United States v. Vega-Castillo , 540 F.3d 1235 ( 2008 )

PER CURIAM:

Appellant Victor Gonzalo Vega-Castillo appeals his 70-month sentence following a plea of guilty to reentering the United States illegally after having been deported or removed, in violation of 8 U.S.C. § 1326(a)(1), (b)(2). Before the district court imposed his sentence, Vega-Castillo asked the district court to vary downward from his applicable sentencing range of 70 to 87 months imprisonment based on the fact that the district in which he was indicted on the present charge — the Northern District of Florida — did not employ an early disposition program, and this resulted in an unwarranted sentencing disparity that should be considered pursuant to 18 U.S.C. § 3553(a)(6).

On appeal, Vega-Castillo requests that this court remand his case to the district court for resentencing and order the district court “to consider the disparity caused by nationally disparate ‘fast-track’ sentencing when considering the factors in 18 U.S.C. § 3553(a).”¹ Vega-Castillo recognizes that we previously held in United States v. Castro, 455 F.3d 1249, 1253 (11th Cir.2006), that “section 3553(a)(6) does not require the district court to depart based on the availability of the [fast-track] departure in only some districts,” but argues that this decision has been overruled by Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).²

As an initial matter, while Vega-Castillo’s appellate brief only cites to Castro, the essence of his argument is that the district court should have considered fast-track disparity as part of the § 3553(a) factors in imposing his sentence. Because two cases following Castro—United States v. Arevalo-Juarez, 464 F.3d 1246, 1251 (11th Cir.2006), and United States v. Llanos-Agostadero, 486 F.3d 1194, 1198-99 (11th Cir.2007) —suggest that district courts are prohibited from considering this disparity in imposing sentence, we also include those cases in our review of Vega-Castillo’s claim.

Under the prior precedent rule, we are bound to follow a prior binding precedent “unless and until it is overruled by this court en banc or by the Supreme Court.” United States v. Brown, 342 F.3d 1245, 1246 (11th Cir.2003). Here, it is undisputed that we have not overruled Castro or its progeny in an en banc decision. Thus, the only issue is whether the Supreme Court has done so.³

For the Supreme Court to overrule a case, its decision must have “actually overruled or conflicted with [this court’s prior precedent].” See United States v. Marte, 356 F.3d 1336, 1344 (11th Cir.2004) (citation and quotation omitted). There is a difference between the holding in a case and the reasoning that supports that holding. Atlantic Sounding Co., Inc. v. Townsend, 496 F.3d 1282, 1284 (11th Cir.2007). Even if the reasoning of an intervening high court decision is at odds with a prior appellate court decision, that does not provide the appellate court with a basis for departing from its prior decision. Id.; compare United States v. Ortiz-Delgado, 451 F.3d 752, 754 n. 1 (11th Cir.2006) (applying the prior precedent rule and refusing to reconsider another panel decision), with United States v. Smith, 934 F.2d 270, 274-75 (11th Cir.1991) (refusing to apply rule because prior case had been implicitly overruled by subsequent Supreme Court decisions).⁴

Fast-track programs originated in federal district courts in the southwestern United States to deal with the large number of illegal re-entry and other immigration cases pending in those districts. See United States v. Campos-Diaz, 472 F.3d 1278, 1279 n. 1 (11th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2085, 167 L.Ed.2d 804 (2007). Congress endorsed the fast-track program in 2003 in the PROTECT Act, Pub.L. No. 108-21, 117 Stat. 650 (2003), which “instructed the United States Sentencing Commission to promulgate a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney.” Campos-Diaz, 472 F.3d at 1279 n. 1 (internal quotation marks and citations omitted).

The Sentencing Commission, in turn, added U.S.S.G. § 5K3.1 to the Sentencing Guidelines, which provides for the downward departure authorized by the PROTECT Act. Id. Specifically, § 5K3.1 provides that “on a motion by the government, a district court may grant a downward departure of up to four levels pursuant to an early disposition or ‘fast-track’ program specifically authorized by the Attorney General and the United States Attorney in the district housing the program.” Arevalo-Juarez, 464 F.3d at 1248.

