USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1606
UNITED STATES OF AMERICA,
Appellee,
v.
ZULMA JORGE TORRES,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Boudin, Circuit Judge,
_____________
and Keeton,* District Judge.
______________
____________________
Gustavo A. Gelpi, Assistant Federal Public Defender, with whom
________________
Benicio Sanchez-Rivera, Federal Public Defender, was on brief

_______________________
appellant.
Jeanette Mercado-Rios, Assistant United States Attorney, w
_____________________
whom Jose A. Quiles-Espinosa, Senior Litigation Counsel, was on br
_______________________
for the United States.
____________________
August 31, 1994
____________________

____________________
*
Of the District of Massachusetts, sitting by designation.

BOUDIN,

Circuit Judge.
_____________

Jorge-Torres

arrived in San

from Barbados.

Customs

On December

Juan, Puerto Rico,

the

holder,
1.5

Zulma

on a flight

inspection revealed that her handbag

contained a false bottom filled with heroin.

with

19, 1992,

heroin concealed

in her

tennis

was later found by laboratory

This,

together

shoes and

a pen

analysis to amount to

kilograms of

heroin with

a purity

strength of

Jorge-Torres

was charged

with knowing

97 per

cent.
possession with

intent

to distribute

indictment

under

and with

21

importation, in

U.S.C.

Thereafter, Jorge-Torres

841(a)(1)

and

952(a).

changed her initial not guilty plea

to a

plea of guilty to

both counts and

with

the

It

government.

a two-count

appears

sought to cooperate

that Jorge-Torres

then

provided the government with whatever limited information she

had concerning
occurred

and

the
who

network, including
supplied

the

how the

drugs

or

transaction

was

otherwise

involved.
Under the

Sentencing Guidelines,

a quantity of

heroin

between 1 and 3 kilograms corresponds to a base offense level

of

32.

See
___

U.S.S.G.

2D1.1(a)(3).

With

four-point

reduction for minimal participation and a further three-point

reduction

for

acceptance

of

responsibility,

U.S.S.G.

3B1.2(a), 3E1.1(b), Jorge-Torres' total offense level was 25.

Given

criminal

history

category

imprisonment range was 57-71 months.

of

I,

the

guideline

However, by
based on

statute the minimum term

for the offenses,

the quantity of drugs involved,

21 U.S.C.

is ten years.

841(b)(1)(A), 960(b)(1)(A).

On motion

See
___

by the

government, the district court has the authority to "impose a

sentence below a

level established by statute as [a] minimum

sentence

to

so

as

assistance" in
U.S.C.

court

the

investigating

3553(e).

comparable

reflect

defendant's

or prosecuting

See also U.S.S.G.

_________

departure

cannot sentence

substantial assistance

from the
below

substantial

another.

18

5K1.1 (permitting a

guidelines).
a statutory

The

district

minimum based

unless the government so

moves.

on
See
___

Wade v. United States, 112 S. Ct. 1840 (1992).

____
_____________
At the sentencing hearing, the district judge encouraged
government counsel
U.S.

attorney

Jorge-Torres
that

to consider

declined,

indicating

provided had

not led

consequently the

government

could find that substantial

this case.

a departure.
that

The assistant
the

to further
did not

information
arrests, and

believe that

it

assistance had been furnished in

The prosecutor did not expressly dispute that the

defendant had in

good faith provided

the government all

of

the information that she possessed.

Defense counsel pressed the judge to afford a hearing on
substantial assistance but offered no basis for thinking that

-3-

-3-

anything could be

adduced at

the hearing

beyond the

facts

already described, namely, that Jorge-Torres had done all she

could,

but the leads had not been helpful to the government.

The district court expressed frustration with the guidelines-in this instance the statutory minimum is the real culprit-but

found

that

departure

the

made a

government's

further

refusal

to

move for

hearing pointless.

statutory

minimum sentence of 10 years was then imposed.

