonment, the defendant shall

be surrendered to a duly-authorized immigration official for deportation in accordance with the established

procedures provided by the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. As a further condition of

supervised release, if ordered deported or removed, the defendant shall remain outside the United States.

In the event the defendant is not deported upon release from imprisonment, the defendant shall comply with the

standard conditions contained in this Judgment and shall comply with the mandatory and special conditions.

Case 3:17-cr-00627 \ Document 31 Filed 08/08/18 F'

AO 245B (Rev. TXN 2/18) Judgment in a

DEFENDANT:

CASE NUMBER:

anal Case

6 of 7 PagelD 105

Judgment -- Page 6 of 7

ARTURO TORRES-CABRERA

3:17-CR-00627-L(1)

CRIMINAL MONETARY PENALTIES

The defendant must oav the total criminal monetary enalties under the schedule of payments on Sheet 6.

Fine

JVTA Assessment*

Assessment

$.00

$100.00

$.00

TOTALS

0

Restitution

$.00

An Amended Judgment in a Criminal Case

The determination of restitution is deferred until

will

be

entered

after

such

determination.

(A0245C)

The defendant must make restitution (including community restitution) to the following payees in

the amount listed below.

The defendant must make restitution (including community restitution) to the following payees in the

amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment. However, pursuant to 18 U.S.C.

§ 3664(i), all nonfederal victims must be paid before the United States is paid.

Restitution amount ordered pursuant to plea agreement $

The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before

the fifteenth day after the date. of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be

subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

The court determined that the defendant does not have the ability to pay interest and it is ordered that:

restitution

❑ fine

the interest requirement is waived for the

D

the interest requirement for the

❑

fine

D

restitution is modified as follows:

* Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22

** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after

September 13, 1994, but before April 23, 1996.

7 of 7 PagelD 106

Case 3:17-cr-00627 Document 31 Filed 08/08/18

AO 245B (Rev. TXN 2/18) Judgment in a

DEFENDANT:

CASE NUMBER:

Judgment -- Page 7 of 7

.hal Case

ARTURO TORRES-CABRERA

3:17-CR-00627-L(1)

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties is due as follows:

A

❑

due immediately, balance due

Lump sum payments of $

, or

not later than

in accordance

B

❑

❑

C,

❑

D,

Payment to begin immediately (may be combined with

Payment in equal

❑

E, or

❑

F below; or

❑

C,

❑

D, or

❑

over a period of

(e.g., weekly, monthly, quarterly) installments of $

(e.g., months or years), to commence

F below); or

(e.g., 30 or 60 days) after the date of this judgment;

or

Payment in equal 20 (e.g., weekly, monthly, quarterly) installments of $

(e.g., months or years), to commence

imprisonment to a term of supervision; or

E

over a period of

(e.g., 30 or 60 days) after release from

❑

(e.g., 30 or 60 days) after release

Payment during the term of supervised release will commence within

from imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that

time; or

El

Special instructions regarding the payment of criminal monetary penalties:

It is ordered that the Defendant shall pay to the United States a special assessment of $100.00 for Count 1, which

shall be due immediately. Said special assessment shall be paid to the Clerk, U.S. District Court.

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is

due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons'

Inmate Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

Joint and Several

See above for Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and

Several Amount, and corresponding payee, if appropriate.

Defendant shall receive credit on his restitution obligation for recovery from other defendants who contributed to the same

loss that gave rise to defendant's restitution obligation.

The defendant shall pay the cost of prosecution.

The defendant shall pay the following court cost(s):

The defendant shall forfeit the defendant's interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,

(5) fine interest, (6) community restitution, (7) JVTA Assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs.