IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 1, 2009
No. 08-50902 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JORGE HERIBERTO DUARTE
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
After he was apprehended on March 15, 2008, near El Paso, within a few
days of wading across the Rio Grande into Texas, Jorge Heriberto Duarte, a
Mexican national, pled guilty to illegal reentry 1 on June 19, 2008, and on August
29 he received a sentence of forty-six months’ imprisonment, at the low end of
the range advised under the federal sentencing guidelines. A previous drug
1
8 U.S.C. § 1326(a).
No. 08-50902
felony, which led to a brief prison term and then removal in May 2007,
dramatically increased Duarte’s sentencing range under the Guidelines.2
Duarte appeals his sentence, arguing that it was substantively
unreasonable, that the inconsistent availability of “fast-track” programs that
decrease some federal sentences leads to arbitrary and unlawful sentencing
disparities, and that his within-Guidelines sentence is not entitled to our
presumption of reasonableness 3 in light of the Supreme Court’s decision in
Kimbrough.4
I
In his central argument, Duarte asserts that the fact that his previous
crime factored into his Guidelines range not only on his Criminal History
Category but also on his offense level indicates an unjust “double-counting” of
the old crime. He argues that the dramatically heightened punishment meted
out upon reentering deportees convicted of certain predicate offenses is
unsupported by empirical study and evidentiary reliability. Citing language
from the Supreme Court’s judgment in Kimbrough that highlighted a lack of
empirical support for crack versus powder cocaine sentencing disparities as a
factor supporting the district judge’s discretionary downward departure in that
case, Duarte claims that an examination of a Sentencing Guideline’s empirical
basis is now indispensable before appellate courts can apply a presumption of
2
See U.S.S.G. § 2L 1.2(a). The base offense level of 8 was increased by 16 due to his
previous removal and drug conviction; this, combined with a criminal history category of III,
led to a sentencing range of 46 to 57 months of imprisonment. Without the 16 level increase,
but with all other factors held constant, his sentencing range would have been 2 to 8 months.
3
See U.S. v. Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006).
4
Kimbrough v. U.S., 128 S.Ct. 118 (2007).
2
No. 08-50902
reasonableness to within-Guidelines sentences imposed by district judges. In
essence, Duarte asks us to remove the presumption of reasonableness as to this
and other allegedly non-empirically-grounded provisions of the Guidelines.
As the government points out, numerous panels of this court have faced
and rejected arguments similar to Duarte’s,5 but only after briefing was
completed in this case did a published opinion on point issue, United States v.
Mondragon-Santiago.6 Another published opinion, United States v. Campos-
Maldonado,7 also sheds some light. The question was subject only to plain error
review in Campos-Maldonado and Mondragon-Santiago,8 whereas Duarte has
preserved his objection, but here the difference is of no moment.
Duarte argues with some force that the sixteen-level enhancement
provided for illegal re-enterers who commit certain crimes can lead to excessive
sentences for some defendants. He does not, however, point to any law
suggesting how this possibility of unjust sentences – a persistent possibility
under any system of sentencing and, more to the point, under any form of
appellate review of sentencing – gives us authority to overturn the presumption
of reasonableness that this court applies to within-Guidelines sentences.
5
See, e.g., U.S. v. Gonzalez-Camacho, 301 F. App’x 314 (5th Cir. 2008); U.S. v. Laines-
Funes, 299 F. App’x 471 (5th Cir. 2008); U.S. v. Ponce-Lopez, 299 F. App’x 410 (5th Cir. 2008);
U.S. v. Alcaraz-Salazar, 300 F. App’x 275 (5th Cir. 2008); U.S. v. Aguirre-Lopez, 299 F. App’x
295 (5th Cir. 2008); U.S. v. Ocampo-Zuniga, 298 F. App’x 400 (5th Cir. 2008); U.S. v. Infante-
Ramirez, 298 F. App’x 394 (5th Cir. 2008); U.S. v. Vela-Martinez, 300 F. App’x (5th Cir. 2008).
6
__ F.3d __, 2009 WL 782894, *8-*9 (5th Cir. 2009).
7
531 F.3d 337 (5th Cir. 2008).
8
This is never specified in the relevant section of opinion, presumably because the
panel did not consider it of any import, but it appears to have been the case. Either way, that
decision’s reasoning is compelling, so we need not labor the point.
