F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 18, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4182
JAVIER FLORES-PEREZ, a/k/a Javier (D.C. No. 2:05-CR-00005-TS)
Flores Peres, (D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE and HARTZ, Circuit Judges, and KRIEGER, District Judge.**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,
ordered submitted without oral argument.
This is a direct criminal appeal in an illegal reentry case. The defendant, Javier
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Marcia S. Krieger, United States District Judge for the District of
Colorado, sitting by designation.
Flores-Perez, appeals only his sentence. He argues that the district court failed to
consider the sentencing disparities created by fast-track programs 1 in other jurisdictions.
As a result, he contends that his sentence is unreasonable as a matter of law. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Flores-Perez’s sentence.
I.
On January 5, 2005, a grand jury returned a one-count indictment charging Javier
Flores-Perez with illegal reentry of a previously removed alien in violation of 8 U.S.C. §
1326. That same day, the government filed a notice of sentencing enhancement based, in
1
United States v. Morales-Chaires, 430 F.3d 1124 (10th Cir. 2005), contains the
history and evolution of fast-track sentencing programs:
Fast-track sentencing programs originated with federal prosecutors in states
bordering Mexico, who were faced with increasing numbers of illegal
reentry and other immigration cases. They accordingly designed programs
whereby defendants accused of certain immigration offenses would plead
guilty early in the process and waive their rights to file certain motions and
to appeal, in exchange for a shorter sentence. The shorter sentence was
accomplished either by charge-bargaining or by promising to recommend a
downward departure at sentencing.
Id. at 1127. These programs met with Congressional approval with the passage of the
PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003).
A provision of the PROTECT Act directed the United States Sentencing
Commission to “promulgate . . . a policy statement authorizing a downward
departure of not more than 4 levels if the Government files a motion for
such departure pursuant to an early disposition program authorized by the
Attorney General and the United States Attorney.” Pub. L. No. 108-21, §
401(m), 117 Stat. at 675. The Sentencing Commission accordingly added a
new Guidelines section, effective October 27, 2003, authorizing such four-
level departures. See USSG § 5K3.1, p.s.
Id.
-2-
part, on Flores-Perez’s 1999 felony conviction for attempted possession with intent to
distribute a controlled substance. See id. § 1326(b)(2) (providing for a maximum term of
imprisonment of twenty years for aliens whose prior removal was subsequent to a
conviction for an aggravated felony). On April 25, Flores-Perez entered a plea of guilty
pursuant to a written plea agreement.
The presentence report (PSR) recommended an adjusted offense level of 17 and a
criminal history category score of V, resulting in an advisory guideline range of 46 to 57
months. Specifically, the PSR calculated a base offense level of 8 (U.S.S.G. § 2L1.2(a)),
added 12 levels because Flores-Perez’s prior 1999 conviction was a felony drug
trafficking offense for which the sentence imposed was thirteen months or less (U.S.S.G.
§ 2L1.2(b)(1)(B)), and subtracted 3 levels for Flores-Perez’s acceptance of responsibility
(U.S.S.G. § 3E1.1). Further, Flores-Perez received 8 criminal history points based on his
prior convictions, 2 points for committing the instant offense while on supervised release,
and 1 point for committing the instant offense within two years after being released from
confinement.
Flores-Perez filed a motion for downward departure, asserting four grounds: (1) a
criminal history category V over-represented the seriousness of his criminal history or the
likelihood he will commit future crimes (U.S.S.G. § 4A1.3); (2) a 12-level enhancement
under § 2L1.2(b)(1)(B) for a prior felony drug trafficking offense overstated the
seriousness of that prior offense; (3) his socioeconomic status and lack of formal
education justified a lower sentence (18 U.S.C. § 3553(a)(1) and (2)); and (4) a lower
-3-
sentence was necessary to avoid an unwarranted sentence disparity caused by the
existence of fast-track programs in other jurisdictions (18 U.S.C. § 3553(a)(6)).2
In denying Flores-Perez’s motion for downward departure, the district court
specifically addressed each of his arguments. Vol. II at 14-18. First, the district court
noted that a departure under § 4A1.3 was not warranted, citing to Flores-Perez’s thirteen
prior convictions between 1994 and 2004. Among these convictions were misdemeanor
assault, felony drug distribution, and illegal reentry. Id. at 15. The court also mentioned
the existence of an outstanding warrant for Flores-Perez’s arrest, and that Flores-Perez
had been removed on at least three prior occasions. Id. Second, the court concluded that
Flores-Perez’s 12-level enhancement for his 1999 felony drug conviction accurately and
fairly reflected the seriousness of the crime. Id. at 16. While the district court
acknowledged that the amount of money involved in the drug transaction was not large,
the district court focused on Flores-Perez’s willingness to engage in the particular
conduct. Id. Third, the district court found that Flores-Perez’s socioeconomic status and
educational background did not make his case so unusual as to place it outside the
heartland of cases anticipated by the Guidelines. Id. at 17. The court stated that in light
of Booker and § 3553(a)’s sentencing factors, a departure on those grounds would
provide an unreasonable, unfair, and disparate sentence because Flores-Perez’s
2
As regards the fast-track argument, Flores-Perez’s counsel informed the district
court “that this argument does not necessarily go towards whether a downward departure
is merited so much as the analysis that the court should perform under a reasonableness
standard, . . . as has been articulated by Booker . . . .” Vol. II at 6.
