[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 14, 2007
No. 05-17200 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00189-CR-T-17-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICENTE ZARABIA,
a.k.a. Vicente Zarabia-MiDueno,
a.k.a. Manuel Acosta DeJesus,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 14, 2007)
Before ANDERSON, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Vicente Zarabia appeals his 77-month sentence imposed on resentencing
after his conviction for illegal re-entry into the United States, in violation of 8
U.S.C. § 1326(a), (b)(2). On appeal, Zarabia argues that the district court erred by
(1) improperly calculating his criminal history score; (2) imposing sentence
without giving him an opportunity for allocution; and (3) imposing an
unreasonable sentence. After review, we affirm.
I. BACKGROUND
On December 10, 1997, Zarabia, who is a citizen of Mexico, was convicted
in the United States District Court for the Southern District of Texas of
transporting a certain alien within the United States in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) (Zarabia’s “alien smuggling offense”). Zarabia was sentenced
to 200 days’ imprisonment and 3 years’ supervised release. On March 16, 1998,
Zarabia was released from imprisonment. As a result of this alien smuggling
conviction, Zarabia was deported to Mexico in May 1998.
Thereafter, Zarabia returned to the United States without permission, and on
July 10, 1999, was arrested in Georgia for driving without a license, driving under
the influence of alcohol, and endangering a child while driving under the influence
of alcohol. Thus, Zarabia was illegally back in the United States at least by the
time of his Georgia arrest on July 10, 1999, which was within two years of his
2
March 16, 1998 release from imprisonment in Texas.
On April 14, 2004, a special agent of the Bureau of Immigration and
Customs Enforcement located Zarabia in a Florida jail, where he was being held on
unrelated state charges. As a result, Zarabia was indicted for being found in the
United States without permission after previously having been convicted of a
felony offense and deported to Mexico, in violation of 8 U.S.C. § 1326(a), (b)(2).
Zarabia pled guilty to the indictment without a plea agreement.
The presentence investigation report (“PSI”) recommended a total offense
level of 21, calculated as follows: (1) a base offense level of 8, pursuant to
U.S.S.G. § 2L1.2(a); (2) a 16-level enhancement, pursuant to
§ 2L1.2(b)(1)(A)(vii), because Zarabia was deported after a conviction for an alien
smuggling offense; and (3) a 3-level reduction, pursuant to § 3E1.1, for acceptance
of responsibility. The PSI calculated 13 criminal history points for a criminal
history category of VI, as follows: (1) 10 points for Zarabia’s previous convictions;
(2) 2 points, pursuant to § 4A1.1(d), because Zarabia committed the instant offense
while on supervised release for his alien smuggling offense; and (3) 1 point,
pursuant to § 4A1.1(e), because Zarabia “committed the instant offense, which
began on July 10, 1999, less than two years following his release from custody on
March 16, 1998,” for his alien smuggling offense. Zarabia’s total offense level of
3
21 and criminal history category of VI resulted in a guidelines range of 77 to 96
months.
A. First Sentencing Hearing and Appeal
At the first sentencing hearing, held on January 7, 2005, Zarabia objected to
the 16-level enhancement to his offense level based on Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2531 (2004). The district court overruled the objection based
on then-current Eleventh Circuit precedent. Zarabia did not object to the additional
two criminal history points for committing the instant illegal re-entry offense while
on supervised release, or to the one criminal history point for committing the
instant offense less than two years after his release from imprisonment.1 After
adopting the undisputed factual statements and guidelines calculations, the district
court sentenced Zarabia to 77 months’ imprisonment.
In his first appeal, Zarabia argued, in light of Blakely and United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), that the district court violated his
Sixth Amendment rights by sentencing him based upon a prior conviction for alien
smuggling that he did not admit, and by sentencing him under a mandatory
guidelines scheme. This Court concluded that the district court did not violate
1
Zarabia did raise an unrelated objection to his criminal history calculation. The district
court sustained the objection, which did not alter Zarabia’s criminal history score and has no
bearing on this second appeal.
