United States v. Ricardo Perez-Vasquez ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0238p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 07-6390
v.
,
>
-
Defendant-Appellant. -
RICARDO PEREZ-VASQUEZ,
-
N
Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 05-00086-001—J. Ronnie Greer, District Judge.
Argued: March 10, 2009
*
Decided and Filed: April 30, 2009
**
Before: KETHLEDGE and WHITE, Circuit Judges; POLSTER, District Judge.
_________________
COUNSEL
ARGUED: Boyd Walter Venable III, LAW COMING, Sevierville, Tennessee, for
Appellant. Robert M. Reeves, ASSISTANT UNITED STATES ATTORNEY,
Greeneville, Tennessee, for Appellee. ON BRIEF: Boyd Walter Venable III, LAW
COMING, Sevierville, Tennessee, for Appellant. Nancy Stallard Harr, ASSISTANT
UNITED STATES ATTORNEY, Greeneville, Tennessee, for Appellee.
_________________
OPINION
_________________
WHITE, Circuit Judge. Appellant Ricardo Perez-Vasquez pled guilty of illegally
reentering the United States, 8 U.S.C. § 1326(a), and was sentenced to 71 months in
*
This decision was originally issued as an “unpublished decision” filed on April 30, 2009. The
court has now designated the opinion as one recommended for full-text publication.
**
The Honorable Dan A. Polster, United States District Judge for the Northern District of Ohio,
sitting by designation.
1
No. 07-6390 United States v. Perez-Vasquez Page 2
prison, to run consecutively to a state sentence yet to be completed. He challenges his
sentence as creating an unwarranted disparity and seeks remand for resentencing. We
AFFIRM.
Perez-Vasquez entered the United States sometime before March of 2003. On
September 29, 2003, he was convicted in Tennessee state court of one count of
aggravated burglary and one count of sexual battery, and sentenced to three years’
incarceration (with 10.8 months left to serve) and three years’ probation. The
Government deported Perez-Vasquez to Mexico on January 20, 2004.
Perez-Vasquez reentered the United States in February 2004. He was arrested
in April 2005 and charged with aggravated burglary. In July 2005 he pled guilty in
Tennessee state court and was sentenced to three years’ imprisonment.
The following October, a federal grand jury indicted Perez-Vasquez for
reentering the United States after deportation. See 8 U.S.C. § 1326. In the federal
proceeding, the Government filed a notice of enhancement, asserting that a conviction
of reentry under 8 U.S.C. § 1326(a) would lead to an enhanced sentence under 8 U.S.C.
§ 1326(b)(2) because Perez-Vasquez’s prior removal from the United States “was
subsequent to a conviction for commission of an aggravated felony,” as defined in
8 U.S.C. § 1101(a)(43).
On June 6, 2007, Perez-Vasquez entered a notice of intent to plead guilty. Two
days later, the U.S. Attorney entered a Stipulation of Factual Basis and, on June 11,
Perez-Vasquez entered a guilty plea without the benefit of a plea agreement.
A probation officer calculated Perez-Vasquez’s advisory Guidelines range using
a base offense level of eight and applying a sixteen-level enhancement for a previous
deportation for a crime of violence. U.S.S.G. § 2L1.2(a) (“Base Offense Level: 8”);
U.S.S.G. § 2L1.2(b)(1)(A)(ii) (sixteen level enhancement for previous deportation after
a crime of violence). The probation officer also incorporated a three-level reduction for
acceptance of responsibility, making the final offense level 21. Perez-Vasquez’s past
convictions, his status as a probationer, and the instant offense occurring less than two
No. 07-6390 United States v. Perez-Vasquez Page 3
years after his previous release from custody, gave Perez-Vasquez nine criminal history
points, placing him in criminal history category IV. Perez-Vasquez’s total offense level
of 21 combined with his criminal history category IV to place him in the 57 to 71 months
Guidelines range.
At the sentencing hearing, Perez-Vasquez made several arguments, two of which
are relevant here. First, he argued that he would suffer an unwarranted disparity in his
sentence because the Eastern District of Tennessee did not participate in an early
disposition or “fast-track” program. The Attorney General authorizes districts to
participate in such programs, allowing courts in those districts to provide a four-level
downward departure to a defendant who makes an early guilty plea. Second, he argued
that his sentence for illegal reentry should be ordered to run concurrently with his
undischarged state-court sentence for aggravated burglary. See U.S.S.G. § 5G1.3(c)
(“[T]he sentence for the instant offense may be imposed to run concurrently, partially
concurrently, or consecutively to the prior undischarged term of imprisonment [in any
other case] to achieve a reasonable punishment for the instant offense.”).
The district court sentenced Perez-Vasquez to 71 months in prison, and ordered
that the sentence run consecutively to his state sentence for aggravated burglary. The
court found that the sentence did not create an unwarranted disparity because Perez-
Vasquez’s prior conviction would have made him ineligible for fast-track treatment. The
court noted its discretion to order that the sentence run concurrently with the
undischarged state sentence, but concluded that the “totally unrelated” nature of the state
and federal crimes made a consecutive sentence more appropriate.
