NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0841n.06
No. 10-5744
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 14, 2011
UNITED STATES OF AMERICA, )
) LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
SANDRO SANCHEZ-DURAN, aka ) WESTERN DISTRICT OF TENNESSEE
SANDRO S. DURAN, SARANO DURZAN )
SANCHEZ and SANDRO DEIAN, )
)
Defendant-Appellant. )
)
BEFORE: GUY, KETHLEDGE, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Defendant Sandro Sanchez-Duran appeals his thirty-
month sentence imposed after he pleaded guilty of illegal re-entry into the United States. 8 U.S.C.
§ 1326(a), (b)(2). Sanchez-Duran contends his sentence was procedurally unreasonable because the
district court did not recognize its authority to vary from the Sentencing Guidelines range based upon
a belief that the fast-track disparity is unwarranted. Sanchez-Duran also contends his sentence was
substantively unreasonable because the district court failed to give proper weight to mitigating
circumstances. Because we conclude that the district court was unaware of its discretion to find
unwarranted the disparity created by the existence of fast-track programs in other jurisdictions and
vary accordingly from the Guidelines, we VACATE the judgment of the district court and
REMAND for resentencing.
No. 10-5744
United States v. Sanchez-Duran
I.
After Sanchez-Duran was taken into custody on a charge of possession of a controlled
substance (cocaine) with intent to manufacture, deliver or sell, police officers contacted Immigration
and Customs Enforcement (“ICE”), and ICE determined Sanchez-Duran was an alien unlawfully
present in the United States. Later, Sanchez-Duran was taken into ICE custody and ICE agents
determined he had been previously removed from the United States on February 10, 2004 via
Brownsville, Texas. Sanchez-Duran provided a sworn statement admitting that he illegally returned
to the United States by walking across the border near Laredo, Texas. A federal grand jury charged
Sanchez-Duran with one count of illegal re-entry into the United States. 8 U.S.C. § 1326(a), (b)(2).
On February 25, 2010, Sanchez-Duran pleaded guilty to the one-count indictment.
The PSR calculated a base offense level of 8, based on U.S.S.G. § 2L1.2 for unlawfully
entering or remaining in the United States. The PSR listed multiple drug-related convictions on
Sanchez-Duran’s criminal history record, including the conviction for which he was deported, a 2003
conviction for possession with intent to sell 3,199 grams of marijuana, for which he was sentenced
to one year of imprisonment.
The PSR added a twelve-level enhancement under U.S.S.G. § 2L1.2(b)(1)(B) for re-entry
after a conviction for a felony drug trafficking offense for which the sentence imposed was thirteen
months or less. After a 3-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1,
Sanchez-Duran’s total offense level was seventeen. The PSR calculated Sanchez-Duran had six
criminal history points for a criminal history category of III. The recommended Guidelines range
was between thirty and thirty-seven months.
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Sanchez-Duran’s sentencing hearing was held on June 8, 2010. Sanchez-Duran submitted
a position paper with respect to the sentencing factors, in which he argued, inter alia, that the
absence of a fast-track program in the Western District of Tennessee created a sentencing disparity
with defendants sentenced in districts that do have such programs. The position paper argued that
after the Supreme Court’s holding in Kimbrough v. United States, 552 U.S. 85 (2007), “the district
court may consider the disparity in sentencing that exists in the fast track districts versus the non-fast
track districts in making a determination whether the disparity in sentencing is an unwarranted
violation of the 3553(a) factors, thereby creating a sentence that is ‘greater than necessary.’”
During the sentencing hearing, Sanchez-Duran’s attorney, Ms. Holt, once again presented
the fast-track disparity argument, but noted that the Sixth Circuit had rejected the argument that the
disparity was unwarranted in United States v. Hernandez-Fierros, 453 F.3d 309, 313 (6th Cir. 2006).