4
Zarabia’s Sixth Amendment rights by enhancing his sentence based upon a prior
conviction, but that the district court did commit a statutory Booker error by
sentencing Zarabia under a mandatory guidelines scheme. United States v.
Zarabia, 149 Fed. Appx. 903, 905-06 (11th Cir. 2005). Because the government
could not show that this error was harmless, this Court vacated Zarabia’s sentence
and remanded for resentencing. Id. at 906. In doing so, this Court rejected
Zarabia’s challenge to the application of the 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(vii), and stated that, “on remand, the district court is required to
sentence Zarabia under an advisory Guidelines regime, and shall consider the
Guidelines range of 77-96 months’ imprisonment” and the other 18 U.S.C.
§ 3553(a) factors. Id. at 907.
B. Resentencing Hearing
At the resentencing hearing, the district court again adopted the undisputed
factual statements and guidelines calculations contained in the PSI and determined
that Zarabia’s total offense level was 21, his criminal history category was VI, and
his advisory guidelines range was 77 to 96 months.
The district court then asked: “Do you wish to make a statement or present
any information in mitigation of sentence?” In response, Zarabia’s counsel moved
for a downward departure based on over-representation of criminal history.
5
Specifically, counsel noted that (1) Zarabia only had 13 criminal history points and
was “right on the cusp of the highest criminal history category,” (2) three of those
points were because Zarabia committed the instant illegal re-entry offense within
two years following his release from custody,2 and (3) although Zarabia had
numerous convictions, most of them were “fairly minor” and he did not have any
“three point offenses.” Accordingly, Zarabia’s counsel moved for a one-level
downward departure to a criminal history category of V, with a corresponding
guidelines range of 70 to 87 months.
After hearing from the probation officer and the government, the district
court denied the motion, stating:
Well, I’ve looked at the records and I see what it is that he had before.
I think that now that the guidelines are, indeed, advisory and they are
not mandatory, the Court in considering . . . the arguments that are
made in front of me today, I don’t think your request for over
representation is well taken, it is denied and the Court is imposing a
sentence of 77 months based upon the advisory of the guidelines and
also based upon the requirements of [18 U.S.C. §3553(a)(1)-(7)]. I
think the sentence is reasonable.
The district court then asked whether there was “[a]nything further that your client
wants to say?” Zarabia then addressed the court, stating that he had been taking
2
As noted earlier, only one criminal history point was attributed to Zarabia for
committing the instant illegal re-entry offense within two years of his release from
imprisonment. The two other criminal history points were attributed to him for committing the
instant offense while on supervised release.
6
GED classes and English classes, and that he was on the waiting list for an auto
mechanics class. The district court told Zarabia that the best way he can help his
family is to improve himself and “get all of the training that you can get right now”
so that he could earn a living once he is released from prison. The district court
then asked whether there was “[a]nything else,” and Zarabia’s counsel responded,
“No, Your Honor.”
The district court sentenced Zarabia to 77 months’ imprisonment and 3
years’ supervised release, noting that “[a]fter considering the advisory sentencing
guidelines and all of the factors identified in Title 18, United States Code, Section
3553(a), one through seven, the Court finds that the sentence imposed is sufficient
but not greater than necessary to comply with the statutory purposes of
sentencing.”
The district court next asked whether counsel had any other objections to the
sentence or the manner in which the Court pronounced sentence. At that point,
Zarabia’s counsel referred to “the three [criminal history] points that Mr. Zarabia
received for coming back into the country within two years after his deportation,”
and noted an alleged inconsistency between (a) the PSI, which suggested that
Zarabia’s illegal re-entry offense began in 1999, and (b) the indictment, which
charged Zarabia with being found in the United States in 2004. After the probation
7
officer and the government stated that the illegal re-entry offense actually started
on July 10, 1999, (which was when Zarabia was arrested in Georgia), Zarabia’s
counsel stated that she had no argument in rebuttal and “would just like to preserve
that objection.” The district court stated, “Well, it’s preserved and overruled.”
The district court again asked whether counsel had any other objections, and this
time, no additional objections were raised. This second appeal followed.