Appellate review of a sentencing decision is limited to determining whether the
sentence is reasonable under an abuse-of-discretion standard. Gall v. United States, 552
U.S. 38, 128 S. Ct. 586, 597 (2007); see also United States v. Grossman, 513 F.3d 592,
595 (6th Cir. 2008). The review is two tiered: the court must review for both procedural
and substantive error. Gall, 552 U.S. at ____, 128 S. Ct. at 597. We review a district
court’s decision to impose a consecutive or concurrent sentence under § 5G1.3 of the
Sentencing Guidelines for abuse of discretion. United States v. Campbell, 309 F.3d 928,
No. 07-6390 United States v. Perez-Vasquez Page 4
930 (6th Cir. 2002). In this circuit, a sentence that falls within the Guidelines enjoys “a
rebuttable presumption of reasonableness.” United States v. Williams, 436 F.3d 706, 708
(6th Cir. 2006). Nevertheless, a sentencing court must still “explain to the parties and
the reviewing court its reasons for imposing a particular sentence.” United States v.
Richardson, 437 F.3d 550, 554 (6th Cir. 2006).
On appeal, Perez-Vasquez argues that early disposition – or “fast-track” –
programs create an unwarranted disparity in sentences, implicating 18 U.S.C.
§ 3553(a)(6) (instructing sentencing courts to consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty
of similar conduct”). He argues that the district court should have ordered a concurrent
sentence as a means of reducing the disparity.
Fast-track programs began in the 1980s as a result of prosecutors’ efforts to
enforce criminal immigration laws in the face of dockets flooded with violations. Such
programs expedited illegal reentry cases by, for example, allowing a defendant
“otherwise potentially chargeable under 8 U.S.C. § 1326(b)” to “plead guilty to a
violation of 8 U.S.C. § 1326(a), which carries a maximum term of two years.” United
States v. Bonnet-Grullon, 53 F. Supp. 2d 430, 432 (S.D.N.Y. 1999) (quoting Alan D.
Bersin and Judith S. Feigin, The Rule of Law at the Margin: Reinventing Prosecution
Policy in the Southern District of California, 12 Geo. Immig. L. J. 285, 287, 301
(1998)); see also United States v. Hernandez-Cervantes, 161 F. App’x 508, 510 (6th Cir.
2005) (unpublished disposition) (explaining that prosecutors in border areas used fast-
track programs “to clear their dockets through either charge-bargaining or agreements
to move for downward departures in return for defendants’ agreements not to file pretrial
motions or contest issues”).
Congress approved of these procedures in the Prosecutorial Remedies and Tools
Against the Exploitation of Children Today Act of 2003 (the PROTECT Act), which
called upon 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
No. 07-6390 United States v. Perez-Vasquez Page 5
the Attorney General and the United States Attorney.” Pub. L. 108-21, § 401(m), 117
Stat. 650, 675 (2003). The ensuing guideline, U.S.S.G. § 5K3.1, provides that “[u]pon
motion of the Government, the court may depart downward not more than 4 levels
pursuant to an early disposition program authorized by the Attorney General of the
United States and the United States Attorney for the district in which the court resides.”
Defendants in districts without fast-track programs have long claimed that the
limited application of these departures creates an unwarranted sentence disparity under
18 U.S.C. § 3553(a)(6). To eliminate the disparity, these defendants argue that
sentencing courts in districts without fast-track programs must consider a parallel
departure for defendants who would receive the benefit of a § 5K3.1 departure if
prosecuted in another district. See Bonnet-Grullon, 53 F. Supp. 2d at 435 (“[I]t is
difficult to imagine a sentencing disparity less warranted than one which depends upon
the accident of the judicial district in which the defendant happens to be arrested.”).
These arguments gained strength in the wake of Booker, but did not achieve their
intended result of mandating a parallel departure. See United States v. Booker, 543 U.S.
220, 245 (2005) (requiring that courts “consider Guidelines ranges,” but permitting them
to “tailor the sentence in light of other statutory concerns as well”); United States v.
Galvez-Barrios, 355 F. Supp. 2d 958, 963 (E.D. Wis. 2005) (“[U]nder Booker and
§ 3553(a)(6), it may be appropriate in some cases for courts to exercise their discretion
to minimize the sentencing disparity that fast-track programs create.”). Instead, courts
of appeals have generally declined to require a downward departure based on a
defendant’s claimed eligibility for a fast-track program in another district. See, e.g.,
United States v. Hernandez-Fierros, 453 F.3d 309, 314 (6th Cir. 2006).1 Some courts
reasoned that the difference in sentences across districts did not amount to a disparity
1
See also United States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (upholding the lower
court’s denial of a below-Guidelines sentence and noting that such a downward departure might not even
be permissible); United States v. Montes-Pineda, 445 F.3d 375, 379-80 (4th Cir. 2006); United States v.
