United States v. Lopez-Estrada, Simon

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 22, 2006
Decided October 19, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-2953
UNITED STATES OF AMERICA Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v. No. 04 CR 511
SIMON LOPEZ-ESTRADA, Ruben Castillo,
Defendant-Appellant. Judge.
ORDER
Simon Lopez-Estrada pleaded guilty to unlawful reentry after conviction for
an aggravated felony, 8 U.S.C. § 1326(a), (b)(2). He was sentenced to 57 months’
imprisonment. On appeal, Lopez-Estrada argues that his sentence should be
vacated because (1) the district court overlooked his claim that there is a disparity
in sentences between districts that employ “fast-track” procedures for defendants
convicted under § 1326 and districts that do not; and (2) the district court
improperly increased his sentence based on its determination that he was convicted
of an aggravated felony before removal.
Lopez-Estrada is a Mexican citizen who illegally entered the United States in
1983. In 1999 an Illinois court convicted him of aggravated kidnapping and
sentenced him to 12 years’ imprisonment. Lopez-Estrada was removed from the
No. 05-2953 Page 2
United States in 2002 as an aggravated felon. Before removal, Lopez-Estrada was
warned of the penalties for reentering the United States without permission from
the Attorney General.
Nonetheless, he illegally reentered in 2003. Less than five months later,
Lopez-Estrada was charged in Cook County circuit court with manufacturing and
delivery of cannabis. He was convicted of the offense and taken into federal
custody. In May 2004 he was indicted for illegal reentry. He pleaded guilty to the
indictment.
Before sentencing, Lopez-Estrada urged the court to sentence him below the
advisory guideline range because of an inter-district sentencing disparity caused by
fast-track programs. Fast-track programs offer defendants charged with illegal
reentry lower sentences in exchange for pleading guilty and waiving certain
procedural rights. See Stephanos Bibas, Regulating Local Variations in Federal
Sentencing, 58 Stan. L. Rev. 137, 138 (2005). Federal prosecutors created the
programs to ease court congestion in states that border Mexico; because defendants
must immediately plead guilty and forego appeals, illegal reentry cases can be
processed quickly. See id. at 146. Congress has approved of fast-track procedures.
See Prosecutorial Remedies and Tools Against the Exploitation of Children Today
Act of 2003, Pub.L. No. 108-21, 117 Stat. 650, 675 (2003). Lopez-Estrada argued
that fast-track programs create an unwarranted sentencing disparity, because he
presumably would have received a lower sentence in a state that used the fast-track
system.
At sentencing, the court determined Lopez-Estrada’s total offense level under
the advisory guidelines to be 21 and his criminal history to be category IV. The
court acknowledged concern over the disparity that fast-track programs cause, but
concluded that a sentence within the guidelines was reasonable because Lopez-
Estrada reentered the country after a violent felony conviction and committed
another offense shortly after his return. The court sentenced Lopez-Estrada to 57
months’ imprisonment followed by three years of supervised release.
After Lopez-Estrada filed his original brief, we issued several opinions
rejecting the argument that the absence of a fast-track program in a certain
jurisdiction created an impermissible sentencing disparity in contravention of 18
U.S.C. § 3553(a)(6). See United States v. Martinez-Martinez, 442 F.3d 539 (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. Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006). Galicia-Cardenas relied on
Martinez-Martinez in vacating a sentence imposed after a downward departure
because a district did not have a fast-track program. In his reply brief, Lopez-
No. 05-2953 Page 3
Estrada acknowledges the controlling nature of these decisions, but suggests that
Galicia-Cardenas is flawed because it “prohibit[s]” district courts from considering
sentencing disparities in fast-track and non-fast-track districts, while Martinez-
Martinez permitted consideration of the sentencing disparity.
Lopez-Estrada misreads our precedents. Martinez-Martinez does not imply
that the district court can lower sentences solely because of the fast-track disparity.