II. DISCUSSION
A. Criminal History Calculation
On appeal, Zarabia argues that the district court erred by assessing one
criminal history point, pursuant to U.S.S.G. § 4A1.1(e), for committing the instant
illegal re-entry offense less than two years after he was released from
imprisonment on March 16, 1998. Relying primarily on United States v. Scott,
447 F.3d 1365 (11th Cir. 2006), Zarabia argues that the instant illegal re-entry
offense did not begin until he was discovered in jail by federal immigration
officials in 2004. Without this additional criminal history point, Zarabia contends
that he should have had a criminal history category of V and an advisory
guidelines range of 70 to 87 months. We need not address this argument for
several reasons.
First, this Court’s decision in Zarabia’s first appeal contained a limited
8
remand that directed the district court “to sentence Zarabia under an advisory
Guidelines regime, and . . . consider the Guidelines range of 77-96 months’
imprisonment” and the other 18 U.S.C. § 3553(a) factors. Zarabia, 149 Fed.
Appx. at 907. Zarabia’s sentence was vacated solely on the ground that the district
court sentenced Zarabia under a mandatory, as opposed to an advisory, guidelines
regime. See id. at 905-07. Thus, on remand, the district court was limited in what
issues it could consider. See United States v. Davis, 329 F.3d 1250, 1252 (11th
Cir. 2003) (noting that, when an appellate court issues a limited remand, “the trial
court is restricted in the range of issues it may consider on remand”); see also
United States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996). Accordingly,
Zarabia’s objection to the additional one criminal history point under § 4A1.1(e)
was outside the scope of this Court’s limited remand, and the district court did not
err by overruling the objection.
Second, even if we treat the decision in Zarabia’s first appeal as a general
remand, this particular challenge to Zarabia’s criminal history calculation is
foreclosed by the law-of-the-case doctrine. In his first appeal, Zarabia challenged
his guideline calculation (such as the 16-level enhancement), but Zarabia did not
challenge the district court’s overall criminal history calculation or, more
importantly, the one criminal history point attributed to him, pursuant to
9
§ 4A1.1(e), for committing the instant illegal re-entry offense less than two years
after his release from imprisonment on his alien smuggling offense. See Zarabia,
149 Fed. Appx. at 907. Under the law-of-the-case doctrine, lower court rulings
that have not been challenged on a first appeal will not be disturbed in a
subsequent appeal. See, e.g., United States v. Escobar-Urrego, 110 F.3d 1556,
1560 (11th Cir. 1997); United States v. Fiallo-Jacome, 874 F.2d 1479, 1481-83
(11th Cir. 1989).
There are three exceptions to the law-of-the-case doctrine, and a court is not
bound by a prior ruling if (1) new evidence is presented; (2) there is a change in the
controlling law; or (3) the prior decision was clearly erroneous and will cause
manifest injustice. Escobar-Urrego, 110 F.3d at 1561. None of the exceptions to
the law-of-the-case doctrine apply in this case. First, Zarabia did not present any
new evidence. Second, there has not been a change in the law. And third, the
district court’s decision to assess one criminal history point under § 4A1.1(e) was
not clearly erroneous.
Under § 4A1.1(e), one or two additional criminal history points are added to
a defendant’s criminal history score “if the defendant committed the instant offense
less than two years after release from imprisonment on a sentence” exceeding 60
10
days.3 U.S.S.G. § 4A1.1(e). According to the commentary to § 4A1.1(e), the
additional criminal history points are added “if the defendant committed any part
of the instant offense (i.e., any relevant conduct) less than two years following
release from confinement . . . .” U.S.S.G. § 4A1.1 cmt. n.5. Thus, the question is
whether Zarabia committed any part of his instant illegal re-entry offense within
two years of his release from confinement.
Here, the district court’s imposition of one additional criminal history point
under § 4A1.1(e) was proper. Zarabia was released from confinement on his alien
smuggling offense, for which he was sentenced to 200 days’ imprisonment, on
March 16, 1998. Zarabia’s offense conduct for the instant offense, illegally re-
entering the United States, began at least by July 10, 1999, the date that he was
arrested in Georgia. Thus, Zarabia committed part of his illegal re-entry offense,
namely returning to the United States without permission, less than two years after
his release from imprisonment.