3
No. 08-50902
Intervening Supreme Court guidance, of course, could provide an avenue
for our panel to revisit court precedent, but Duarte rests too much on the thin
reed of Kimbrough, particularly reading Kimbrough in light of Rita, which
expressly approves circuit courts’ presumption of reasonableness for Guidelines
sentences.9 It is true that the Kimbrough Court “recognized that certain
Guidelines do not take account of empirical data and national experience,” 10 but
absent further instruction from the Court, we cannot read Kimbrough to
mandate wholesale, appellate-level reconception of the role of the Guidelines and
review of the methodologies of the Sentencing Commission.11 Whatever
9
Rita v. U.S., 127 S.Ct. 2456 (2007). See especially id. at 2464-65 (“The result [of the
Sentencing Commission’s ongoing work] is a set of Guidelines that seek to embody the §
3553(a) considerations, both in principle and in practice. Given the difficulties of doing so, the
abstract and potentially conflicting nature of § 3553(a)’s general sentencing objectives, and the
differences of philosophical view among those who work within the criminal justice community
as to how best to apply general sentencing objectives, it is fair to assume that the Guidelines,
insofar as practicable, reflect a rough approximation of sentences that might achieve §
3553(a)’s objectives.”). See also Kimbrough, 128 S. Ct. at 574-75.
10
U.S. v. Rosales-Robles, 294 F. App’x 154, 155 (5th Cir. 2008); see Kimbrough, 128 S.
Ct. at 575.
11
“ Kimbrough did not question the appellate presumption . . . and its holding does not
require discarding the presumption for sentences based on non-empirically-grounded
Guidelines. . . . Even if the Guidelines are not empirically-grounded, the rationale of Rita
undergirding the presumption still holds true . . . .” Mondragon-Santiago, 2009 WL at *8-*9.
See also Rita, 127 S. Ct. at 2465, 2467 (contrasting the district court’s role in sentencing and
the appellate presumption of reasonableness); Kimbrough, 128 S.Ct. at 574 (“Section
3553(a)(6) directs district courts to consider the need to avoid unwarranted disparities – along
with other § 3553(a) factors – when imposing sentences.”). Our narrow reading of Kimbrough
is supported by the Court’s note in United States v. Gall, 128 S. Ct. 586, 594 n. 2 (2007)
(“Notably, not all of the Guidelines are tied to this empirical evidence. For example, the
Sentencing Commission departed from the empirical apporach when setting the Guidelines
range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory
minimum sentences that Congress established for such crimes. This decision, and its effect
on a district judge’s authority to deviate from a Guidelines range in a particular drug case, is
addressed in Kimbrough . . . .”) (emphasis added) (internal citation omitted)).
4
No. 08-50902
appropriate deviations it may permit or encourage at the discretion of the
district judge, Kimbrough does not force district or appellate courts into a piece-
by-piece analysis of the empirical grounding behind each part of the sentencing
guidelines. To the contrary, rather than aggrandizing appellate courts and
sanctioning analysis from on high, the thrust of recent Supreme Court decisions
has been to affirm the traditional entrustment of sentencing to the discretion of
district courts, close to the ground and more cognizant of the details of offender
and offense that should be determinative of sentence. Indeed, the very district
court cases that Duarte cites in his critique of the re-entry sentencing guidelines
are exemplary of how district courts use their discretion to apply guidelines to
particular facts.12
II
As Duarte acknowledges, the argument that disparities in the availability
of “fast track” programs among federal districts requires that sentences be
adjusted in the absence of “fast track” possibilities is foreclosed by precedent on
this circuit,13 so we do not consider it further.
Duarte provides no real grounds to doubt the reasonableness of his
sentence. The district judge, before whom Duarte had previously appeared,
considered Duarte’s case carefully, including the arguments Duarte raised at
sentencing. Upon examination of the record, we do not find that the sentence
was unreasonable.
We AFFIRM the district court's judgment.
12
See U.S. v. Santos, 406 F.Supp. 2d 320, 327-29 (S.D.N.Y. 2005); U.S. v. Zapata-
Treviño, 378 F. Supp. 2d 1321, 1324-28 (D.N.M. 2005); U.S. v. Galvez-Barrios, 355 F.Supp.2d
958, 961-63 (E.D. Wis. 2005);
13
U.S. v. Gomez-Herrera, 523 F.3d 554 (5th Cir. 2008).
5