NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 22, 2010
Decided November 22, 2010
Before
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09‐3641 Appeal from the United States District
Court for the Northern District of
UNITED STATES OF AMERICA, Illinois, Eastern Division
Plaintiff‐Appellee,
No. 07 CR 00657
v.
Rebecca R. Pallmeyer, Judge.
RENATO TORRES‐VASQUEZ,
Defendant‐Appellant.
O R D E R
Renato Torres‐Vasquez pleaded guilty to reentering the United States after having
been previously removed, in violation of 8 U.S.C. § 1326(a). The district court sentenced
him within the guidelines to 76 months’ imprisonment. Torres‐Vasquez appeals, arguing
that the district court’s sentence was in error because the court did not consider the sentence
disparity created by the absence of what is known as a fast‐track program. We affirm.
No. 09‐3641 Page 2
I.
Torres‐Vasquez is a Mexican citizen who has been removed from the United States
three times already. He was first removed to Mexico in February 1999, after he served a 73‐
month federal sentence for a cocaine‐related offense. Six months later, he illegally reentered
the United States and was detained and removed a second time in September 1999.
Undeterred, he reentered the country soon again and, in August 2000, was arrested on an
Illinois drug charge. He pleaded guilty to the charge and was sentenced to a term of
imprisonment. Following the completion of his sentence, he was removed to Mexico for the
third time in June 2006. Within a month, he was back in the country illegally. In October
2006, Immigration and Customs Enforcement (ICE) agents discovered that he was using an
alias and working at a warehouse in Aurora, Illinois. After learning that ICE agents were
looking for him, Torres‐Vasquez moved to California. He successfully evaded capture for
almost two years but was finally arrested in San Luis Obispo, California, on September 10,
2008.
On September 23, 2008, Torres‐Vasquez was charged in an indictment in the
Northern District of Illinois with illegally reentering the United States after having been
deported, a violation 8 U.S.C. § 1326(a). He requested to plead guilty in the Central District
of California under Federal Rule of Criminal Procedure 20, which permits the transfer of
defendants from one district to another. The request was denied and Torres‐Vasquez was
removed to the Northern District of Illinois, where his case was initiated. He then pleaded
guilty to one count of illegal reentry.
Before sentencing, Torres‐Vasquez argued that he should receive a below guidelines
sentence because he was arrested in the Central District of California, a district where there
is a fast‐track program for illegal reentry defendants. So far, at least sixteen federal districts
have adopted fast‐track programs to address the high volume of illegal‐reentry cases. See
United States v. Reyes‐Hernandez, No. 09‐1249, slip op. at 7‐13, 2010 WL 3911336, at *3‐*5 (7th
Cir. Oct. 7, 2010) (giving a history of fast‐track programs). Through these programs, illegal
reentry defendants are given reduced sentences in exchange for the waiver of certain rights.
Id. The Northern District of Illinois, the district in which Torres‐Vasquez was indicted and
pleaded guilty, does not have a fast‐track program. Id. at 13. Torres‐Vasquez’s guidelines
range, as calculated in the Central District of California with the benefit of a fast‐track
program, would have been 46 to 57 months, while his guidelines range in the Northern
District of Illinois was calculated to be 70 to 87 months. The district court rejected Torres‐
Vasquez’s argument for a sentence below the 70‐to‐87‐month range, and sentenced him to
76 months’ imprisonment. Torres‐Vasquez appeals.
No. 09‐3641 Page 3
II.
On appeal, Torres‐Vasquez argues that the district court erred when it failed to
consider the sentencing disparity created between fast‐track and non‐fast‐track districts. At
the time of Torres‐Vasquez’s sentencing, we did not allow district courts to depart below
the guidelines range solely because the district did not have a fast‐track program. See
United States v. Galicia‐Cardenas, 443 F.3d 553, 555 (7th Cir. 2006). But recently, we
reconsidered our approach and now hold that district courts have “the ability to consider
the absence of a fast‐track program in crafting an individual sentence.” Reyes‐Hernandez,
No. 09‐1249, slip op. at 35, 2010 WL 3911336, at *16.
Regardless of this change of approach, Torres‐Vasquez’s argument on appeal has no
merit because, contrary to Torres‐Vasquez’s contention, the district court did consider the
disparity created by the absence of a fast‐track program during sentencing. At the
sentencing hearing, the district court recognized that Torres‐Vasquez would have benefitted
from a fast‐track program had he remained in California, but then stated, “My inclination
would be that Mr. Torres wouldn’t be a good risk for a fast track treatment in any event.”
The district court went on to describe some of the circumstances in Torres‐Vasquez’s
background which militated against a lenient sentence, including Torres‐Vasquez’s
significant criminal history and involvement with controlled substances, his high likelihood
of recidivism, and the fact that he had moved to California in order to evade immigration
authorities and not to avail himself of fast‐track treatment. Moreover, the district court
repeated this consideration in the judgment’s Statement of Reasons:
Defendant has a very significant criminal history, including convictions for two
controlled‐substances offenses, and a crime of violence. Two previous deportations
have not deterred Defendant from returning to the United States, most recently just
one month after an order of deportation. Defendant’s family ties in this [country],
his limited Spanish skills, and his history of re‐entry and of use of an alias, all render
recidivism a likelihood. These factors also militate against leniency based upon the
unavailability here of fast track disposition that might have been available to
Defendant had he been permitted to [plead] guilty in California.
Thus, the district court acted in this case as we have suggested in United States v.
Reyes‐Hernandez: it noted the disparity created by the absence of a fast‐track program but
found that Torres‐Vasquez’s particular circumstances weighed against any leniency based
on fast‐track considerations.
No. 09‐3641 Page 4
Torres‐Vasquez also argues that the district court erred when it failed to consider the
disparity created by the court’s denial of his Rule 20 request to be transferred to the Central
District of California. But any such disparity stems solely from the presence of a fast‐track
program, and as discussed above, the district court considered this disparity and concluded
that Torres‐Vasquez’s circumstances weighed against leniency. We also do not think the
defendant’s flight from Illinois to evade arrest gave him any right to be sentenced on the
basis of practices in the district to which he fled. A defendant should not be able to improve
his legal position by fleeing arrest. Accordingly, the district court committed no error in
sentencing.
For these reasons, we AFFIRM the judgment of the district court.