However, she argued that the district court could, notwithstanding that case, still make the
determination whether the four-level decrease is warranted in the case at hand. In response, the
Government argued:
As to the argument about a fast-track disparity, I think of course, as Ms. Holt
recognizes, the Sixth Circuit has rejected that argument. Furthermore, I mean, the
question is whether there is any warranted or unwarranted disparity. The fact is, it’s
permissible for certain districts to have fast-track programs and others not, and so any
disparity is warranted unless Congress does otherwise. And I think this is a policy
argument that goes to congressional discretion, and is not proper for court
consideration given the warranted, unwarranted consideration. The fact is there are
– – the different programs are allowed, so disparities are warranted.
In ruling on the fast-track disparity issue, the district court stated:
[I]t is either four or five states that have the fast-track program. The rest of us, the
remaining 45 or 46 states do not have the fast-track program. But basically in the
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United States v. Sanchez-Duran
states where the fast-track program is in effect or in the districts where the fast-track
program is in effect, there can be and there is a four-level reduction because of a
belief that there is some disparity in the sentencing, and actually a defendant in those
states, if the defendant comes in and doesn’t contest that he or she’s illegally in the
United States and doesn’t contest really the previous information that’s been
provided as far as that individual, then they can plead guilty and get the benefit of
acceptance of responsibility and also a four-level reduction for entering an early plea
in the offense. So unfortunately, that’s the part that the Sixth Circuit has said that
doesn’t necessarily, that there is no reason that the courts in the other 46 states are
required to consider the fast-track program, even though defendants in those states
have an advantage some would argue, and I think that’s what Ms. Holt is arguing,
that they have an advantage that defendants in other states such as Tennessee don’t
have. But I think the Sixth Circuit has already addressed that. So I’m not going to
find it would be applicable to this case.
After considering additional arguments involving the appropriateness of a twelve-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(B), Sanchez-Duran’s cultural assimilation, family
circumstances and a drug addiction, as well as other traditional 18 U.S.C. § 3553(a) (“3553(a)”)
factors, the district court sentenced Sanchez-Duran to thirty months incarceration, which was at the
bottom of the Guidelines range. Sanchez-Duran timely appealed.
II.
We review challenges to the reasonableness of sentences for abuse of discretion. United
States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007). A sentence is procedurally unreasonable if the
district court “fail[s] to calculate (or improperly calculat[es]) the Guidelines range, treat[s] the
Guidelines as mandatory, fail[s] to consider the [18 U.S.C.] § 3553(a) factors, select[s] a sentence
based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence–including an
explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51
(2007). A sentence is substantively unreasonable if a district court “selects a sentence arbitrarily,
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United States v. Sanchez-Duran
bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives
an unreasonable amount of weight to any pertinent factor.” See United States v. Camiscione, 591
F.3d 823, 832 (6th Cir. 2010) (citation omitted). A sentence that falls within the advisory Guidelines
range is given a rebuttable presumption of reasonableness. United States v. Vonner, 516 F.3d 382,
389 (6th Cir. 2008).
In choosing a sentence, a district court must consider the§ 3553(a) factors, including “the
need to avoid unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). At sentencing, Sanchez-Duran
argued for a variance in the calculated Guideline sentence on the basis that defendants charged with
illegal re-entry in fast-track jurisdictions1 are eligible for a four-level reduction in their offense level,
1
We have previously discussed the history of fast-track programs:
Fast-tracking arose initially in border areas with large illegal immigration caseloads.
Prosecutors sought to clear their dockets through either charge-bargaining or
agreements to move for downward departures in return for defendants’ agreements
not to file pretrial motions or contest issues. Congress approved and set standards
for this process in the Prosecutorial Remedies and Tools Against the Exploitation of
Children Today Act of 2008 (“PROTECT Act”), Pub. L. 108–21, 117 Stat. 650,
which required 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.”
PROTECT Act, § 401(m)(2)(b), 117 Stat. 675. The Sentencing Commission
responded by promulgating a new Guideline authorizing a four-level reduction.
U.S.S.G. § 5K3.1.
See United States v.Camacho-Arellano, 614 F.3d 244, 247-48 (6th Cir. 2010) (quoting United States
v. Hernandez-Cervantes, 161 F. App’x 508, 510 (6th Cir. 2005)).