In January 2005, the Supreme Court rendered the Sentencing Guidelines advisory in the remedial opinion of United States v. Booker, 543 U.S. 220, 233-34, 125 S.Ct. 738, 750-51, 160 L.Ed.2d 621 (2005), but did not immediately explain how an advisory system of guidelines should be applied.

We issued Castro on July 12, 2006. Castro, 455 F.3d at 1249. In Castro, we addressed a situation where a defendant who was prosecuted in a non-fast-track district moved for the district court to use its post-Booker discretion to reduce his sentence by the equivalent of the four-level departure provided for by the fast-track guideline, U.S.S.G. § 5K3.1, but the district court ultimately denied his motion. Id. at 1251. On appeal, we held that “section 3553(a)(6) does not require the district court to depart based on the availability of the [fast-track] departure in only some districts.” Id. at 1253. We reasoned that “[a]ny disparity created by section 5K3.1[, the fast-track guideline,] does not fall within the scope of section 3553(a)(6). When Congress directed the Sentencing Commission to allow the [fast-track] departure for only participating districts, Congress implicitly determined that the [sentencing] disparity was warranted.” Id. at 1252 (internal citation omitted).

Following Castro — and before the district court sentenced Vega-Castillo — we decided Arevalo-Juarez. In that case, the district court, in imposing sentence, indicated that it imposed the defendant’s sentence to effectively “reduc[e] the guideline range four offense levels” because “without this adjustment there will be a disparity in sentencing between this defendant and like defendants who are sentenced in border states where the Attorney General ... has authorized early disposition or fast-track programs.” Arevalo-Juarez, 464 F.3d at 1247-48. However, we vacated the defendant’s sentence and remanded for resentencing, explaining that, in light of our holding in Castro, “it was impermissible to use the disparities created by U.S.S.G. § 5K3.1 as the basis for imposing a [downward variant] sentence of 30 months.” Id. at 1251 & n. 3.

In Llanos-Agostadero, decided after Vega-Castillo’s sentencing hearing, we reiterated that “a [sentencing] court may not consider sentencing disparities associated with early disposition programs in imposing sentence,” and cited Arevalo-Juarez for this proposition. Llanos-Agostadero, 486 F.3d at 1199. We also observed that we could not “say that the sentences received by defendants in districts without fast-track programs are ‘greater than necessary’ to achieve the purposes of § 3553(a)(2) solely because similarly-situated defendants in districts with fast-track programs are eligible to receive lesser sentences.” Id.

Following the parties submission of briefs, the Supreme Court concluded, in Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), that, because the Sentencing Guidelines are advisory, including the craek/powder cocaine disparity provisions, district courts have the ability under 18 U.S.C. § 3553(a)(6) to consider that disparity in imposing sentences. See Kimbrough, 128 S.Ct. at 565-66, 573-76. Moreover, as Vega-Castillo notes on appeal, the Government conceded before the Supreme Court that “[a] district court may therefore sentence based on policy considerations that differ from those reflected in the Guidelines (subject to reasonableness review on appeal).” See Kimbrough, 2007 WL 2461473 (No. 06-6330), Brief for the United States, at 29.

We agree with the Government that Kimbrough did not overrule Castro or its progeny, and so we are bound to apply the prior precedent rule in this appeal. Specifically, Kimbrough never discussed Castro or the cases following it, or otherwise commented on non-crack cocaine disparities, and so Kimbrough did not expressly overrule Castro or its progeny. Moreover, as in Cleckler, the holdings of Kimbrough and Castro are distinguishable. Kimbrough dealt with the court’s ability, post-Booker, to take into consideration the disparity caused by the crack/powder cocaine guideline, U.S.S.G. § 2D1.1, in imposing sentence, while Castro and its progeny dealt with the court’s ability to take into account a sentencing disparity resulting from an entirely different guideline involving fast-track programs, U.S.S.G. § 5K3.1. Thus, the most that can be said of Vega-Castillo’s argument is that it pits “reasoning against holding,” but not “holding against holding.” See Atlantic Sounding Co., Inc., 496 F.3d at 1287 (Carnes, J., concurring).

