United States v. Noe Arevalo-Juarez

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 15, 2006
No. 05-16313 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 05-00060-CR-WTM-4

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

NOE AREVALO-JUAREZ,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
_________________________

(September 15, 2006)

Before MARCUS, WILSON and COX, Circuit Judges.

MARCUS, Circuit Judge:

The United States appeals from a sentence of 30 months’ imprisonment

imposed by the district court on Noe Arevalo-Juarez, a citizen of Mexico. Arevalo-
Juarez pleaded guilty to a charge of unlawful reentry into the United States after

removal following a felony conviction, in violation of 8 U.S.C. §§ 1326(a) and (b).

On appeal, the government argues that the trial court erred by sentencing Arevalo-

Juarez to a term of imprisonment below the Guidelines range to alleviate

sentencing disparities associated with the unavailability of early disposition or

“fast-track” programs in the Southern District of Georgia. The government

suggests that such disparities are an impermissible basis for sentencing.

After thorough review, we conclude that the district court erred in basing

Arevalo-Juarez’s sentence on sentencing disparities associated with early

disposition programs inapplicable in the Southern District of Georgia.

Accordingly, we vacate Arevalo-Juarez’s sentence and remand for resentencing

consistent with this opinion.

I.

The essential facts in the case are these. On March 22, 2005, a grand jury

returned an indictment against Arevalo-Juarez in the United States District Court

for the Southern District of Georgia. The indictment charged that Arevalo-Juarez

violated 8 U.S.C. §§ 1326(a) and (b) by unlawfully reentering the United States

after having been removed after a felony conviction for second-degree child

molestation. Arevalo-Juarez pleaded guilty to the indictment on October 12, 2005.

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At the sentencing hearing, the district court adopted the factual statements made in

the Presentence Investigation Report (PSI) as its findings of fact, and it adopted the

PSI’s calculations of the applicable advisory Guidelines sentence. The district

court noted that application of the Guidelines produced a total offense level of 21,

criminal history category III, 46 to 57 months’ imprisonment, two to three years’

supervised release, a fine of $7500.00 to $75,000.00, no restitution, and a special

assessment of $100.

The district court then departed from the Guidelines range, imposing a

sentence of 30 months’ imprisonment, three years’ supervised release with

standard and special conditions of supervision, and an assessment of $100. The

court noted that the term of imprisonment was 16 months lower than the minimum

sentence recommended under the Guidelines. The court observed that it had set the

defendant’s sentence to effectively “reduc[e] the guideline range four offense

levels.” It explained its ruling this way:

[W]ithout this adjustment there will be a disparity in sentencing between this
defendant and like defendants who are sentenced in border states where the
Attorney General of the United States has authorized early disposition or
fast-track programs. In this Court’s opinion it should not make any
difference in what state you committed the offense; it should be what the
offense that you committed was compared to the offense committed by other
defendants who might commit those offenses within fast-track programs.

The Guidelines expressly provide that on a motion by the government, a

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district court may grant a downward departure of up to four levels pursuant to an

early disposition or “fast-track” program specifically authorized by the Attorney

General and the United States Attorney in the district housing the program. United

States Sentencing Commission, Guidelines Manual, § 5K3.1 p.s. (Nov. 2004).1

Congress directed the Sentencing Commission to permit such departures in the

Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today

Act (PROTECT Act) of 2003, Pub. L. No. 108-21 § 401(m)(2)(B), 117 Stat. 650,

675. As we explained in United States v. Anaya Castro, 455 F.3d 1249 (11th Cir.

2006) (per curiam):

The fast-track departure is available to defendants who “agree to the factual
basis [of the criminal charge] and waive the rights to file pretrial motions, to
appeal, and to seek collateral relief (except for ineffective assistance of
counsel),” United States v. Morales-Chaires, 430 F.3d 1124, 1127 (10th Cir.
2005) (quoting United States v. Meléndez-Torres, 420 F.3d 45, 52 (1st Cir.
2005)), but only in judicial districts that participate in a[n] “early disposition
program authorized by the Attorney General of the United States and the
United States attorney for the district in which the court resides.” U.S.S.G. §
5K3.1.