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United States v. Sanchez-Duran
and the disparity in sentencing between such jurisdictions and non-fast-track jurisdictions such as
the Western District of Tennessee is unwarranted and creates a sentence that is greater than necessary
under § 3553.
As we noted in United States v.Camacho-Arellano, 614 F.3d 244, 248 (6th Cir. 2010), prior
to the Supreme Court’s ruling in Kimbrough, the law of this Circuit was that, although district courts
were obligated to consider all the §3553(a) factors and consider the unique circumstances of each
case, a district court lacked the authority to vary from a Guidelines sentence due to the court’s
disagreement with the policy underlying the Guideline. See United States v. Gaines, 122 F.3d 324,
330–31 (6th Cir. 1997); United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006) (quoting a
statement in United States v. Moreland, 437 F.3d 424, 434 (4th Cir. 2006), that “[a] sentence may
be substantively unreasonable if the court . . . rejects policies articulated by Congress or the
Sentencing Commission”).
Kimbrough held that a district court may “conclude when sentencing a particular defendant
that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s
purposes, even in a mine-run case.” 552 U.S. at 110. In Spears v. United States, the Supreme Court
clarified that Kimbrough allowed a district court to “vary from the crack cocaine Guidelines based
on policy disagreement with them, and not simply based on an individualized determination that they
yield an excessive sentence in a particular case.” 555 U.S. 261, 264 (2009) (emphasis in original).
In 2010 we extended Kimbrough to the context of fast-track programs in Camacho-Arellano.
There, the defendant pled guilty to illegal reentry into the United States but the district court rejected
his request for a lower sentence based on the disparity created by the existence of fast-track programs
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United States v. Sanchez-Duran
in other jurisdictions that reduce the offense level of similarly situated defendants in those
jurisdictions by four levels. Camacho-Arellano, 614 F.3d at 245.
After finding that Kimbrough was not limited to the crack/powder cocaine context, this Court
“repudiate[d] any prior hint that district judges could not grant variances based on the fast-track
disparity,” including based on policy disagreements with that disparity. Id. at 250. In remanding for
resentencing, this Court noted,
Because our precedents at the time of sentencing prohibited district court judges from
granting a variance based on a disagreement with a guidelines policy, and because
Kimbrough put that theory to rest, we remand the case to the district court for
resentencing. Camacho–Arellano sufficiently preserved a Kimbrough-like argument
with respect to the fast-track guidelines. . . . But the district court could not have
been aware of its discretion to sentence Camacho–Arellano based on its disagreement
with fast-track policies or the disparities a fast-track sentencing regime creates. The
court sentenced Camacho–Arellano before the Supreme Court decided Kimbrough
and Spears, and in several cases this court had held that district courts lack the power
to vary from guidelines provisions when they disagree with the applicable guidelines.
. . . In light of those precedents, the district court could not have envisioned the
discretion Kimbrough and Spears give it.
Id.
Here, Sanchez-Duran was sentenced after the Supreme Court’s rulings in Kimbrough and
Spears, but prior to this Court’s ruling in Camacho-Arellano. Sanchez-Duran argues for remand on
the basis that the district court did not recognize it had discretion to consider the fast-track argument
because it did not have the benefit of the Camacho-Arellano decision applying Kimbrough to fast-
track programs.
The Government argues there is no support in the record for Sanchez-Duran’s claim that the
district court did not recognize it had discretion to consider the fast-track argument. According to
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No. 10-5744
United States v. Sanchez-Duran
the Government, the district court’s reasoning at sentencing was consistent with Camacho-Arellano
because the district court never indicated that it was not permitted to consider the fast-track
argument, but merely that it believed it was not required to consider the fast-track disparity, which
is consistent with prior Sixth Circuit case law allowing district courts to consider a fast-track
argument as one factor in the § 3553 analysis. See United States v. Hernandez-Fierros, 453 F.3d
309, 313 (6th Cir. 2006) (holding that the need to avoid sentencing disparity due to existence of fast-
track programs is only one of the factors that a district court should consider in determining an
appropriate sentence, and does not by itself require a below-Guidelines sentence). Accordingly, the
district court committed no error, the Government argues.