Zarabia’s cites Scott, but Scott addresses when an illegal re-entry offense is
complete or ends, not when that offense begins. Because Zarabia relies so heavily
on Scott, we discuss Scott in detail and explain why, if anything, Scott shows that
3
Here, Zarabia’s criminal history score only was increased by one point under § 4A1.1(e)
because Zarabia also received an additional two criminal history points under § 4A1.1(d) for
committing the instant offense while on supervised release. See U.S.S.G. § 4A1.1(e).
11
part of Zarabia’s offense was committed within two years of his release from
custody.
In Scott, the alien was deported from the United States in 1991; illegally
re-entered the United States in 1994; and was convicted in a Florida state court for
possession of cocaine in 1999, for which he received a probationary sentence.
Scott, 447 F.3d at 1366. Thereafter, Scott violated the terms of his probation, and
on August 25, 2004, was arrested in Florida. Id. On that same day, Scott was
interviewed by an immigration official and provided details about his previous
deportation and illegal re-entry, but he was not arrested on immigration violations
at that time. Id. at 1366-67.
On September 15, 2004, Scott’s probation was revoked and he was
sentenced to 180 days’ imprisonment. Id. at 1367. On January 5, 2005, while
Scott still was serving this sentence, Scott again was interviewed by immigration
officials, and his identity was confirmed. Id. Scott subsequently was arrested and
charged with being “found in” the United States after having previously been
deported, in violation of 8 U.S.C. § 1326. Id. at 1367-68. After Scott pled guilty
to illegal re-entry, the federal sentencing court found that Scott had committed the
charged illegal re-entry offense while serving a 180-day sentence for a probation
violation and added one criminal history point to Scott’s criminal history score,
12
pursuant to § 4A1.1(e).4 Id. at 1367. On appeal, Scott argued that his illegal re-
entry violation was completed when the federal immigration officials first located
him on August 25, 2004, that he did not receive and start serving his 180-day
sentence until September 15, 2004, and that, therefore, he had not committed his
illegal re-entry offense while serving his 180-day sentence. Id. at 1368.
Because of this sequence of events, the Scott Court had to determine “when
Scott’s crime of illegal reentry was completed – meaning when was he ‘found in’
the United States,” in order to determine whether the district court properly
calculated Scott’s criminal history score. Scott, 447 F.3d at 1368. The issue in
Scott required this Court to “focus[] squarely upon the meaning of the phrase
‘found in’” in § 1326. Id. The Scott Court noted that we “had previously ‘held
that the crime of being “found in” the United States commences when the alien
enters the United States and is not completed until the defendant’s arrest.’” Id.
(quoting United States v. Coeur, 196 F.3d 1344, 1346 (11th Cir. 1999)). In Scott,
this Court agreed that “a violation of § 1326 is a continuing offense that can run
over a long period of time, as the offense conduct begins when the alien illegally
enters the United States and continues until the alien is actually ‘found’ by
4
Section 4A1.1(e) applies in two different situations: (1) if the defendant commits the
instant offense less than two years after release from imprisonment on a sentence of at least 60
days, or (2) if the defendant commits the instant offense while in imprisonment or escape status
on a sentence of at least 60 days. See U.S.S.G. § 4A1.1(e).
13
immigration authorities.” Id. at 1369; see also Coeur, 196 F.3d at 1346.
Ultimately, the Scott Court held that “an alien is constructively ‘found in’
the United States when the government either knows of or, with the exercise of
diligence typical of law enforcement authorities, could have discovered the
illegality of the defendant’s presence.” Scott, 447 F.3d at 1369 (quotation marks
omitted). The Court then determined that Scott should have been considered
“found in” the United States, for purposes of § 1326, on August 25, 2004, the date
of his initial interview with immigration officials. Id. at 1370. The Scott Court
concluded that on August 25, 2004, Scott’s illegal re-entry offense was complete
and he had not yet begun serving his 180-day sentence for the probation violation
(as it was not imposed until September 15, 2004). Accordingly, this Court
concluded that the district court improperly applied § 4A1.1(e) and vacated Scott’s
sentence. Id.
