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United States v. Torres-Oliveras

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Before Lynch, Chief Judge, Boudin and Stahl, Circuit Judges.

Defendant-appellant Edwin Torres- Oliveras was convicted and sentenced pursuant to a plea agreement in which he admitted that he conspired to possess with intent to distribute “cocaine base, ‘crack,’ detectable amounts of cocaine, . . . and detectable amounts of heroin.” As part of his plea, Torres-Oliveras stipulated to possession with intent to distribute “at least two (2) but less than three and one half (3.5) kilograms of cocaine.” In the agreement, Torres-Oliveras also waived his statutory right to appeal his guilty plea or “any other respect of defendant’s conviction in the above captioned case.” The sentencing court adopted the government’s recommended sentence of 108 months in prison followed by 8 years supervised release.

After sentencing, Torres-Oliveras filed a timely notice of appeal. Five months later, while his appeal was pending before this court, Torres-Oliveras submitted a pro se motion to the district court under 18 U.S.C. § 3582(c)(2), seeking the retroactive benefit of an amended sentencing guideline which reduced by two levels the base offense level for crimes involving crack cocaine. See U.S.S.G. App. C, Amend. 706 (2007). The district court rejected the motion, finding that the revised guideline did not apply to Torres-Oliveras’ sentence because his plea agreement stipulated to possession with intent to distribute powder cocaine rather than crack cocaine. On appeal, Torres-Oliveras contests his conviction and sentence on several grounds, none of which are availing.

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