In Martinez-Martinez, we held that the sentencing disparity can be considered as a
single, but not controlling, factor. 442 F.3d at 543. Following the logic of Martinez-
Martinez, we held in Galicia-Cardenas that a sentence imposed after a downward
departure entirely on the basis of fast-track programs in other districts cannot be
deemed reasonable. 443 F.3d at 555. We have more recently noted that, “Martinez-
Martinez . . . holds that a sentence in a district without a fast-track program need
not be reduced, and . . . Galicia-Cardenas . . . adds that it must not be reduced.”
United States v. Rodriguez-Rodriguez, 453 F.3d 458, 462 (7th Cir. 2006). Both
decisions are consistent in holding that the absence of a fast-track program in the
sentencing district is not an acceptable reason for imposing a sentence below the
guideline range.
Moreover, every circuit to rule on the issue has held that the availability of
fast-track departures in only some districts does not create an unwarranted
sentencing disparity. See United States v. Castro, 455 F.3d 1249, 1253 (11th Cir.
2006); accord United States v. Mejia, 461 F.3d 158, 164 (2d Cir. 2006); United States
v. Hernandez-Fierros, 453 F.3d 309, 314 (6th Cir. 2006); United States v. Perez-
Pena, 453 F.3d 236, 244 (4th Cir. 2006); United States v. Gomez-Castillo, 179
Fed.Appx. 484, 490-91 (10th Cir. 2006); United States v. Sebastian, 436 F.3d 913,
916 (8th Cir. 2006); United States v. Martinez-Flores, 428 F.3d 22, 30 (1st Cir.
2005). Because the weight of legal authority supports Galicia-Cardenas, we reject
Lopez-Estrada’s invitation to overrule the decision.
Lopez-Estrada also asserts that the district court did not adequately explain
its refusal to grant him a sentence that acknowledges the disparity caused by fast-
track programs. It is true that the district court’s explanation was sparse. The
court acknowledged concern with the effects of the program on sentencing
uniformity, but added that it did not have the facts of the cases that granted fast-
track deviations at its disposal, and that it would instead assess Lopez-Estrada’s
case using its discretion under Booker. Most determinative for the court was Lopez-
Estrada’s decision “not only to re-enter the United States . . . but to come back here
and to return to the criminal justice system in such a short period of time after
you’ve been deported for the other aggravated case, which was a violent felony.”
This statement confirms that the court found most persuasive the nature and
circumstances of Lopez-Estrada’s illegal reentry so shortly after being deported and
his prior aggravated felony conviction. Although the court did not specifically
No. 05-2953 Page 4
articulate its position on the weight to be accorded the issue of the sentencing
disparity in light of § 3553(a)(6), it was not required to discuss each factor’s effect on
the sentence. See Martinez-Martinez, 442 F.3d at 543. It is sufficient that the court
acknowledged Lopez-Estrada’s arguments and substantiated the sentence on the
basis of other factors. Id.Lopez-Estrada’s final argument is that the Sixth Amendment was violated
because his prior conviction for an aggravated felony was not proven to a jury
beyond a reasonable doubt. Lopez-Estrada did not raise the argument in the
district court and does so in this court only to preserve it for Supreme Court review.
Lopez-Estrada admits that United States v. Almendarez-Torres, 523 U.S. 224(1998), forecloses the argument that his prior conviction ought to have been found
by a jury. He nonetheless argues that Almendarez-Torres is at odds with United
States v. Booker, 543 U.S. 220 (2005), because Almendarez-Torres authorizes a court
to increase a defendant’s sentence based on facts not admitted by the defendant or
proved to a jury beyond a reasonable doubt. 523 U.S. at 226. We have repeatedly
held, however, that Almendarez-Torres remains valid until the Supreme Court
overrules it. See, e.g., United States v. Stevens, 453 F.3d 963, 967 (7th Cir. 2006);
United States v. Browning, 436 F.3d 780, 782 (7th Cir. 2006) (noting that continued
authority of Almendarez-Torres is not for this court to decide).
AFFIRMED.