United States v. Marcial-Santiago , 447 F.3d 715 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-30248
v.  D.C. No.
JOSE MERCED MARCIAL-SANTIAGO, CR-04-00164-SEH
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-30249
v.  D.C. No.
ROBERTO ACOSTA-FRANCO, CR-04-00147-SEH
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 05-30251
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00144-SEH
VICTOR MANUEL SANCHEZ-ACOSTA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted March 6, 2006*
Seattle, Washington
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)
5185
5186 UNITED STATES v. MARCIAL-SANTIAGO
Filed May 8, 2006
Before: Diarmuid F. O’Scannlain, Barry G. Silverman, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
5188 UNITED STATES v. MARCIAL-SANTIAGO
COUNSEL
David F. Ness, Federal Defender, District of Montana, Great
Falls, Montana, for the defendants-appellants.
George F. Darragh Jr., U.S. Attorney’s Office, Great Falls,
Montana, for the plaintiff-appellee.
OPINION
GOULD, Circuit Judge:
Jose Marcial-Santiago, Roberto Acosta-Franco, and Victor
Sanchez-Acosta (“Appellants”) appeal the sentences they
received upon pleading guilty and being convicted of being
illegal aliens found in the United States after deportation in
violation of 8 U.S.C. § 1326(a). Appellants were prosecuted
and sentenced in the District of Montana, which does not have
a fast-track program. They contend that the disparity between
their sentences, and the sentences imposed on similarly-
situated defendants who are prosecuted in districts with fast-
track programs, is unwarranted and renders their sentences
“unreasonable” within the meaning of United States v.
Booker, 543 U.S. 220 (2005). Appellants also contend that
this disparity violates their rights to due process and equal
UNITED STATES v. MARCIAL-SANTIAGO 5189
protection. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
I
On October 13, 2004, Acosta-Franco and Sanchez-Acosta
were denied entry into Canada from the Sweetgrass Port of
Entry in Montana. U.S. Border Patrol agents arrested the two
men on October 15, 2004, after determining that they had
prior felony convictions and had previously been deported
from the United States. Also in October 2004, the Department
of Homeland Security received a report that Marcial-Santiago,
a previously removed illegal alien, had returned to the Great
Falls, Montana area. Arresting Marcial-Santiago on Novem-
ber 8, 2004, U.S. Border Patrol agents confirmed that he had
been deported to Mexico on three prior occasions.
Upon the entry of their guilty pleas, Acosta-Franco,
Sanchez-Acosta, and Marcial-Santiago were convicted of ille-
gally reentering the United States after deportation in viola-
tion of 8 U.S.C. § 1326(a). In sentencing memoranda and at
their sentencing hearings, Appellants argued that the disparity
in sentences created by the unavailability of a fast-track pro-
gram in the District of Montana is unwarranted, offends Con-
gress’s goal of sentencing uniformity, and violates their due
process and equal protection rights. The district court rejected
these arguments and sentenced each appellant to a term of
imprisonment within the applicable Sentencing Guidelines
range;1 Acosta-Franco received a 66-month sentence,
Sanchez-Acosta received a 46-month sentence, and Marcial-
Santiago received a 50-month sentence. Appellants filed
timely appeals, which we consolidated for review.
1
The Presentence Report (“PSR”) for Acosta-Franco recommended a
Guidelines range of 57 to 71 months. The PSRs for Sanchez-Acosta and
for Marcial-Santiago recommended Guidelines ranges of 41 to 51 months.
5190 UNITED STATES v. MARCIAL-SANTIAGO
II
We review sentences imposed after Booker for reasonable-
ness, as is required by Booker, even when these sentences are
within the Guidelines ranges. United States v. Plouffe, 436
F.3d 1062 (9th Cir. 2006), amended by ___ F.3d ___, No. 05-
30045, 2006 WL 1044228, at *4 (9th Cir. Apr. 21, 2006). In
conducting our review, we consider whether the district court
accurately calculated the Guidelines range and, if it did,
whether the sentence is reasonable in light of the sentencing
factors set forth in 18 U.S.C. § 3553(a).2 See United States v.
