United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3059
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Jose Angel Vasquez-Cardona, *
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: March 14, 2006
Filed: March 17, 2006
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Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Jose Angel Vasquez-Cardona pled guilty to unlawful reentry after deportation,
in violation of 8 U.S.C. § 1326. The district court1 sentenced him to 57 months
imprisonment. Vasquez-Cardona appeals, asserting that the court erred by failing to
recognize its authority to vary or depart from the advisory guidelines and imposed an
unreasonable sentence. We affirm.
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
Vasquez-Cardona, a citizen of Mexico, was deported in 2004 based on his
conviction for third degree criminal sexual conduct. After illegally reentering the
United States and being arrested for driving under the influence, Vasquez-Cardona
pled guilty to unlawful reentry after deportation. The presentence report calculated
a guideline range of 57 to 71 months. Prior to sentencing, Vasquez-Cardona requested
a downward departure from the guidelines based on his cultural assimilation, his
familial motivation to return to this country, and disparities in sentences between
districts with fast track programs and those without them such as the District of
Minnesota. Vasquez-Cardona argued that something around 30 months would be a
reasonable sentence. The government opposed a departure on any theory and
recommended a sentence within the guideline range.
At sentencing the district court chose not to depart on the basis of sentencing
disparity among districts "because it would amount to a judicial creation of a Fast
Track program in violation of both the PROTECT Act and the purposes of the
sentencing guidelines." The court also was not persuaded by appellant's other
arguments for a departure, noting that he had not had "a long period of law-abiding
behavior in this country" but rather had been "racking up eight criminal history
points". The court found "no reason in this case not to impose a guideline sentence"
and sentenced Vasquez-Cardona to a term of 57 months, the low point of the guideline
range. Vasquez-Cardona asserts that the case should be remanded for resentencing
because the district court erroneously believed that it lacked authority to vary or
depart from the guideline sentence based on the sentencing disparity resulting from
the fast track program.
Review of the sentencing transcript shows that the court understood its power
to depart but decided not to because it was Congress which had instituted fast track
programs after concluding that "the advantages stemming from fast-track programs
outweigh their disadvantages, and that any disparity that results from fast-track
programs is not 'unwarranted'", United States v. Sebastian, 436 F.3d 913, 916 (8th Cir.
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2006) (quoting United States v. Perez-Chavez, No. 2:05-CR-00003PGC, 2005 U.S.
Dist. LEXIS 9252, at *23 (D. Utah May 16, 2005)). Where a district court recognizes
its authority to depart downward, its discretionary decision not to do so is
unreviewable. See United States v. Frokjer, 415 F.3d 865, 875 (8th Cir. 2005).
Vasquez-Cardona also argues that his sentence is unreasonable because the
court disregarded the mitigating factor of an unwarranted sentencing disparity and
imposed a sentence that does not promote respect for the law. See § 18 U.S.C. §
3553(a)(2)(A). Not only is Vasquez-Cardona's sentence presumptively reasonable
because it was within the 57 - 71 month guideline range, see United States v. Lincoln,
413 F.3d 716, 717 (8th Cir. 2005), but it was at the low point of that range. The
district court discussed its reasons for not departing and concluded that a guideline
sentence was appropriate in this case. We conclude that the sentence is not
unreasonable.
We therefore affirm the judgment.
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