However, it is not clear that the district court recognized it had discretion to vary
categorically from the Guidelines based on the fast-track disparity. Notwithstanding the word
“required,” the district court’s discussion can be read to suggest it believed it lacked discretion
because the issue had already been settled in the Sixth Circuit. After noting how the fast-track
program works in the states that have it, the district court stated
So unfortunately, that’s the part that the Sixth Circuit has said that doesn’t
necessarily, that there is no reason that the courts in the other 46 states are required
to consider the fast-track program, even though defendants in those states have an
advantage some would argue, and I would think Ms. Holt is arguing, that they have
an advantage that defendants in other states such as Tennessee don’t have. But I
think the Sixth Circuit has already addressed that. So I’m not going to find it would
be applicable to this case.
The district court thus found the fast-track disparity not to be “applicable,” because “unfortunately,”
the “Sixth Circuit has already addressed that,” suggesting the district court believed it lacked
discretion to consider Sanchez-Duran’s argument as to the fast-track disparity. The district court’s
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United States v. Sanchez-Duran
statements here are similar to the district court’s statements in Camacho-Arellano, where the four-
level reduction for the fast-track disparity was initially rejected on the following grounds:
But as [the government] has indicated, the Sixth Circuit has—at least in this Court’s
opinion—has indicated that a trial court’s determination that a Fast Track Program
or Fast Track process is not something that is erroneously—or that if the Court
decides to reject it, that would not be an erroneous determination. The Court believes
that Tennessee obviously not being a border state, it doesn’t have the circumstances
that I believe are present in some of the states like Texas or New Mexico, or things
of that nature, where the problem is a major situation. So, the Court is not going
to—does not believe that is an appropriate manner in which to handle this case.
Camacho-Arellano, 614 F.3d at 246. By stating, “if the Court decides to reject [the fast-track
argument], that would not be an erroneous determination,” the district court in Camacho-Arellano
similarly indicated that the fast-track reduction was not required rather than not permitted. We did
not find this distinction relevant enough to note, and remanded for resentencing on the basis that the
district court could not have been aware of its discretion to vary categorically from the Guidelines
based on its disagreement with fast-track policies after Kimbrough and Spears.
Furthermore, the ambiguity in the district court’s statements should be viewed in the context
in which they were made—that is, in response to the arguments presented to the court by counsel for
Sanchez-Duran and the Government. In arguing for a four-level reduction, Sanchez-Duran’s
attorney cited Hernandez-Fierros as contrary authority, and noted at sentencing that the Sixth Circuit
had previously ruled that “the fact that people in non-fast-track districts didn’t get that four-level
decrease . . . didn’t create an unwarranted disparity in sentencing.” In its response, the Government
stated that with respect to the fast-track argument, “as Ms. Holt recognizes, the Sixth Circuit has
rejected that argument.” Additionally, the Government argued that because the fast-track program
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United States v. Sanchez-Duran
is a creation of Congress, “any disparity is warranted unless Congress does otherwise. And I think
this is a policy argument that goes to congressional discretion, and is not proper for court
consideration given the warranted, unwarranted consideration. The fact is there are – – the different
programs are allowed, so disparities are warranted.”