-4-
socioeconomic and educational background was not dissimilar from other defendants who
appeared before the court. Id. Finally, as to Flores-Perez’s contention that the existence
of fast-track programs in other districts resulted in unwarranted sentence disparities
among similarly situated defendants who have been convicted of illegal reentry, the
district court stated:
While the court acknowledges the numerical disparity created
between districts which employ the so-called fast track program for illegal
reentries, this is not a matter appropriately before this court. This court
declines to sua sponte impose a fast track program in this district, believing
that in doing so it would ironically create disparity in and of itself.
Further, the court cannot ignore the fact that the vast majority of
districts in the federal court system do not have such a program. To attempt
to account for the fast track program, which is in place in approximately 15
percent of the districts, would undermine the heart of the federal sentencing
system, uniformity among similarly situated defendants. For these reasons,
the court declines to depart downward on that basis.
Id. at 18.
The district court adopted the PSR and sentenced Flores-Perez to 46 months,
which was at the bottom of the advisory guideline range. Id. at 19. In doing so, the court
commented:
While the sentencing guidelines are no longer mandatory, this
court considers them to be well considered and a reasonable source
to determine the appropriate sentence. The court specifically
believes that the goals that are set forth in 18 U.S. Code 3553(a)
require that the sentence be imposed as just stated, believing that it is
a reasonable sentence under that provision of federal law.
Id. at 20.
III.
Flores-Perez generally argues that the district court’s failure to consider
-5-
unwarranted sentencing disparities arising from fast-track programs in other jurisdictions
“contravene[s] the requirements of 18 U.S.C. § 3553,3 and is unreasonable as a matter of
law.” Aplt. Br. at 20. He suggests that the widespread use of fast-track programs is
3
18 U.S.C. § 3553(a) states, in pertinent part:
(a) Factors to be considered in imposing a sentence. – The court shall
impose a sentence sufficient, but not greater than necessary, to
comply with the purposes set forth in paragraph (2) of this
subsection. The court, in determining the particular sentence to be
imposed, shall consider–
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established . . . by
the Sentencing Commission . . .;
(5) any pertinent policy statement issued by the Sentencing Commission . . .;
(6) the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
-6-
evidence that a sentence for illegal reentry that falls within the guideline range is greater
than necessary to achieve the purposes set forth in 18 U.S.C. § 3553(a)(2), and thus, the
district court should have departed downward from the advisory guideline range.4 In
short, Flores-Perez maintains that “any sentence failing to account for these disparities is
inherently unreasonable.” Id. at 4.
The essence of Flores-Perez’s argument is that a sentence that fails to account for
fast-track disparities is per se unreasonable. This argument was recently rejected in
United States v. Morales-Chaires. The defendant in Morales-Chaires challenged his
sentence under 18 U.S.C. § 3553(a)(6), arguing that “the district court’s failure to
sentence him below the suggested Guideline range amounted to permitting an
‘unwarranted sentence disparity’ between himself and other illegal re-entrants ‘with
similar records who have been found guilty of similar conduct,’ and who are able to take
advantage of a fast-track program.” 430 F.3d at 1128. In Morales-Chaires, we concluded
that it was unnecessary to address “whether sentencing disparities caused by the existence
of fast-track programs in some jurisdictions are or are not, or may be in certain
circumstances, considered unwarranted under § 3553(a)(6).” Id. at 1131. Instead, we
determined that the need “to avoid ‘unwarranted sentencing disparities among
defendant[s] with similar records who have been found guilty of similar conduct’
4
We note that to accept this proposition one must place less significance on §
3553(a)(4), which requires the sentencing court to consider the sentencing range
suggested by the Guidelines.
-7-
[pursuant to § 3553(a)(6)] is but one of several factors for a court to consider in
determining a reasonable sentence.” Id. We then concluded that the defendant’s sentence
at the bottom of the advisory guideline range was reasonable. Id.; accord United States v.
Sebastian, 436 F.3d 913, 915-16 (8th Cir. 2006) (determining that the existence of
sentence disparities arising from fast-track programs did not render the defendant’s
sentence unreasonable).
We reject Flores-Perez’s contention that his sentence is unreasonable. The
sentencing disparity arguments raised here are the same as those we rejected in Morales-
Chaires. Further, “a sentence that is properly calculated under the Guidelines is entitled
to a rebuttable presumption of reasonableness” that “either the defendant or the
government may rebut by demonstrating that the sentence is unreasonable when viewed
against the . . . factors delineated in [18 U.S.C.] § 3553(a).” United States v. Kristl, 437
F.3d 1050, 1054 (10th Cir. 2006). Here, Flores-Perez does not challenge the district
court’s Guideline calculations, and notably, he raises his fast-track argument as the sole
support for his contention that his sentence is unreasonable. The district court carefully
considered the § 3553(a) factors in sentencing Flores-Perez and, after rejecting several
grounds for downward departure, concluded that a sentence at the bottom of the advisory
guideline range was reasonable. As stated in Morales-Chaires, the district court has many
factors to consider when sentencing under § 3553(a), and sentence disparity is only one of
them. 430 F.3d at 1131. The district court’s failure to assign more weight to § 3553(a)(6)
when sentencing Flores-Perez does not overcome the presumption that the sentence it
-8-
imposed was reasonable. We conclude that despite the existence of fast-track programs
in other jurisdictions, which may enable defendants convicted of illegal reentry in those
jurisdictions to obtain lesser sentences, Flores-Perez’s sentence is reasonable.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
-9-