Cantrell, 433 F.3d 1269, 1279-80 (9th Cir. 2006). We review
de novo the constitutionality of a federal statute. See Eunique
v. Powell, 302 F.3d 971, 973 (9th Cir. 2002).
III
We turn first to Appellants’ contention that the disparity
between their sentences, and the sentences they would have
received if they had been prosecuted and convicted in a dis-
trict with a fast-track program, is unwarranted.3 Appellants
2
These factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the
sentence imposed; (3) the kinds of sentences available; (4) the kinds of
sentences and the sentencing range established by the Sentencing Guide-
lines; (5) pertinent policy statements issued by the Sentencing Commis-
sion; (6) the need to avoid unwarranted sentencing disparities among
defendants who have similar criminal records and have been found guilty
of similar conduct; and (7) the need to provide restitution to victims. 18
U.S.C. § 3553(a).
3
Appellants do not contend that the district court erroneously denied
them a downward departure under the Guidelines to avoid the disparity in
sentences, and thus that the court did not accurately calculate the applica-
ble Guidelines ranges. We addressed and rejected this argument in United
States v. Banuelos-Rodriguez, 215 F.3d 969 (9th Cir. 2000) (en banc), a
pre-Booker decision in which we held that a defendant’s prosecution in a
district that did not have a fast-track program was not a proper ground on
which to base a departure from an applicable Guidelines range. Id. at 978.
We do not consider anything in Booker to alter the rule established by
Banuelos-Rodriguez.
UNITED STATES v. MARCIAL-SANTIAGO 5191
assert that by refusing to impose sentences consistent with the
sentences imposed on defendants in fast-track districts, the
district court did not take adequate heed of “the need to avoid
unwarranted sentence disparities among defendants with simi-
lar records who have been found guilty of similar conduct.”
18 U.S.C. § 3553(a)(6). This alleged error, Appellants argue,
resulted in sentences for Appellants that are greater than nec-
essary to achieve the goals of sentencing set forth in 18
U.S.C. § 3553(a)(2)4 and thus that are unreasonable. See
Booker, 543 U.S. at 260. We disagree.
[1] In the mid-1990s, federal districts along the border
between the United States and Mexico — in Texas, New
Mexico, Arizona, and California — began to use fast-track
programs to address the growing number of immigration and
drug offenses. See United States v. Morales-Chaires, 430 F.3d
1124, 1127 (10th Cir. 2005); Erin T. Middleton, Note, Fast-
Track to Disparity: How Federal Sentencing Policies Along
the Southwest Border are Undermining the Sentencing Guide-
lines and Violating Equal Protection, 2004 UTAH L. REV. 827,
830 (2004). In an effort to manage large caseloads and save
prosecutorial resources, federal prosecutors in these districts
offered shorter sentences to defendants who pleaded guilty at
an early stage in the prosecution and agreed to waive appeal
and other rights. See Morales-Chaires, 430 F.3d at 1127;
Middleton, supra, at 829-32. Prosecutors effectuated the
shorter sentences through charge-bargaining or recommenda-
tions for downward departures at sentencing. See Morales-
Chaires, 430 F.3d at 1127; Middleton, supra, at 829-30.
4
Section 3553(a) requires a court to “impose a sentence sufficient, but
not greater than necessary, to comply with the purposes set forth in
[§ 3553(a)(2)].” These purposes include the need for a sentence to reflect
the seriousness of the crime and promote respect for the law; to provide
punishment for the crime; to afford adequate deterrence; to protect the
public from a defendant’s future crimes; and to provide a defendant with
necessary educational or vocational training, medical care, or other correc-
tional treatment. 18 U.S.C. § 3553(a)(2).
5192 UNITED STATES v. MARCIAL-SANTIAGO
[2] In 2003, in the Prosecutorial Remedies and Tools
Against the Exploitation of Children Today Act of 2003
(“PROTECT Act”), Pub. L. No. 108-21, 117 Stat. 650 (2003),
Congress explicitly authorized downward departures in fast-
track programs. The PROTECT Act directed the U.S. Sen-
tencing 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.” Id., 117 Stat. at 675.
