United States v. Martinez-Trujillo

                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                      PUBLISH
                                                                   November 20, 2006
                   UNITED STATES CO URT O F APPEALS                Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

              Plaintiff - Appellee,
       v.                                               No. 05-4122
 JO SA FAT M A RTIN EZ-TR UJILLO,

              Defendant - Appellant.



         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                      FOR T HE DISTRICT OF UTAH
                        (D.C. NO . 2:04-CR-800-TS)


Stephen R. M cCaughey, Salt Lake City, Utah, for D efendant - Appellant.

Karin M . Fojtik, Assistant United States Attorney (Paul M . W arner, United States
Attorney, and W ayne T. Dance, Assistant United States A ttorney, on the brief),
Salt Lake City, Utah, for Plaintiff - Appellee.


Before HA RTZ, EBEL, and M cCO NNELL, Circuit Judges.


HA RTZ, Circuit Judge.


      To expedite the handling of large volumes of cases involving persons

accused of immigration offenses, certain judicial districts employ fast-track

programs. These programs allow defendants to obtain a downward departure in
their offense level under the United States Sentencing Guidelines (U SSG) in

exchange for pleading guilty and waiving their rights to file certain motions and

to appeal. See United States v. M orales-Chaires, 430 F.3d 1124, 1127 (10th Cir.

2005); USSG § 5K3.1. Congress authorized these programs in a provision of the

Prosecutorial Remedies and Other Tools to End the Exploitation of Children

Today Act of 2003 (the PROTECT Act). See Pub. L. No. 108-21, 117 Stat. 650

(codified in scattered sections of 18, 28, and 42 U.S.C.). The decision to adopt

the program in a district is made by the United States Attorney General and the

United States Attorney for the district. See id. § 401(m)(2)(B), 117 Stat. at 675;

M orales-Chaires, 430 F.3d at 1127.

      A number of defendants prosecuted in non-fast-track districts have

complained that the advantages of fast-track sentences are not available to them.

They argue that judges in non-fast-track districts should avoid disparities in

sentencing within the federal system as a whole by taking into account sentences

under fast-track systems and reducing their sentences accordingly. They rely on

18 U.S.C. § 3553(a)(6), which requires the sentencing court to consider “the need

to avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct.”

      Josafat M artinez-Trujillo is such a defendant. He pleaded guilty in the

United States District Court for the District of Utah to illegal reentry of a

previously deported alien. See 8 U.S.C. § 1326. He filed a memorandum arguing

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that under § 3553(a)(6) the sentencing court must avoid unwarranted sentence

disparities between similarly situated defendants by adjusting his sentence to

correspond with sentences imposed in districts with fast-track programs. The

district court rejected the argument, declaring that the sentence it pronounced was

consistent with “the goals of providing just punishment for the offense, affording

adequate deterrence to the criminal conduct, and protecting the public from

further crimes of the defendant.” R. Doc. 42 at 6. Refusing to consider fast-track

programs as a sentencing factor, the court stated that it would not “attempt to

account for the fast-track program, which is in place in only approximately 15

percent of districts,” and said that doing so “would undermine the heart of the

federal sentencing system, uniformity among similarly situated defendants.” Id.

at 7.

        M r. M artinez-Trujillo appeals, contending that the district court’s ruling

violated the sentencing standards set forth in 18 U.S.C. § 3553(a), thereby

rendering his sentence unreasonable. See United States v. Booker, 543 U.S. 220,

261 (2005) (establishing unreasonableness as standard of appellate review for

sentences). W e have jurisdiction under 28 U.S.C. § 1291 and affirm.

        W e considered a similar contention in M orales-Chaires. In that case w e

held that a district court could impose sentences on persons convicted of unlawful

reentry without adjusting for disparities caused by fast-track sentencing. See

M orales-Chaires, 430 F.3d at 1131. W e reserved for the future, however,

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“w hether sentencing disparities caused by the existence of fast-track programs are

or are not, or may be in certain circumstances, considered unwarranted under

§ 3553(a)(6).” Id. This case presents the question, and we answer it “No.” W e

cannot say that a disparity is “unwarranted” within the meaning of § 3553(a)(6)

when the disparity was specifically authorized by Congress in the PROTECT Act.