Martinez-Martinez, 442 F.3d 539, 543 (7th Cir. 2006) (“That some courts have chosen to avoid disparity
does not mean that all district courts are compelled to adjust a sentence downward from the advisory
guidelines range in order for that sentence to be reasonable.”); United States v. Sebastian, 436 F.3d 913,
916 (8th Cir. 2006); United States v. Marcial-Santiago, 447 F.3d 715, 718 (9th Cir. 2006). But cf. United
States v. Morales-Chaires, 430 F.3d 1124, 1131 (10th Cir. 2005) (noting that it need not resolve the issue,
and holding, based on the other § 3553(a) factors, that the Guidelines sentence was reasonable).
No. 07-6390 United States v. Perez-Vasquez Page 6
because Congress, by endorsing fast-track programs in the PROTECT Act, “was
necessarily providing that the sentencing disparities that result from these programs are
warranted and, as such, do not violate § 3553(a)(6).” United States v. Marcial-Santiago,
447 F.3d 715, 718 (9th Cir. 2006). The Sixth Circuit reached a similar conclusion,
holding that “fast-track guidelines reductions were specifically authorized by statute due
to the unique and pressing problems related to immigration in certain districts” and,
therefore, the resultant disparity “does not run counter to § 3553(a)’s instruction to avoid
unnecessary sentencing disparities.” Hernandez-Fierros, 453 F.3d at 314. (“In so
balancing the 18 U.S.C. § 3553(a) factors, the court appropriately addressed defendant’s
sentencing disparity concerns”).
Under 18 U.S.C. § 3584, “[i]f multiple terms of imprisonment are imposed on
a defendant at the same time, or if a term of imprisonment is imposed on a defendant
who is already subject to an undischarged term of imprisonment, the terms may run
concurrently or consecutively.” The code instructs a court making such a decision to
“consider, as to each offense for which a term of imprisonment is being imposed, the
factors set forth in section 3553(a).” Id. Section 3553(a) instructs the court to consider
a list of seven factors when determining a sentence. These factors include, “the nature
and circumstances of the offense and the history and characteristics of the defendant,”
the need to “protect the public from further crimes of the defendant,” and “the need to
avoid unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” Id. § 3553(a)(1), (2), & (6).2
2
The seven 18 U.S.C. § 3553(a) factors are: (1) “the nature and circumstances of the offense and
the history and characteristics of the defendant”; (2) “the need for the sentence imposed–(A) to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the
defendant; and (D) to provide the defendant with needed educational or vocational training, medical care,
or other correctional treatment in the most effective manner”; (3) “the kinds of sentences available”; (4) the
Guidelines sentence; (5) any pertinent policy statement issued by the Sentencing Commission; (6) “the
need to avoid unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct”; and (7) “the need to provide restitution to any victims of the offense.”
No. 07-6390 United States v. Perez-Vasquez Page 7
The Guidelines also provide some instruction on consecutive versus concurrent
sentencing. Under these facts, § 5G1.3 explains that a court may impose a sentence that
runs “concurrently, partially concurrently, or consecutively to the prior undischarged
term of imprisonment to achieve a reasonable punishment for the instant offense.”
U.S.S.G. § 5G1.3(c). The commentary also provides a note regarding the application of
subsection (c), which includes specific factors the court should consider.3 U.S.
Sentencing Guidelines Manual § 5G1.3 cmt. n.3 (2007). Nevertheless, “where a district
court has considered the factors listed in 18 U.S.C. § 3553(a) and the applicable
Guidelines and policy statements in effect at the time of sentencing, the district court’s
decision whether to impose a concurrent or consecutive sentence pursuant to § 5G1.3 is
discretionary.” United States v. Watford, 468 F.3d 891, 916 (6th Cir. 2006); see also
United States v. McClellan, 164 F.3d 308, 310 (6th Cir. 1999) (noting no “requirement
that a district court make specific findings relating to each of the factors considered”).
Perez-Vasquez does not assert that the district court failed to consider the
appropriate factors. Rather, he asserts that the court abused its discretion in declining
to order that the federal sentence run concurrently with his undischarged state sentence
under the circumstance that he was not eligible for fast-track treatment due to the district
in which he was prosecuted. This argument, however, runs contrary to the law in this
and other circuits. While the district court was free to consider this as a factor in both
fashioning a sentence and deciding whether it should run consecutively or concurrently,
3
The commentary explains:
(A) In General.–Under subsection (c), the court may impose a sentence concurrently,
partially concurrently, or consecutively to the undischarged term of imprisonment. In
order to achieve a reasonable incremental punishment for the instant offense and avoid
unwarranted disparity, the court should consider the following:
(i) The factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a));
(ii) The type (e.g., determinate, indeterminate/parolable) and length of the prior
undischarged sentence;
(iii) The time served on the undischarged sentence and the time likely to be served
before release;
(iv) The fact that the prior undischarged sentence may have been imposed in state court
rather than federal court, or at a different time before the same or different federal court;
and
(v) Any other circumstance relevant to the determination of an appropriate sentence for
the instant offense.
U.S. Sentencing Guidelines Manual § 5G1.3 cmt. n.3 (2007).
No. 07-6390 United States v. Perez-Vasquez Page 8
it was not obliged to impose a concurrent sentence simply because the district did not
have a fast-track program.
We AFFIRM the district court’s sentence.