UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5185
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
CARLOS ROMERO-CANDELARIA, a/k/a Carlos Romero,
a/k/a Carlos Candelaria,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CR-05-63)
Submitted: April 27, 2006 Decided: July 12, 2006
Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Eric D. Goulian, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellant. Thomas P. McNamara, Federal Public
Defender, G. Alan DuBois, Assistant Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
The United States appeals Carlos Romero-Candelaria’s sentence
for illegally reentering the United States after being deported,
see 8 U.S.C.A. § 1326(a), (b)(2) (West 2005). The district court
imposed a below-guidelines variance sentence to avoid an
“unwarranted sentence disparit[y],” 18 U.S.C.A. § 3553(a)(6) (West
2000), between Romero-Candelaria and defendants that had
participated in a “fast-track” program.* Finding the sentence
unreasonable, we vacate and remand for resentencing.
I.
Romero-Candelaria, a citizen of Mexico, illegally entered the
United States in November 1995. In August 1998, he was convicted
in North Carolina of attempted second-degree kidnapping and was
sentenced to ten to twelve months imprisonment. After serving his
sentence, he was deported on March 1, 1999.
Romero-Candelaria reentered the United States without
permission in approximately April 2003. Almost two years later, he
was charged in North Carolina with driving while his license was
revoked. After it was determined that Romero-Candelaria had
reentered the country illegally, he was indicted on a single count
of reentering the United States after having been deported, see
*
The nature of such programs is discussed in our recent
opinion in United States v. Perez-Pena, No. 05-5054, 2006 WL
1791697, at *1-2 (4th Cir. June 30, 2006).
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8 U.S.C.A. § 1326(a), (b)(2). He pleaded guilty to the indictment
without a plea agreement.
At sentencing, the district court began by calculating Romero-
Candelaria’s sentencing guideline range. Because Romero-Candelaria
had been convicted of a felony crime of violence--the attempted
kidnapping--prior to his deportation, the district court applied a
16-level increase to his base offense level of 8. See United
States Sentencing Guidelines Manual § 2L1.2(a), (b)(1)(A)(ii)
(2004). Application of a 3-level adjustment for acceptance of
responsibility, see U.S.S.G. § 3E1.1, reduced the total offense
level to 21. With a Criminal History Category of IV, Romero-
Candelaria’s guideline range was 57 to 71 months. The district
court then heard argument on a request by Romero-Candelaria for a
below-guidelines sentence. He contended that such a sentence was
necessary to avoid an unwarranted sentence disparity with
defendants who had received “fast-track” sentences. He further
argued that the nature and circumstances of the attempted
kidnapping of which he was convicted, his relatively modest other
criminal history, his acceptance of responsibility, and his
agreement to return to Mexico, when considered together, also
warranted a below-guidelines sentence.
In contrast, the Government requested imposition of a sentence
within the guideline range. The Government denied that any
disparity produced by such a sentence would be “unwarranted” since
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Romero-Candelaria did not participate in any fast-track program and
was therefore not similarly situated to those who did. At the
close of arguments, the court imposed a 24-month sentence--33
months less than the low end of the guideline range--in order to
avoid an unwarranted sentence disparity with defendants who
participated in fast-track programs.
II.
The Government argues that the district court erred in
imposing a below-guidelines sentence to account for sentences
received by defendants participating in fast-track programs. We
agree.
Our recent decision in United States v. Perez-Pena, No. 05-
5054, 2006 WL 1791697, at *7 (4th Cir. June 30, 2006), establishes
that the sentence disparity between a non-fast-track defendant and
one who received a fast-track sentence is not “unwarranted” within
the meaning of 18 U.S.C.A. § 3553(a)(6). We therefore vacate
Romero-Candelaria’s sentence as unreasonable and remand for
resentencing. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
us and argument would not aid the decisional process.
VACATED AND REMANDED
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