The Government’s argument at sentencing, and Sanchez-Duran’s acknowledgment of
contrary authority, were consistent with a statement in United States v. Hernandez-Fierros, which,
in addition to holding that the fast-track disparity does not require the granting of a variance, went
on to find that the disparity was warranted because it was implicitly sanctioned by Congressional
policy. 453 F.3d at 314 (“fast-track guidelines reductions were specifically authorized by statute due
to the unique and pressing problems related to immigration in certain districts. As a result, such a
disparity does not run counter to § 3553(a)’s instruction to avoid unnecessary sentencing
disparities.”) However, in Camacho-Arellano this Court decisively rejected the argument that
Congress either explicitly or implicitly believed the disparity is warranted:
We find [attempts to distinguish Kimbrough by reading it as authorizing district
courts to vary based on disagreements with Guidelines policy but not congressional
policy] unpersuasive. First, the idea that Congress believes the disparity is warranted
derives from the PROTECT Act, but the Act “neither forbids nor discourages the use
of a particular sentencing rationale, and it says nothing about a district court's
discretion to deviate from the guidelines based on fast-track disparity.” . . . In effect,
while Congress intended to create room for courts in fast-track jurisdictions to treat
defendants in a certain manner, it did nothing to prohibit judges in non-fast-track
districts from treating defendants the same way. Second, to the extent that Congress
impliedly communicated that the disparity was warranted . . . that fact does not
distinguish this case from Kimbrough. There, the government had argued that by
enshrining the 100–to–1 ratio in the mandatory minimum sentences of the Anti Drug
Abuse Act of 1986, Congress had implicitly endorsed the disparity in the Guidelines.
The Court responded that “[t]he statute says nothing about the appropriate sentence
within [the specified sentencing range], and we decline to read any implicit directive
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United States v. Sanchez-Duran
into that congressional silence.” . . . Third, even if Congress could be said to have
endorsed some disparity between defendants in fast-track and non-fast-track districts,
it has not endorsed the further disparity that is created by charge bargaining. In some
districts, instead of (or in addition to) moving for a downward departure of up to four
offense levels, prosecutors will dismiss certain charges in exchange for a guilty plea.
. . . Surely, judges in districts in which such charge bargaining is not routine for
illegal-reentry defendants would be justified in imposing reduced sentences based on
the disparity created by this prosecutorial practice.
Camacho-Arellano, 614 F.3d at 249–50 (citations and footnote omitted).
The district court did not have the benefit of this reasoning at the time of Sanchez-Duran’s
sentencing. Given that Camacho-Arellano discredited the Government’s argument that the fast-track
disparity should not be disturbed because it reflected congressional policy, we find persuasive our
reasoning in a 2010 unpublished decision in a case with substantially similar facts that “[e]ven if [the
district court’s] statements alone are . . . ambiguous, we cannot turn a blind eye to the context within
which the district court made those statements.” United States v. Balli-Solis, 396 Fed App’x 288,
294 (6th Cir. 2010) (remanding for resentencing where “the Government’s primary assertion against
[defendant’s] fast-track claim was that district courts don’t really have discretion to consider the
disparity because the fast-track program is the product of congressional policy”) (internal quotation
marks omitted). Here, similarly, to the extent the district court holding is ambiguous, it should be
viewed in light of the Government’s urging of the impermissible holding.
Even though Sanchez-Duran was sentenced after the Supreme Court issued its decisions in
Kimbrough and Spears, statements by Sanchez-Duran’s counsel, the Government, and the district
court at sentencing indicate that none held the view, later espoused by this Court in Camacho-
Arellano, that Kimbrough operated to permit categorical variance from the Guidelines on the basis
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United States v. Sanchez-Duran
of policy disagreement with the fast-track disparity. The record strongly suggests the district court
was unaware of its discretion to find the disparity created by the existence of fast-track programs in
other jurisdictions unwarranted and vary from the Guidelines accordingly,2 thus the sentence was
procedurally unreasonable.
Because we find Sanchez-Duran’s sentence is procedurally unreasonable, we need not reach
the issue whether his sentence is substantively unreasonable.
III.
For the abovementioned reasons, we VACATE the judgment of the district court and
REMAND for resentencing.
2
The Government also argues in the alternative that even if the court committed error with
respect to its treatment of the fast-track argument, the error was harmless because the Defendant was
sentenced to the low end of the Guidelines range and because there is no reason to believe the
sentence would change on remand, given the district court’s consideration of traditional § 3553
factors and Sanchez-Duran’s arguments. If the district court had granted a four-level departure,
Sanchez-Duran’s offense level would have fallen four points to 13 to yield an imprisonment range
of 18 to 24 months instead of 30 to 37 months. Accordingly, we find the error was not harmless.
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