United States v. Isaias Sarabia-Santiago

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4453
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISAIAS SARABIA-SANTIAGO, a/k/a Adriano Primo,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:10-cr-00183-1)
Submitted: September 26, 2011 Decided: October 27, 2011
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, Erik S. Goes,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In January 2011, Isaias Sarabia-Santiago pled guilty
to illegal reentry by a previously deported aggravated felon, in
violation of 8 U.S.C. § 1326(a), (b)(2) (2006). The district
court granted Sarabia-Santiago’s request for a downward variance
from his advisory Guidelines range of forty-one to fifty-one
months’ imprisonment, and sentenced Sarabia-Santiago to a
thirty-month term of imprisonment. In support of its variance
decision and to explain the extent of that variance, the
district court noted that: (1) Sarabia-Santiago committed the
offense underlying his prior aggravated felony conviction at a
relatively young age (19), he received a minimal term of
imprisonment for that offense, and he had otherwise abided by
the law; and (2) Sarabia-Santiago would not receive credit for
the thirty-six days he served in administrative custody prior to
commencement of his federal case. This appeal timely followed.
On appeal, Sarabia-Santiago challenges the
reasonableness of his variance sentence. First, Sarabia-
Santiago maintains the court should not have relied on U.S.
Sentencing Guidelines Manual (“USSG”) § 2L1.2 (2010) to set the
offense level because this guideline — and particularly the
graduated increase in offense levels — has no “empirical support
and does not reflect the Sentencing Commission’s expert role in
the federal sentencing system.” (Appellant’s Br. at 9).
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Sarabia-Santiago next asserts the district court abused its
discretion in denying his request for a variance based on the
unwarranted sentencing disparities that result from the selected
application of USSG § 5K3.1, p.s., the so-called “fast-track”
disposition program. Sarabia-Santiago raised both of these
arguments in the district court. For the reasons discussed
below, we reject these contentions and affirm.
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 46, 51 (2007); see also United States v.
Shealey, 641 F.3d 627, 634 (4th Cir.), petition for cert. filed,
__ U.S.L.W. __ (U.S. July 21, 2011) (No. 11-5496). This review
requires appellate consideration of both the procedural and
substantive reasonableness of a sentence. Gall, 552 U.S. at 51.
In determining procedural reasonableness, this court
considers whether the district court properly calculated the
defendant’s advisory Guidelines range, considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed any arguments presented by
the parties, and sufficiently explained the selected sentence.
Id. “Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence, it must place on the
record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted). An
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extensive explanation is not required as long as the appellate
court is satisfied “‘that [the district court] has considered
the parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.’” United States v.
Engle, 592 F.3d 495, 500 (4th Cir.) (alterations in original)
(quoting Rita v. United States, 551 U.S. 338, 356 (2007)), cert.
denied, 131 S. Ct. 165 (2010). Upon concluding there is “no
significant procedural error,” we next assess the substantive
reasonableness of the sentence, taking “‘into account the
totality of the circumstances, including the extent of any
variance from the Guidelines range.’” United States v. Morace,
594 F.3d 340, 346-47 (4th Cir.) (quoting Gall, 552 U.S. at 51),
cert. denied, 131 S. Ct. 307 (2010).
Sarabia-Santiago first contends his sentence is
unreasonable because the sixteen-level enhancement authorized by
USSG § 2L1.2(b)(1)(A) is an arbitrary guideline, enacted without
deliberation or empirical justification, that should not be
afforded deference. This argument amounts to a policy attack on
the applicable enhancement provision, and we conclude it is
without merit. 1 Accord United States v. Mondragon–Santiago, 564
1
We have previously rejected this very argument, albeit in
unpublished, non-binding decisions. See United States v.
Palacios-Herrera, 403 F. App’x 825, 827 (4th Cir. 2010)
(unpublished) (rejecting defendant’s challenge to the
reasonableness of his sentence “because the guideline under
(Continued)
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F.3d 357, 365–67 (5th Cir.) (explaining that, although “district
courts certainly may disagree with the Guidelines for policy
reasons and may adjust a sentence accordingly[,] . . . if they
do not, we will not second-guess their decisions under a more
lenient standard simply because the particular Guideline is not
empirically-based”), cert. denied, 130 S. Ct. 192 (2009).