The Sentencing Commission then adopted U.S.S.G. § 5K3.1,
which 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.”
[3] In light of Congress’s explicit authorization of fast-track
programs in the PROTECT Act, we cannot say that the dis-
parity between Appellants’ sentences and the sentences
imposed on similarly-situated defendants in fast-track districts
is “unwarranted” within the meaning of § 3553(a)(6). When
Congress passed the PROTECT Act, it did so with knowledge
that 18 U.S.C. § 3553(a)(6) was directing sentencing courts to
consider the need to avoid unwarranted sentencing disparities.
By authorizing fast-track programs without revising the terms
of § 3553(a)(6), Congress was necessarily providing that the
sentencing disparities that result from these programs are war-
ranted and, as such, do not violate § 3553(a)(6). See United
States v. Martinez-Martinez, 442 F.3d 539, 542 (7th Cir.
2006) (“Given Congress’ explicit recognition that fast-track
procedures would cause discrepancies, we cannot say that a
sentence is unreasonable simply because it was imposed in a
district that does not employ an early disposition program.”);
United States v. Sebastian, 436 F.3d 913, 916 (8th Cir. 2006)
(stating that in passing the PROTECT Act, “Congress and the
President . . . concluded that the advantages stemming from
fast-track programs outweigh their disadvantages, and that
UNITED STATES v. MARCIAL-SANTIAGO 5193
any disparity that results from fast-track programs is not
unwarranted” (internal quotations and citation omitted)).
Accordingly, we conclude that the disparity between Appel-
lants’ sentences and the sentences imposed on similarly-
situated defendants who are prosecuted in fast-track districts
is not unwarranted. It is justified by the benefits gained by the
government when defendants plead guilty early in criminal
proceedings.
[4] Even if this disparity were assumed to be unwarranted,
however, that factor alone would not render Appellants’ sen-
tences unreasonable; the need to avoid unwarranted sentenc-
ing disparities is only one factor a district court is to consider
in imposing a sentence. See 18 U.S.C. § 3553(a); Morales-
Chaires, 430 F.3d at 1131. At Appellants’ sentencing hear-
ings, the district court noted that the Guidelines ranges were
advisory, considered and rejected Appellants’ arguments
regarding the disparity between sentences imposed in the Dis-
trict of Montana and in fast-track districts, and weighed the
other § 3553(a) factors. After completing this review, the
court imposed sentences that are within the Guidelines ranges.
The district court gave thoughtful attention to factors recog-
nized in § 3553(a) and exercised sound discretion to ensure
that the punishment fit the crime and the circumstances of the
appellants. We conclude that the sentences Appellants
received are reasonable, and we will not here disturb the dis-
cretion of the sentencing court. See Plouffe, 2006 WL
1044228, at *5.
IV
[5] We turn next to Appellants’ assertion that the PRO-
TECT Act’s provision authorizing fast-track programs vio-
lates their due process and equal protection rights because
similarly situated individuals in districts with fast-track pro-
grams could receive lower sentences. The fast-track provision
of the PROTECT Act applies only to convicted felons, and so
we consider whether the provision is rationally related to a
5194 UNITED STATES v. MARCIAL-SANTIAGO
legitimate government interest. See Chapman v. United
States, 500 U.S. 453, 464-65 (1991); United States v. Carson,
988 F.2d 80, 82 (9th Cir. 1993) (per curiam). Because the
government has a legitimate interest in conserving prosecu-
torial and judicial resources in districts with large numbers of
immigration cases, and fast-track programs are rationally
related to that interest, we conclude that the PROTECT Act’s
authorization of these programs, and their implementation in
some but not all districts, does not violate Appellants’ equal
protection and due process rights.5 See United States v.
Melendez-Torres, 420 F.3d 45, 53 (1st Cir. 2005).
AFFIRMED.
5
In challenges to sentencing regimes, “an argument based on equal pro-
tection essentially duplicates an argument based on due process.” Chap-
man, 500 U.S. at 465; see also Carson, 988 F.3d at 82.