United States v. Vargas

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-23-2007
USA v. Vargas
Precedential or Non-Precedential: Precedential
Docket No. 06-1368
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Vargas" (2007). 2007 Decisions. Paper 1377.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1377
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1368
UNITED STATES OF AMERICA
v.
SANDRO ANTONIO VARGAS,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 05-cr-00265-1)
District Judge: Honorable Paul S. Diamond
Present: SCIRICA, Chief Judge, SLOVITER, McKEE,
RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER
CHAGARES, JORDAN, VAN ANTWERPEN* and SILER**, Circuit Judges
SUR PETITION FOR REHEARING
WITH SUGGESTION FOR REHEARING EN BANC
The petition for rehearing filed by Appellant having been submitted to all judges
who participated in the decision of this court, and to all the other available circuit judges
*
Honorable Franklin S. Van Antwerpen vote limited to panel rehearing only.
**
*Honorable Eugene E. Siler, Senior Judge for the Sixth Circuit, sitting by
designation, vote limited to panel rehearing only.
in active service, and a majority of the judges who concurred in the decision not having
asked for rehearing, and a majority of the circuit judges of the circuit in regular active
service not having voted for rehearing by the court en banc, the petition for rehearing is
hereby denied. Judge Ambro concurs in the denial of the petition and has filed a
separate concurrence.
By the Court,
/s/ Franklin S. Van Antwerpen
Circuit Judge
Date: March 23, 2007
PDB/cc: Elizabeth T. Hey, Esq.
Daniel A. Velez, Esq.
AMBRO, Circuit Judge, concurring sur denial.
I concur in the Court’s denial of rehearing en banc, but write specially to
emphasize what I perceive the panel did and, more importantly, did not hold in this case.
After recognizing the limited scope of the panel opinion, its holdings do not conflict
with United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), as argued in the Petition for
Rehearing En Banc.
The panel here made two relevant holdings: (1) that “a district court’s refusal to
adjust a sentence to compensate for the absence of a fast-track program does not make a
sentence unreasonable,” Slip Op. at 10–11; and (2) that “any sentencing disparity
authorized through an act of Congress cannot be considered ‘unwarranted’ under [18
U.S.C.] § 3553(a)(6),” Slip Op. at 11. I consider these to be correct statements of the
law and fully compatible with our holding in Gunter.
As to the first holding, we said in Gunter that “a sentencing court errs when it
believes it has no discretion to consider the crack/powder cocaine differential
incorporated in the Guidelines.” 462 F.3d at 249. Nothing in Gunter, though,
established a rule that sentencing courts must account for every arguable infirmity in the
Guidelines; rather, it affirmed the inverse rule—flowing directly from United States v.
Booker, 543 U.S. 220 (2005)—that those courts may do so if they are persuaded that the
Guidelines do not sufficiently effect the goals of sentencing set out in § 3553(a). In
short, Booker does not require sentencing courts to vary from the Guidelines range, but
merely allows the practice.
The second holding is likewise not in conflict with Gunter. The panel here held
only that a sentencing court may not, in the fast-track context, rely on § 3553(a)(6)’s
reference to “unwarranted sentence disparities” to justify a sentence that varies from the
advisory Guidelines range. See Slip Op. at 11. This, however, does not preclude any of
the other factors listed in § 3553(a) from serving as a basis for a variance from the
advisory Guidelines range. For example, § 3553(a)(1) requires that a sentencing court
consider “the history and characteristics of the defendant.” Under this provision,
consideration of an individual defendant’s early plea of guilty and waiver of various
procedural rights—facts which are the basis of a § 5K departure motion in fast-track
districts—is yet permissible when a district court is exercising its discretion at Gunter’s
step three. See United States v. Fernandez, 443 F.3d 19, 33–34 (2d Cir. 2006)
(explaining that § 3553(a)(1) can serve as a basis for a varied sentence even when the
Government does not make a § 5K departure motion).
Gunter held that a district court errs when it believes it may not vary from the
advisory Guidelines range at step three. 462 F.3d at 249. It also held that when
sentencing policy is expressed in the Guidelines, courts of appeals likewise may not
enforce (at step three) the strict implications of that policy on the length of a defendant’s
sentence, but instead may only review for ultimate reasonableness. Id. at 248. If it were
otherwise, the Guidelines would not be truly advisory, as Booker requires. I do not read
the panel opinion here to be in conflict with Booker or Gunter, and I thus concur in the
denial of rehearing en banc.