Sarabia-Santiago next assigns error to the district
court’s decision not to vary downward on the basis of the
sentencing disparities that result from selected application of
the fast-track program. 2 While Sarabia-Santiago concedes his
argument is contrary to this court’s decision in United States
v. Perez-Pena, 453 F.3d 236 (4th Cir. 2006), he questions
whether the Supreme Court’s decision in Kimbrough v. United
which he was sentenced is not based on empirical study conducted
by the Sentencing Commission”), cert. denied, 131 S. Ct. 2918
(2011); United States v. Jimenez-Hernandez, 311 F. App’x 578,
579 (4th Cir. 2008) (unpublished) (same); see also United States
v. Garcia-Aguilera, No. 10-5316, 2011 WL 3268202 (4th Cir. Aug.
1, 2011) (unpublished) (holding presumption of reasonableness
not overcome simply because district court failed to reject
policy of guideline); United States v. Mendoza-Mendoza, 413 F.
App’x 600, 602 (4th Cir.) (unpublished) (same), cert. denied,
131 S. Ct. 3078 (2011).
2
“‘Fast-tracking’ refers to a procedure that originated in
states along the United States-Mexico border, where district
courts experienced high caseloads as a result of immigration
violations.” United States v. Perez-Pena, 453 F.3d 236, 238
(4th Cir. 2006). In conformity with that practice, prosecutors
seek to obtain pre-indictment pleas by offering to move for a
downward departure under USSG § 5K3.1, p.s.
5
States, 552 U.S. 85, 109-10 (2007), effectively overruled Perez-
Pena.
In Perez-Pena, this court held that the disparities
resulting from the limited application of the fast-track
program, USSG § 5K3.1, p.s., “are ‘warranted’ as a matter of
law,” as “the disparity is due not to the location of the
arrest, but rather to the fact that the Government offered only
one of the defendants a plea bargain.” Perez-Pena, 453 F.3d at
242-43. Although Sarabia-Santiago is correct that this court
has not revisited Perez-Pena since Kimbrough, Perez-Pena is
still controlling in this Circuit. 3
In the alternative, Sarabia-Santiago contends the
district court erroneously concluded there was no disparity
between Sarabia-Santiago’s sentencing range and that of those
defendants who receive a fast-track disposition. Specifically,
Sarabia-Santiago takes issue with the district court’s reliance
on the fact that Sarabia-Santiago did not agree to the required
waiver provisions, arguing those waivers are a quid pro quo for
the Government’s offer of a downward departure, which was not
3
Moreover, we note that the record clearly establishes that
the district court accepted defense counsel’s contention that it
had the authority to vary on this basis. Thus, although raised
in Sarabia-Santiago’s appellate brief, whether Kimbrough permits
a sentencing court to vary on this basis is not implicated in
this case.
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made in this case because the fast-track program is not
available in the Southern District of West Virginia.
This argument attempts to capitalize on the causality
dilemma inherent in those cases where a fast-track disposition
is not authorized. The fact remains, however, that Sarabia-
Santiago did not execute those waivers that would have been
necessary for a fast-track disposition. Accordingly, we
conclude the district court did not err in finding this a
significant distinction between Sarabia-Santiago and those
defendants who receive the benefit of USSG § 5K3.1, p.s. See
id. at 243 (explaining that to compare “the sentences of
defendants who helped the Government to those of defendants who
did not — regardless of why some were in a position to help and
others were not — is comparing apples and oranges”).
Finally, Sarabia-Santiago asserts that his variance
sentence is substantively unreasonable. It is axiomatic that,
when reviewing the substantive reasonableness of the district
court’s sentence, this court must assess the degree to which the
district court varied from the defendant’s advisory Guidelines
range. Gall, 552 U.S. at 51. “The fact that the appellate
court might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the
district court.” Id. Here, the district court properly
calculated the advisory Guidelines range, considered the
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§ 3553(a) factors, and explained the basis for its decision to
vary downward from the Guidelines range by four levels.
Accordingly, we hold Sarabia-Santiago’s sentence is
substantively reasonable.
For the foregoing reasons, we affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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