Finally, we note that “Kimbrough addressed only a district court’s discretion to vary from the Guidelines based on a disagreement with Guideline, not Congressional, policy.” Gomez-Herrera, 523 F.3d at 563; see Kimbrough, 128 S.Ct. at 571 (noting that Congress “mandate[d] only maximum and minimum sentences” and “sai[d] nothing about the appropriate sentences within these brackets”). Moreover, Kimbrough dealt only with certain Guidelines — those that, like the crack cocaine Guidelines, “do not exemplify the Commission’s exercise of its characteristic institutional role.” 128 S.Ct. at 575. Thus, the most that could possibly be argued is that Kimbrough overruled the following: prior precedents holding that a district court cannot vary from the advisory Guidelines based on a disagreement with a Guideline, even where Sentencing Commission policy judgment, not Congressional direction, underlies the Guideline at issue, and even where that policy judgment did not arise from the Commission’s exercise of its characteristic institutional role. Castro, Arevalo-Juarez, and Llanos-Agostadero do not fall within that narrow field. We conclude that Kimbrough did not overrule them. See Castro, 455 F.3d at 1252 (“Congress directed the Sentencing Commission to allow the departure for only participating districts ....” (citing PROTECT Act, Pub.L. No. 108-21 § 401(m)(2)(B), 117 Stat. 650, 675 (2003))).

Thus, we affirm Vega-Castillo’s 70-month sentence.

AFFIRMED.

1 . The Government asserts that this appeal is "moot” because Vega-Castillo's ineligibility for relief "even in a fast-track district” means that we could not afford him "meaningful relief” even if he prevails on appeal. We reject this argument. There is an active case or controversy, and "meaningful relief” is possible. See United. States v. Orrega, 363 F.3d 1093, 1095 (11th Cir.2004) (citing U.S. Const, art. III, § 2) (discussing that a case is moot if there is no active case or controversy); Calderon v. Moore, 518 U.S. 149, 150, 116 S.Ct. 2066, 2067, 135 L.Ed.2d 453 (1996) (noting that a case is moot where no effectual relief whatsoever is possible).

2 . Vega-Castillo also argues that Castro was overruled by Rita v. United States, 551 U.S. -, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). This argument is meritless. Rita did not expressly overrule Castro or its progeny, and did not do so implicitly because it was factually distinguishable. See United States v. Chub-buck, 252 F.3d 1300, 1305 n. 7 (11th Cir.2001) (noting that the prior precedent rule would not apply if intervening on-point case-law from the Supreme Court existed).

3 . The dissent relies on the First Circuit's opinion in United States v. Rodriguez, 527 F.3d 221 (1st Cir.2008), in which the court declined to follow its prior precedent prohibiting the consideration of fast-track disparities in light of the Supreme Court’s decision in Kimbrough. It is important to note that the First Circuit employs a different prior precedent rule. Unlike this circuit, where prior precedent must be followed unless the prior precedent has been overruled by this court en banc or by the United States Supreme Court, the First Circuit allows a panel to depart from prior precedent “in those relatively rare instances in which authority that postdates the original decision, although not directly controlling, nevertheless offers a sound reason for believing that the former panel, in light of fresh developments, would change its collective mind.” Id. at 225 (internal quotations and citation omitted). Thus, unlike the First Circuit, even if the reasoning of Kimbrough is at odds with the reasoning of our prior holdings, we must follow our prior precedents unless Kimbrough overruled them. Moreover, the Fifth Circuit confronted the same issue and held that "[fast-track] precedents were not called into question by Rita or Kimbrough." United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir.2008).

4 . To highlight the narrowness of this circuit’s prior precedent rule, consider United States v. Cleckler, 270 F.3d 1331, 1335 & n. 4 (11th Cir.2001), where we declined to ignore prior precedent because, among other reasons, the Supreme Court case involved the innocent-owner defense in the context of 21 U.S.C. § 881(a)(6), while the panel’s case involved the same defense in the context of 21 U.S.C. § 881(a)(7), even though "section 881(a)(6) parallels section 881(a)(7) and contains an identically worded innocent-owner defense.”