United States v. Vega-Castillo

[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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