United States v. Tomas Perez-Sanchez

NOT RECOMMENDED FOR PUBLICATION
File Name: 10a0477n.06
No. 09-3094 FILED
Aug 04, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
TOMAS PEREZ-SANCHEZ, ) OHIO
)
Defendant-Appellant. )
Before: SILER and SUTTON, Circuit Judges; CLELAND, District Judge.*
SILER, Circuit Judge. Tomas Perez-Sanchez pled guilty to reentering the country after
deportation. At sentencing, he urged the district court to decrease his sentence due to disparities
between his Guideline range and that of similarly situated defendants sentenced in districts with fast-
track programs. The district court rejected this argument and sentenced Perez-Sanchez to 40
months’ imprisonment (a below-Guideline sentence). For the reasons discussed below, we
AFFIRM his sentence.
FACTUAL AND PROCEDURAL BACKGROUND
Perez-Sanchez pled guilty to violating 8 U.S.C. § 1326(a) and (b)(2) by illegally reentering
the United States after being deported. At sentencing, he sought a four level variance from his 46-57
month Guideline range on the basis that a sentence within that range would result in an unwarranted
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 09-3094
United States v. Perez-Sanchez
sentencing disparity from sentences imposed in districts participating in fast-track programs.
Specifically, he urged the district court to consider a Guideline range of 30 to 37 months based on
the fast-track program sentencing range available in other districts. The district court reduced the
sentence it imposed by six months to account for time Perez-Sanchez had spent in state custody on
a domestic violence charge for which Perez-Sanchez did not have counsel but declined to grant a
reduction based on a sentencing disparity. It stated:
I do not believe that it’s appropriate to adjust the sentence in this district because of
the compelling and overwhelming necessity that has led to the, quote, fast track
program in the border districts. I think, therefore, I’m not going to take that into
account. I understand that I could; however, I think in light of my understanding of
prevailing case law and also the difference in circumstances between this district and
those districts, I’m not going to take that into account.
Later, the government sought clarification from the district court about its reasoning for refusing to
consider the disparity in sentencing Perez-Sanchez. Government’s counsel asked, “The Court’s
statement that it would not follow the border states’ fast track program, does the Court state that as
a matter of both law and factor [sic] simply a matter of law. Even if you could, you would not do
it?” The court responded, “Even if I could, I would not do it—.” The court considered Perez-
Sanchez’s multiple reentries and criminal history category as aggravating factors that encouraged
the court to remain within the Guidelines and sentenced Perez-Sanchez to 40 months’ imprisonment.
ANALYSIS
On appeal, Perez-Sanchez challenges only the procedural reasonableness of the district
court’s sentence. He argues that the district court erred by concluding it could not consider the
disparity created by the fast-track programs in some districts. We review both the procedural and
-2-
No. 09-3094
United States v. Perez-Sanchez
substantive reasonableness of the district court’s sentence using a deferential abuse of discretion
standard. United States v. Perez-Vasquez, 570 F.3d 692, 695 (6th Cir. 2009) (citing Gall v. United
States, 552 U.S. 38, 51 (2007)). Perez-Sanchez is correct that the district court could have deviated
from the Guidelines if it disagreed with the policy underlying the disparities created by the presence
of fast-track programs in other districts. See United States v. Camacho-Arellano, No. 07-5427, 2010
U.S. App. Lexis 14569, at *16-17 (July 16, 2010). However, the record is clear that the district
court, regardless of its discretion, would not have decreased Perez-Sanchez’s sentence to account
for fast track disparities. See United States v. Porter, 312 F. App’x 772, 776 (6th Cir. 2009)
(explaining that remand is only appropriate when the record shows “that the district court was
unaware of its authority or would have imposed a different sentence post Spears”); see also United
States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008) (“[W]e presume that the district court
understood its discretion, absent clear evidence to the contrary.”).
In its first statement the district court indicated that it could consider the fast-track disparity
but chose not to. This choice not to consider the fast-track disparity indicates that even if we were
to remand for the district court to consider the disparity, it would not find the argument persuasive.
The district court’s second statement clearly indicates that regardless of whether the court could
consider fast-track disparities, it would not in this case. Thus, both statements of the district court
indicate that it would not have decreased Perez-Sanchez’s sentence, regardless of its discretion.
AFFIRMED.
-3-