[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 12, 2008
No. 07-12141 THOMAS K. KAHN
_______________________ CLERK
D.C. Docket No. 06-00087-CR-4-SPM-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR GONZALO VEGA-CASTILLO,
Defendant-Appellant.
_______________________
Appeal from the United States District Court
for the Northern District of Florida
_______________________
ON PETITION FOR REHEARING EN BANC
(Opinion issued August 19, 2008)
Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, and
PRYOR, Circuit Judges.
O R D E R:
The Court having been polled at the request of one of the members of the
Court and a majority of the Circuit Judges who are in regular active service not
having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;
Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.
/s/ J. L. EDMONDSON
CHIEF JUDGE
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CARNES, Circuit Judge, concurring:
I concur in the denial of rehearing en banc but might vote to carry en banc a
case that more clearly presents the issue of whether sentencing disparities arising
from the location of fast track or early disposition programs may justify a 18
U.S.C. § 3553(a) variance.
I agree with the panel majority that it was bound under our prior precedent
rule to follow our decisions in United States v. Castro, 455 F.3d 1249, 1252–53
(11th Cir. 2006), and United States v. Llanos-Agostadero, 486 F.3d 1194,
1198–99 (11th Cir. 2007), notwithstanding the later decision in Kimbrough v.
United States, 552 U.S. —, 128 S. Ct. 558, 570, 574 (2007). Even if Kimbrough’s
reasoning calls into question the reasoning of our earlier decisions, that is not
enough for a panel to depart from them. See, e.g., Atl. Sounding Co. v. Townsend,
496 F.3d 1282, 1284 (11th Cir. 2007) (“Under our prior panel precedent rule, a
later panel may depart from an earlier panel’s decision only when the intervening
Supreme Court decision is clearly on point.” (quotation marks omitted)). We
adhere closely in this circuit to the prior precedent rule, and it is good that we do.
See id. at 1286 (Carnes, J., concurring) (explaining why the prior precedent rule is
important).
At the same time, the stronger our commitment at the panel level to prior
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precedent where there has been an intervening Supreme Court decision arguably
calling it into question, the greater ought to be our willingness to reconsider that
precedent en banc. With that thought in mind, I have looked closely at this case.
My conclusion is that it is not a good candidate for en banc review. It does not
present us with the best, or even a good, factual basis for deciding whether
sentencing disparities arising from the location of fast track or early disposition
programs may be the basis for a 18 U.S.C. § 3553(a) variance.
The argument in favor of permitting a variance is that defendants in thirteen
or so of the federal districts around the country are earning early disposition
sentencing departures, up to four levels, that defendants in the other eighty-one
districts are not eligible to receive. See generally U.S.S.G. § 5K3.1. The
argument derives its force from the notion that two defendants with essentially the
same sentencing profile and post-charge conduct should not be treated differently
merely because of the part of the country where they committed their crime. If a
defendant in New Mexico gets a lower sentence because he meets the early
disposition criteria, then a materially identical defendant in Florida who meets
those same criteria (except for where he is located) ought to get one, too. Or, at
least, the sentencing judge in Florida ought to be allowed to vary downward in
calculating the sentence in order to even things up. That is the argument; that is
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the issue. Our Castro and Llanos-Agostadero decisions rejected that argument but
then came Kimbrough. If Kimbrough has not revived the issue, it has at least put a
few post-mortem twitches in it that might justify a fresh look en banc.
The problem is that this particular case will not give us a good look at that
potentially meritorious issue. The reason is that Vega-Castillo likely would not
have been eligible for, or offered a chance at, early disposition credit even if he
had been apprehended and sentenced in a district with such a program. Vega-
Castillo, who was convicted of reentering the United States illegally after having
been deported or removed following a conviction for commission of an aggravated
felony, in violation of 8 U.S.C. § 1326(a)(1), (b)(2), had been deported not just
once but twice when he reentered. His record included a conviction for selling
crack and two violent crime convictions, at least one of which was a felony. He
had a total of either 11 or 13 criminal history points. According to the assertions
in the government’s brief, which Vega-Castillo has not denied, those facts likely
would have rendered him ineligible for a fast track disposition departure in many,
if not all, districts with such programs.
If we were going to take a case en banc to reconsider our Castro and Llanos-
Agostadero precedents in light of the Kimbrough decision, it needs to be one
where the facts put the issue in sharp focus. It needs to be a case where there is no
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apparent reason why the defendant would not have been offered the benefits of an
early disposition program if he had been in a district with that kind of program. It
needs to be a case where the resolution of the issue will matter to the defendant.
See Boxer X v. Harris, 459 F.3d 1114, 1114–16 (11th Cir. 2006) (Carnes, J.,
concurring in the denial of rehearing en banc). Vega-Castillo has not shown, and
given his criminal history it is unlikely he could show, that he would have been
approved for the program if only he had been caught in a district where one was
available. He has not shown, and probably cannot show, that he is similarly
situated to any defendant in any other district who received an early disposition
sentence credit.
There is another problem with Vega-Castillo’s case. The criteria the
Attorney General adopted require as a condition for participation in the early
disposition program the following:
B. Minimum requirements for “fast-track” plea agreement. The
Defendant must enter into a written plea agreement that
includes at least the following terms:
i. The defendant agrees to a factual basis that accurately
reflects his or her offense conduct;
ii. The defendant agrees not to file any of the motions
described in Rule 12(b)(3), Fed. R. Crim. P.
iii. The defendant agrees to waive appeal; and
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iv. The defendant agrees to waive the opportunity to
challenge his or her conviction under 28 U.S.C. § 2255,
except on the issue of ineffective assistance of counsel.
Memorandum from Attorney General John Ashcroft Setting Forth Justice
Department’s “Fast-Track” Policies Sept. 22, 2003, 16 Fed. Sent’g Rep. 134, 135
(2003), available at WL 23475483. Vega-Castillo did not file an appeal waiver or
a waiver of his right to attack his conviction in a 28 U.S.C. §2255 proceeding on
any ground other than ineffective assistance of counsel. Because those waivers
are a uniform requirement of the programs, he is not similarly situated to any of
the defendants who received the departure in other districts.
Of course, a defendant cannot be required to file an appeal waiver covering
the fast track program disparity issue as a condition of appealing that very issue.
However, it might well be reasonable to require the defendant to offer to file an
appeal waiver covering every issue except fast track disparity in order to align
himself as closely as possible with those defendants in other districts who have
received the departure. That offer would make him more similar to those in other
districts who benefitted from the program. And, in any event, there was no reason
why Vega-Castillo could not have offered to enter the same waiver of the right to
attack his conviction in a § 2255 proceeding that has been required of every
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defendant who has gotten the benefit of the fast track program anywhere else.
Because of Vega-Castillo’s criminal record, his failure to offer to waive his
right to attack his conviction in a § 2255 proceeding, and his failure to offer to
waive his right to appeal his sentence except for the issue at hand, his case does
not adequately present the issue of whether a district court may, in an appropriate
case, vary downward under § 3553(a) to eliminate disparities caused by the
location of fast-track or early disposition programs.
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