On

appeal,

constitutional

counsel

attack on

for
the

defendant

statute and

violates

equal

protection, so

defense

impose a

long sentence on Jorge-Torres,

has

made

guidelines.

counsel argues,

a
It
to

a low-level courier

who tries her best to cooperate but has little information to

give, while
whose

providing lower sentences to

offenses are far more

serious but who

plenty of information to

trade.

that

assistance

the

structured

substantial
provides

major drug dealers

discrepant

happen to have

Accordingly, defendant says

regime

treatment

as
that

currently
serves

rational purpose consistent with the ends of Congress.

no

The

equal protection test is not a demanding one where,

as here,

there is

no suspect classification

disparate treatment, nor a

substantial burden on a protected

constitutional

right.

Living Center,
_____________

473 U.S. 432 (1985).

provide

See
___

a reward to a

underlying the

City of Cleburne v.
__________________

Cleburne
________

It is not irrational to

kingpin whose information permits the

-4-4-

government to shut down

a drug network nor is

it irrational

to withhold such leniency from a less important member of the

ring who tries
to offer
inherently
makes it

to assist but has nothing to

leniency in exchange for useful

a harsh
so.

arrangement:

In any

Indeed,

information is not

only the

event, such a regime

offer.

10-year minimum
plainly does not

lack a rational basis.

But Jorge-Torres' argument has a somewhat sharper point.
A

reasonable classification,

rest

upon

some

ground

of

substantial relation to the

says defendant's
difference having

brief, "must
a

fair

and

object of the legislation .

. .

_________________________________
."

Johnson v. Robison, 415 U.S. 361, 374-75 (1974) (emphasis

_______
_______

added).

Here,

the

defendant argues,

Congress

aimed

at

achieving fairness in sentencing, and there is no fairness in

giving

the defendant a 10-year sentence

could easily receive

of

drugs

as

long

when a drug kingpin

a lesser sentence for the same quantity

as

the

kingpin

brought

along

useful

information to trade in exchange for a lighter sentence.

It is not clear that this
ever

squarely

presented to

government has
the merits.

equal protection argument was

the

lower

not claimed waiver,

There may

premise that an

also be

court

but, as

we address the

some doubt about

equal protection analysis has

the

point on
the legal

to be focused

solely upon the specific objectives set forth by Congress and

without resort to

other possibilities.

We need not

pursue

-5-5-

this

point because even if

the legal premise

is sound, the

claim of irrationality still fails in this case when measured

against Congress' statutory purposes.

In

broad

terms it

sentencing provisions
991(b)(1)(B)

can be

aimed at

(mentioning

examination

of the

the purposes

current

of

objectives
e.g.,
____

18

categories of matters

provides

of

But

at

cross-

levels

(listing

Worse

U.S.C.

of

seven

still, from

3553(e)

expressly

statutory minimum

defendant's substantial

an

Congress has

various

3553(a)

below a

fact

reveals a

to be considered).
18

in its
U.S.C.

in

in which

expressed

standpoint,

reflect a

Cf. 28
___

sentencing

U.S.C.

that departures

allowed to

fairness.

various statutes

to

Jorge-Torres'

that Congress

fairness).

referred

generality,

said

may be

assistance in

investigating or prosecuting others.

Whatever
fairness of

one
the

might

say

in

the

present structure,

abstract

it

about

is plainly

not

the
an

irrational departure from the objectives that Congress itself

__________
has

set forth.

On

the contrary, affording

substantial assistance--it is virtually

great weight to

the only occasion on

which the statutory minimums may be disregarded--is Congress'

__
purpose.
more

While

section 3553(e)

favorable treatment of

may not

literally command

kingpins with

information than

for couriers without it, that outcome could easily

foreseen when Congress adopted the provision.