Here, there is no dispute that, under Scott, Zarabia’s offense conduct was
complete on April 14, 2004, the date that he was found in the United States by
immigration officials. Rather, the issue in this case is when Zarabia’s offense
conduct began – on July 10, 1999, when he was arrested in Georgia, or on April
14, 2004, when he was found in the United States by immigration officials.
Based on Scott and Coeur, we conclude that Zarabia’s violation of § 1326
14
began when he illegally re-entered the United States, and that this offense conduct
necessarily occurred on or before July 10, 1999, the date that Zarabia undisputedly
was arrested in Georgia. Therefore, part of Zarabia’s offense conduct occurred
within two years of his release from imprisonment on March 16, 1998.
Accordingly, Zarabia has not shown that the district court erred in adding one
criminal history point to his criminal history score, pursuant to § 4A1.1(e), for
committing the instant illegal re-entry offense within two years of his release from
imprisonment.
B. Allocution
Zarabia argues that the district court erred by imposing sentence before
allowing him the opportunity for allocution, as required by Fed. R. Crim. P.
32(i)(4)(A). Although Zarabia admittedly addressed the court at the resentencing
hearing, Zarabia argues that this did not occur until after the district court already
had imposed sentence.
Rule 32(i)(4)(A) provides that “[b]efore imposing sentence, the court
must . . . address the defendant personally in order to permit the defendant to speak
or present any information to mitigate the sentence . . . .” Fed. R. Crim. P.
32(i)(4)(A)(ii). However, “a district court’s failure to permit a defendant to
allocute at sentencing does not rise to the level of a constitutional error or a
15
fundamental procedural defect, such that the omission is ‘inconsistent with the
rudimentary demands of fair procedure.’” United States v. Quintana, 300 F.3d
1227, 1231 (11th Cir. 2002) (quoting Tamayo, 80 F.3d at 1521). Therefore, “[i]f
the defendant does not object to the district court’s failure to permit allocution at
sentencing, we will remand only if the failure results in manifest injustice.” Id. at
1231-32.5
At his resentencing, Zarabia did not object to the district court’s failure to
permit allocution, and thus, we will remand only for manifest injustice. “To
demonstrate manifest injustice, a petitioner must demonstrate (1) that there was
error; (2) that was plain; (3) that affected his substantial rights; and (4) that
affected the fundamental fairness of the proceedings.” Quintana, 300 F.3d at 1232.
Here, Zarabia points out that the district court noted it was “imposing a
sentence of 77 months” after it denied Zarabia’s motion for downward departure
but before allowing Zarabia the opportunity to allocute. We also recognize the
government’s argument that the sentencing transcript read as a whole makes clear
that the district court did not formally impose a sentence until after personally
addressing Zarabia and allowing him an opportunity to speak on his own behalf.
5
See also United States v. Jones, 899 F.2d 1097, 1103 (11th Cir. 1990) (“Where the
district court has offered the opportunity to object and a party is silent . . . , objections to the
sentence will be waived for purposes of appeal, and this court will not entertain an appeal based
upon such objections unless refusal to do so would result in manifest injustice.”), overruled on
other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993).
16
We need not decide what came first because even if we assume arguendo
that the district court imposed a sentence without first allowing Zarabia an
opportunity to allocute, Zarabia has not demonstrated manifest injustice. Zarabia
was sentenced to the lowest sentence under the advisory guidelines range, and he
has failed to articulate, on appeal, anything that he could have said that would have
resulted in the district court imposing a sentence below the advisory guidelines
range. Indeed, the district court ultimately allowed Zarabia to allocute and then
repeated the same sentence. Simply, Zarabia has not carried his burden to
demonstrate manifest injustice.
