UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4898
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE GUADALUPE REYES-INFANTE, a/k/a Ramiro Infante-Valadez,
a/k/a Jose Guadalupe Mesa-Reyes, a/k/a Jose Martinez
Hernandez, a/k/a Jose Meza-Reyes, a/k/a Jose Reyes Mesa,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:11-cr-00025-1)
Submitted: February 28, 2012 Decided: March 13, 2012
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, Erik S. Goes,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Guadalupe Reyes-Infante pled guilty to unlawful
reentry after previously being deported following conviction of
an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006), without benefit of a plea agreement. The district court
sentenced him to a term of thirty-six months’ imprisonment, a
downward variance of one month which the parties agreed was
warranted to ensure that Reyes-Infante received credit for the
time he had already spent in custody. Reyes-Infante appeals his
sentence, contending that his sentence is unreasonable. We
affirm.
Reyes-Infante’s offense level calculation included a
16-level enhancement because he had previously been deported
after conviction for a crime of violence — attempted capital
murder. U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)
(2010). Reyes-Infante did not contest the calculation of his
Guidelines range. However, he requested a downward departure
pursuant to 18 U.S.C. § 3553(a) (2006), on two grounds: first,
that the 16-level increase for deportation after an aggravated
crime was not based on empirical data, and, second, that the
lack of a fast track program created an unwarranted disparity
between him and similarly situated defendants in districts with
fast track programs who were eligible for a downward departure
under USSG § 5K3.1, p.s. See USSG § 3553(a)(6) (need for
2
sentence “to avoid disparity among defendants with similar
records who have been found guilty of similar conduct”).
Reyes-Infante acknowledged this court’s precedent
holding that sentencing disparity resulting from the fact that
not all districts have fast track programs is not an unwarranted
disparity under § 3553(a)(6), and that “the need to avoid such
disparities [does] not justify the imposition of a below-
guideline variance sentence.” United States v. Perez-Pena, 453
F.3d 236, 244 (4th Cir. 2006). However, Reyes-Infante pointed
out that there is now a circuit split concerning whether United
States v. Kimbrough, 552 U.S. 85 (2007), * has changed the
analysis, making a variance on this ground available.
The district court decided that a thirty-seven-month
sentence, the bottom of the Guidelines range, was sufficient but
not greater than necessary in light of Reyes-Infante’s criminal
history and his repeated illegally entries into the United
States. The court was later persuaded to reduce the sentence to
thirty-six months to give Reyes-Infante credit for the time he
*
In Kimbrough, the Supreme Court held that a district court
may deviate from the advisory Guidelines range for crack cocaine
offenses if it concludes that the disparity between the ranges
for crack and power cocaine results in a sentence greater than
necessary to achieve the sentencing goals of § 3553(a). 552 U.S.
at 91.
3
had spent in custody after his arrest, a variance to which the
government did not object.
On appeal, Reyes-Infante first argues that his
sentence is unreasonable because, like the crack Guideline
reviewed in Kimbrough, the policy underlying § 2L1.2(b)(1)(A) is
not supported by empirical data. He relies on United States v.
Amezcua-Vasquez, 567 F.3d 1050, 1055-56, 1058 (9th Cir. 2009)
(holding that 16-level increase resulted in unreasonable
sentence where predicate offense was too old to be counted in
criminal history and defendant had no later convictions for
violent offenses).
We review a sentence under a deferential abuse of
discretion standard, which requires consideration of both the
procedural and substantive reasonableness of a sentence.
Gall v. United States, 552 U.S. 38, 41, 51 (2007). If there is
no procedural error, and none is alleged here, we review the
substantive reasonableness of the sentence by examining “the
totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).” United
States v. Mendoza-Mendoza, 597 F.3d 212 (4th Cir. 2010).
We recently held that, although after Kimbrough, “a
sentencing court may be entitled to consider policy decisions
underlying the Guidelines, it is under no obligation to do so.”
4
United States v. Rivera-Santana, ___ F.3d ___, 2012 WL 310871
(4th Cir. Feb. 2, 2012) (internal citation omitted). Kimbrough
does not require appellate courts to disagree with the policy
underlying a guideline. United States v. Talamantes, 620 F.3d
901, 902 (8th Cir. 2010) (per curiam). While “district courts
certainly may disagree with the Guidelines for policy reasons
and may adjust a sentence accordingly[,] . . . if they do not,
[appellate courts] will not second-guess their decisions under a
more lenient standard simply because the particular Guideline is
not empirically-based.” United States v. Mondragon-Santiago,
564 F.3d 357, 367 (5th Cir. 2009). Although Reyes-Infante had
no prior convictions that counted in his criminal history, the
district court noted that he had convictions for theft, attempt
to commit capital murder on a police officer, and burglary of a
building, as well as repeated illegal reentries, and that prior
sentences had not deterred him from criminal conduct. We
conclude that the district court did not abuse its discretion in
deciding not to vary below the Guidelines range to offset the
16-level enhancement.
Next, Reyes-Infante maintains that his sentence fails
to account for the sentencing disparity between similarly
situated defendants in districts with fast track programs and
those like him who are sentenced in a district lacking such a
program. He questions whether Kimbrough calls Perez-Pena into
5
question and notes that, post-Kimbrough five circuits have held
that courts may consider fast-track disparity in the § 3553(a)
analysis. Compare United States v. Jiminez-Perez, 659 F.3d 704
(8th Cir. 2011) (disparity resulting from absence of fast track
program not excluded as sentencing factor); United States v.
Reyes-Hernandez, 624 F.3d 405, 417 (7th Cir. 2010) (same);
United States v. Camacho-Arellano, 614 F.3d 244 (6th Cir. 2010)
(same); United States v. Arrelucea-Zamudio, 581 F.3d 142, 149
(3d Cir. 2009) (same); United States v. Rodriquez, 527 F. 221,
229 (1st Cir. 2008) (same); with United States v. Gonzalez-
Zotelo, 556 F.3d 736, 739-41 (9th Cir. 2009) (Kimbrough did not
undermine precedent holding that fast track disparities are not
unwarranted); United States v. Vega-Castillo, 540 F.3d 1235,
1239 (11th Cir. 2008) (same); United States v. Gomez-Herrera,
523 F.3d 554, 562-63 (5th Cir. 2008) (same).
We have not yet addressed the issue, but need not
resolve it in this case. The district court did not indicate
that it believed it lacked authority to consider a possible
sentencing disparity based upon the absence of a fast-track
program. Instead, the district court rejected Reyes-Infante’s
arguments. In its explanation for the sentence, which was
initially within the Guidelines range, the district court found
that Reyes-Infante repeatedly reentered the United States
without permission, committed crimes after illegal reentry, and
6
had not been deterred from such action by his prior sentences.
The district court’s findings, and the fact that the court
concluded that a sentence within the Guidelines range was
sufficient, indicate that the court chose not to vary downward
to offset the lack of a fast track program. We conclude that
the sentence was not procedurally or substantively unreasonable.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
7