-6-6-

have been

This

court

protection
rejected

has

challenge
a

due

(1st Cir.

previously

of

this

process

assistance regime.
1010

not

kind,

to

the

an
we

equal
earlier

substantial-

See United States v. La Guardia, 902 F.2d

___ _____________
__________

1990).

advanced

although

challenge

However, four

rejected equal protection challenges

that

considered

here.*

other circuits

have

not very different from

The government

has

correctly

not

questioned our authority to review a constitutional attack on

the provision,
not

even though

reviewable.

considered

the

refusals to depart

La Guardia,
__________
issue

on

902 F.2d at
its

are normally

1012.

merits,

we

But having
reject

the

constitutional claim.
A somewhat

different issue might have

been raised and,

in the interests of justice, we feel compelled to remark upon

it.

From

hearing,

review of

the

one might think that

it lacked
wished

authority

to do so.

attorney was blaming

transcript of

sentencing

the government here felt that

to recommend
It might

the

departure even

appear that the

if

it

assistant U.S.

the statutory "substantial

assistance"

requirement and saying that his office was unable to move for
a

departure because

none of

the leads

provided by

Jorge-

____________________
United States v. Musser, 856 F.2d 1484, 1486-87 (11th Cir.
_____________
______
1988), cert. denied, 489 U.S. 1022 (1989); United States v.
____________
_____________
Rojas-Martinez, 968 F.2d 415, 419-20 (5th Cir.), cert.
______________
_____
denied, 113 S. Ct. 828 (1992) and 113 S. Ct. 995 (1993);
______
United States v. Horn, 946 F.2d 738, 746 (10th Cir. 1991);
______________
____
United States v. Broxton, 926 F.2d 1180, 1183-84 (D.C. Cir.
_____________
_______
1991).
-7-7-

Torres had resulted in

an arrest or otherwise made

any dent

in a drug cartel.
The "substantial
one.
it

Despite some

assistance" phrase is

arguments to the contrary, we

is at least plausible

entirely

free

to

treat

defendant's provision of a
pertaining to

the

a very

to contend that
as

general

think that

the prosecutor is

"substantial

assistance"

substantial amount of information

operation of

a drug

ring and--at

least

where the defendant has told all he or she can tell--to treat
this

as substantial

results

assistance,

in a further arrest

regardless of

or prosecution.

whether

it

If we thought

that the government was generally confused about this matter,

we would

provide it with further

opportunity for reflection

in this case.
The government points
that

paralleled

provided

for a

good faith

the

out that the guideline

statutory

provision

possible departure

effort" to

had

provision
originally

where defendant

made "a

provide substantial assistance.

See
___

U.S.S.G. App. C, amendment

No. 290 (November 1989), deleting

the "good

and substituting

faith" language

that the defendant provide

the

Commission's

substantial assistance.

stated reason

more

than mere "willingness"

does

not

cast

much

light

the requirement
However,

for the

change--to require

to provide

information, id.-___

on

substantial.

-8-8-

how

much

information

is

In

fact,

government

have

no

is in any way

its authority
faith

we

reason

to

confused about the

that

the

broad scope of

to discern "substantial assistance"

in a good

proffer of specific information about a drug ring by a

low-level defendant.
prosecutors

Rather, we

have a firm impression that

have taken a hard line

in determining what they

will regard as substantial cooperation.

harsh

to

many,

explain--if
difficult
all

believe

they

had

is likely
any

that

duty

the

to

prosecutors would

explain--that

it

is

for them to tell if a defendant has actually given

that he

promise

it

While this will seem

or

she knows.

Thus,

of a reward for results,

they

might argue,

the

and only for results, is a

necessary resort.
On

this

suggested that
discretion.

appeal,

counsel

Jorge-Torres

the prosector misunderstood the

Further, there is

was motivated

for

not

scope of his

no claim that the prosecutor

by an unconstitutional purpose
________________

discrimination, a very small

has

such as racial

loophole that the Supreme Court

has left open for possible judicial

review of a prosecutor's

refusal

See Wade, 112

___ ____

1843.

to move for

a departure.

S. Ct. at

Defendant's brief does refer to this loophole but only

to assert

the equal

rejected.
Affirmed.
________

protection claim already

addressed and

-9-9-