C. Reasonableness of Sentence
Zarabia argues that the district court imposed sentence without any
discussion of the 18 U.S.C. § 3553(a) factors, and therefore, that the district court
applied the guidelines “in a de facto mandatory or presumptively reasonable
manner” in violation of his Fifth and Sixth Amendment rights. Zarabia also argues
that his sentence is unreasonable. Specifically, Zarabia contends that (1) his
advisory guidelines range was heavily influenced by his criminal history, which he
contends “is different than a typical category VI offender”; (2) the application of
the guidelines “led to an unreasonable and unjust result” by enhancing his sentence
16 levels based on a prior conviction for which he received only a 6 1/2-month jail
17
sentence; and (3) his sentence resulted in an unwarranted sentencing disparity
compared with similarly-situated defendants in jurisdictions with an early
disposition, or “fast-track,” program.
After Booker, a district court, in determining a reasonable sentence, must
correctly calculate the sentencing range under the guidelines and then consider the
factors set forth in 18 U.S.C. § 3553(a). See United States v. Talley, 431 F.3d 784,
786 (11th Cir. 2005).6 “[N]othing in Booker or elsewhere requires the district
court to state on the record that it has explicitly considered each of the § 3553(a)
factors or to discuss each of the § 3553(a) factors.” United States v. Scott, 426
F.3d 1324, 1329 (11th Cir. 2005). Instead, indications in the record that the district
court considered facts and circumstances falling within § 3553(a)’s factors will
suffice. Id. at 1329-30; Talley, 431 F.3d at 786.
We review a defendant’s ultimate sentence for reasonableness in light of the
§ 3553(a) factors. See United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.
6
“The factors in § 3553(a) include:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant; (2) the need to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (3) the need
for deterrence; (4) the need to protect the public; (5) the need to provide the
defendant with needed educational or vocational training or medical care; (6) the
kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims.
Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)).
18
2005). This “[r]eview for reasonableness is deferential. . . . and when the district
court imposes a sentence within the advisory Guidelines range, we ordinarily will
expect that choice to be a reasonable one.” Talley, 431 F.3d at 788. “[T]he party
who challenges the sentence bears the burden of establishing that the sentence is
unreasonable in the light of both [the] record and the factors in section 3553(a).”
Id.
After review, we cannot say that Zarabia’s 77-month sentence is
unreasonable. First, the district court correctly calculated the advisory guidelines
range and indicated that it had considered the § 3553(a) factors. Although the
district court did not discuss each of the § 3553(a) factors, it was not required to do
so. See Scott, 426 F.3d at 1329. Moreover, the record indicates that the district
court considered several of the § 3553(a) factors, including (1) the history and
characteristics of the defendant, 18 U.S.C. § 3553(a)(1), when it denied Zarabia’s
motion for downward departure based on an over-representation of criminal
history; (2) the need to provide the defendant with needed educational or
vocational training, § 3553(a)(2)(D), when it advised Zarabia to improve himself
and “get all of the training that you can get right now”; and (3) the advisory
guidelines term of imprisonment, § 3553(a)(4). Accordingly, we reject Zarabia’s
claim that the district court treated the guidelines in a de facto mandatory manner.
19
Second, the district court imposed a sentence within the advisory guidelines
range, and “we ordinarily will expect that choice to be a reasonable one.” Talley,
431 F.3d at 788.
Finally, Zarabia has not met his burden of showing that his sentence is
unreasonable. None of the factors he cites demonstrate that his 77-month sentence
is unreasonable. First, as discussed above, the district court correctly calculated
Zarabia’s criminal history category. Second, the 16-level enhancement was proper
under the guidelines and was affirmed by this Court in Zarabia’s first appeal, and
therefore, did not lead to an unreasonable or an unjust sentence. Third, Zarabia’s
argument that the lack of a “fast-track” program in the Middle District of Florida
creates an unwarranted sentencing disparity already has been rejected by this
Court. See United States v. Castro, 455 F.3d 1249, 1252-53 (11th Cir. 2006)
(concluding that § 3553(a)(6) does not require the district court to depart based on
the availability of a “fast-track” departure in some districts and affirming sentence
as reasonable). Accordingly, we cannot say that the district court’s sentence is
unreasonable.
III. CONCLUSION
Based on the foregoing reasons, we affirm Zarabia’s 77-month sentence.
AFFIRMED.
20