United States v. Efrain Longarica ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 11-3165
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Efrain Garcia Longarica
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: October 15, 2012
Filed: November 8, 2012
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Before LOKEN, SMITH, and BENTON, Circuit Judges.
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LOKEN, Circuit Judge.
We consider again the discretion of a district court to vary downward from the
advisory guidelines sentencing range because of the unavailability of a “Fast Track”
departure in the district.
Efrain Garcia Longarica, a citizen of Mexico, unlawfully entered the United
States in 1995, when he was 16 years old. After he was deported in 1998, he
unlawfully reentered and moved to Minnesota in 1999. In 2002, Longarica pleaded
guilty to an aggravated drug felony. He was sentenced to 60 months in prison and
deported in February 2007 after his release from prison. Longarica was arrested in
April 2011 in Saint Paul during an investigation of a suspected heroin distribution
network and admitted he had unlawfully reentered the United States in June 2009.
Charged with unlawful reentry after removal following an aggravated felony
conviction, he pleaded guilty in June 2011. See 8 U.S.C. § 1326(a) and (b)(2); 6
U.S.C. §§ 202 and 557.
At sentencing, after determining a total offense level of 21, the district court1
overruled Longarica’s objection to the PSR’s recommendation of Criminal History
Category III, resulting in an advisory guidelines sentencing range of 46 to 57 months
in prison. Longarica moved for a downward departure to Criminal History Category
II because Category III overstated his criminal history, which would reduce his
advisory range to 41 to 51 months, and for a downward variance to 24 months
because he had spent five months in a harsh county jail awaiting sentencing; his
father had built a house in Mexico with money Longarica earned in the United States,
and he intended to return there permanently with his wife and child; and his display
of “true signs of reform.” Defense counsel concluded:
Even the government recognizes that he’s shown true signs of reform.
He came in here, he pled to an information, he didn’t file any motions,
he -- he immediately pled guilty and proceeded before this Court for
sentencing. And I’m -- in any other district, that does fast track, that
would be a four-level reduction, and so that is why, ultimately, based on
all of that, the Court should impose a sentence of 24 months.
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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The government agreed Longarica “has been a fully cooperative defendant and
has been contrite in admitting his violation.” Nevertheless, in light of his criminal
history and the circumstances surrounding his arrest, the government urged a 46-
month sentence, the bottom of the advisory range. The district court denied
Longarica’s motions and sentenced him to 46 months in prison, noting “that a
consideration of section 3553(a) factors would lead the Court to -- to render the same
sentence even if it had sustained defendant’s [criminal history category] objection.”
Longarica appeals his sentence.
Two weeks after sentencing, we ruled that, in determining whether to grant a
downward variance, “the absence of a Fast-Track program and the resulting
difference in the guidelines range should not be categorically excluded as a
sentencing consideration.” United States v. Jimenez-Perez, 659 F.3d 704, 711 (8th
Cir. 2011) (emphasis in original). We remanded for resentencing because the district
court, feeling bound by our prior decisions, had ruled “that it lacked discretion to vary
downward from Jimenez-Perez’s advisory Guidelines range in light of Fast Track’s
unavailability in the Eastern District of Missouri.” Id. Relying on Jimenez-Perez,
Longarica argues that the district court committed procedural error in failing to
recognize its authority to grant a downward variance because the “Fast-Track”
downward departure authorized by U.S.S.G. § 5K3.1 was not available in the District
of Minnesota.2 We disagree.
2
Section 5K3.1, adopted in 2003 to implement a directive of Congress in the
PROTECT Act, provides: “Upon 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.”
The United States Attorney’s Office for the District of Minnesota announced
it would implement a non-retroactive fast-track program on March 1, 2012. See
United States v. Rascon-Olivas, No. 10-CR-0230(21), 2012 WL 695838, at *1 n.1 (D.
Minn. Feb. 28, 2012).
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Longarica’s reliance on Jimenez-Perez is misplaced. In that case, we
concluded only that the district court erred in declaring it lacked discretion to vary
downward on this ground. The defendant in Jimenez-Perez had moved for a
downward variance to avoid unwarranted sentencing disparities resulting from the
lack of a Fast-Track program in his district. Here, as in United States v. Elodio-
Benitez, 672 F.3d 584, 586 (8th Cir. 2012), Longarica did not move for a downward
variance on this ground, “did not pursue the issue at sentencing, and the district court
gave no hint that it misunderstood the extent of its sentencing discretion.” Accord
United States v. Paulino-Duarte, 670 F.3d 842, 844 (8th Cir. 2012).
Defense counsel’s passing reference to a four-level departure that would be
available in Fast-Track districts did not require the district court to acknowledge, sua
sponte, that it would have discretion to take this factor into account in determining
whether to grant Longarica’s request for an even greater downward variance on other
grounds.3 Nor did this passing reference take into account that § 5K3.1 departures
in Fast-Track districts must be made “upon motion by the government,” a motion that
is made only if the defendant meets eligibility and other requirements prescribed by
the Attorney General. See Memorandum from the Deputy Attorney General for all
United States Attorneys (Jan. 31, 2012), available at: http://www.justice.gov/dag/fast-
track-program.pdf. In sum, the passing reference did not begin to fulfill the steps and
preconditions for a sufficient showing of a disparity with similarly situated
defendants in a Fast-Track district. Cf. United States v. Ramirez, 675 F.3d 634, 640-
45 (7th Cir. 2011).
The judgment of the district court is affirmed.
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3
A 4-level downward departure under § 5K3.1 would have placed Longarica
at offense level 17 and Criminal History Category III, resulting in an advisory range
of 30 to 37 months in prison. He urged a downward variance to 24 months.
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