See U nited States v. Castro, 455 F.3d 1249, 1252 (11th Cir. 2006) (“Any disparity

created by section 5K3.1 does not fall w ithin the scope of section 3553(a)(6).

W hen Congress directed the Sentencing Commission to allow the departure for

only participating districts, Congress implicitly determined that the disparity was

warranted.” (internal citation omitted)); United States v. M ejia, 461 F.3d 158, 163

(2d Cir. 2006) (“Congress expressly approved of fast-track programs without

mandating them; Congress thus necessarily decided that they do not create the

unwarranted sentencing disparities that it prohibited in Section 3553(a)(6).”);

United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (“The refusal to

factor in . . . the sentencing disparity caused by early disposition programs does

not render a sentence unreasonable. . . . Congress must have thought the disparity

warranted when it authorized early disposition programs without altering §

3553(a)(6).”); United States v. Perez-Pena, 453 F.3d 236, 244 (4th Cir. 2006)

(“[T]here is no reason to believe that Congress intended that sentencing

disparities between defendants who benefitted from prosecutorial discretion and

those who did not could be ‘unwarranted’ w ithin the meaning of § 3553(a)(6).

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W e therefore conclude that the need to avoid such disparities did not justify the

imposition of a below-guidelines variance sentence.”); United States v.

M arcial-Santiago, 447 F.3d 715, 718 (9th Cir. 2006) (“[W]e cannot say that the

disparity between Appellants’ sentences and the sentences imposed on

similarly-situated defendants in fast-track districts is ‘unwarranted’ within the

meaning of § 3553(a)(6). W hen Congress passed the PROTECT Act, it did so

with knowledge that 18 U.S.C. § 3553(a)(6) was directing sentencing courts to

consider the need to avoid unwarranted sentencing disparities. By authorizing

fast-track programs without revising the terms of § 3553(a)(6), Congress was

necessarily providing that the sentencing disparities that result from these

programs are warranted and, as such, do not violate § 3553(a)(6).”).

       At oral argument before this court, M r. M artinez-Trujillo contended that he

is entitled to special consideration because the fast-track program is now in effect

in the District of Utah. He argued that the program should be available to anyone

whose sentence has not become final before the program’s effective date. But

this argument is unavailing. M r. M artinez-Trujillo has already exercised one of

the rights that defendants waive when they go through the fast-track process— the

right to appeal. See Morales-Chaires, 430 F.3d at 1127 (“In jurisdictions where

fast-track programs have been authorized by the Attorney General, defendants

must agree to the factual basis of the criminal charge and waive the rights to file

pretrial motions, to appeal, and to seek collateral relief (except for ineffective

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assistance of counsel).” (internal quotation marks and brackets omitted)).

M oreover, the decision that a defendant be “fast-tracked” is not made by the

defendant but by the United States Attorney. See USSG § 5K3.1 (“Upon motion

of the Government, the court may depart downward not more than 4 levels

pursuant to an early disposition program . . . .”). M r. M artinez-Trujillo does not

contend that the United States Attorney in this case would now offer him the

opportunity to go through fast-track procedures if this case were remanded to the

district court. Indeed, the opposite representation was made by the United States

Attorney during oral argument.

      M r. M artinez-Trujillo makes no further argument regarding the

unreasonableness of his sentence. His sentence was within the range set by the

Guidelines. Such a sentence is presumed reasonable. See United States v. Kristl,

437 F.3d 1050, 1055 (10th Cir. 2006) (“If . . . the district court properly considers

the relevant Guidelines range and sentences the defendant within that range, the

sentence is presumptively reasonable.”). W e therefore reject M r. M artinez-

Trujillo’s claim that his sentence was unreasonable.

      W e A FFIR M the judgment below.




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