United States v. Arzola-Casas, Jesus , 207 F. App'x 667 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2006*
Decided November 29, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2061
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 05 CR 1005
JESUS M. ARZOLA-CASAS,
Defendant-Appellant. Amy J. St. Eve,
Judge.
ORDER
Jesus Arzola-Casas pleaded guilty to reentering the United States after
having been ordered removed from the United States following two aggravated
felony convictions, see 8 U.S.C. §§ 1326(a), (b)(2), and was sentenced to 33 months’
imprisonment. On appeal, Arzola-Casas argues that his sentence is unreasonably
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-2061 Page 2
high because similarly situated defendants in districts with “fast-track” procedures
for § 1326 convictions receive lower sentences than he. We affirm.
Arzola-Casas was ordered removed to Mexico in 2003 following his
convictions for burglary and obstruction of justice, both of which are aggravated
felonies. Approximately one year later, he illegally reentered the United States. In
2005, he was convicted of aggravated battery of a police officer, and after serving
out his sentence on this conviction, he was released to immigration officials and
charged with illegal reentry into the United States.
At sentencing Arzola-Casas argued for a below-guidelines sentence based on
the disparity between sentences imposed in districts with fast-track programs and
those without. Fast-track programs allow the government to request a downward
departure in the offense level for § 1326 convictions if the Attorney General and the
United States Attorney authorize the use of such a program in that district. See
U.S.S.G. § 5K3.1, United States v. Martinez-Martinez, 442 F.3d 539, 542 (7th Cir.
2006). The district court here, however, declined to depart below the guidelines,
noting our recent decisions in Martinez-Martinez, 442 F.3d at 539, holding that the
district court need not depart below the guidelines range to compensate for
disparities created by the selective use of fast-track programs. The district court
considered the relevant sentencing factors under 18 U.S.C. § 3553(a)(2), including
the seriousness of the crime of illegal reentry; the need to deter Arzola-Casas from
future illegal reentries; the need to protect the public from Arzola-Casas, who has a
history of violent criminal behavior; and the hardship to his family. The court
imposed a 33-month term of imprisonment, the lowest sentence within the
guideline range.
On appeal Arzola-Casas urges us to overrule Martinez-Martinez and consider
his sentence unreasonable based on its variance from sentences imposed in
jurisdictions with fast-track programs. He argues that these disparities are
“unwarranted,” and therefore contravene 18 U.S.C. § 3553(a)(6) because they
depend on where the defendant gets arrested, not his individual culpability.
Section 3553(a)(6) requires that a sentencing court consider the “need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.”
We decline Arzola-Casas’ invitation to overrule our recent precedent. The
sentencing disparities created by the use of fast-track programs in a few districts
are not “unwarranted” because Congress explicitly recognized that these procedures
would cause discrepancies. Martinez-Martinez, 442 F.3d at 542.
Since Martinez-Martinez, we have clarified that district courts may not depart
below the guidelines range based on these discrepancies, and we do so again here.
No. 06-2061 Page 3
See United States v. Rodriguez-Rodriguez, 453 F.3d 458, 462 (7th Cir. 2006); United
States v. Galicia-Cardenas, 443 F.3d 553, 555 (7th Cir. 2006).
Arzola-Casas’ sentence falls within the properly calculated guidelines range,
and therefore is presumed reasonable. See United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). We are mindful that the Supreme Court has recently granted a
writ of certiorari in a Fourth Circuit case to determine whether according a
presumption of reasonableness to within-guidelines sentences is consistent with
United States v. Booker, 543 U.S. 220 (2005). United States v. Rita, No. 05-4674,
2006 WL 1144508 (4th Cir. May 1, 2006), cert granted, 75 U.S.L.W. 3246 (U.S. Nov.
3, 2006) (No. 06-5754). Arzola-Casas, however, offers no argument on appeal to
rebut the presumed reasonableness of his sentence. And even without this
presumption, we would regard his sentence as reasonable because the district court
chose the sentence after carefully considering the sentencing factors under
§ 3553(a).
Accordingly, we AFFIRM the judgment of the district court.