Anaya Castro, 455 F.3d at 1251 (first alteration in original).

1
The relevant Guidelines provision states:

§5K3.1. Early Disposition Programs (Policy Statement)

Upon motion of the Government, the court may depart downward not more than 4 levels
pursuant to an early disposition program authorized by the Attorney General of the
United States and the United States Attorney for the district in which the court resides.

USSG § 5K3.1 p.s.

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 The government objected to the sentence. It pointed out that an early

disposition departure under § 5K3.1 was impermissible because no early

disposition program was ever authorized by the Attorney General or the United

States Attorney in the Southern District of Georgia. Moreover, the government

argued, even if an early disposition program had been authorized in the district,

Arevalo-Juarez would not have been eligible for early disposition anyway under

the facts of his case, because the government had not moved for a departure,

Arevalo-Juarez had not agreed to an appeal waiver, and Arevalo-Juarez’s earlier

offense was a crime of violence.2 Finally, the government said that a four-level

departure, the maximum allowable under an early disposition program, was

unwarranted. The district court judge noted that he disagreed with the

government’s objection and stood by his sentence. The court then entered

2
The PROTECT Act directed the Sentencing Commission to issue “a policy statement
authorizing a downward departure of not more than 4 levels if the Government files a motion for
such departure pursuant to an early disposition program authorized by the Attorney General and
the United States Attorney.” PROTECT Act § 401(m)(2)(B). On September 22, 2003, then-
Attorney General John Ashcroft issued a memorandum to all United States Attorneys outlining
the criteria he would use in determining whether to approve a United States Attorney’s proposed
early disposition program for a specific category of cases. Letter from John Ashcroft, U.S. Att’y
Gen., to All Federal Prosecutors (Sept. 22, 2003), reprinted in 16 Fed. Sent’g Rep. 134 (2003).
One of Attorney General Ashcroft’s criteria was that the cases for which early disposition is
available “do not involve an offense that has been designated by the Attorney General as a
‘crime of violence.’” Id. at 135. The memorandum further stated that an early disposition
program must require a defendant to enter a written plea agreement including an agreement to
the factual basis of the offense conduct, a waiver of the pretrial motions described in Rule
12(b)(3) of the Federal Rules of Criminal Procedure, a waiver of appeal rights, and waiver of the
opportunity to seek collateral relief under 28 U.S.C. § 2255 on a basis other than ineffective
assistance of counsel. Id.

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judgment on October 14, 2005, and the government timely filed a notice of appeal

from the sentence.

II.

The principal issue in this appeal is whether sentencing disparities associated

with the availability or lack of availability of early disposition programs in certain

districts are a permissible consideration under 18 U.S.C. § 3553(a), which sets out

the factors to be considered in imposing a sentence.

We start by noting that this is not a case where the district court calculated

the Guidelines range incorrectly or erroneously applied a Guidelines departure

based on a mistaken conclusion that the Guidelines contemplated and permitted

such a departure. Plainly, the district court judge recognized that Arevalo-Juarez

was not entitled to a departure under the terms of USSG § 5K3.1. That Guideline

requires a “motion of the Government” and only authorizes departure “pursuant to

an early disposition program authorized by the Attorney General of the United

States and the United States Attorney for the district in which the court resides,”

id., and the district court plainly realized that neither circumstance applied to

Arevalo-Juarez. Rather, this is a case where the district court calculated the

Guidelines correctly and then proceeded to impose a sentence outside the

Guidelines range but within statutory limits. Compare United States v. Crawford,

6
407 F.3d 1174, 1181–82 (11th Cir. 2005) (vacating a sentence in a case where the

district court granted a spurious Guidelines departure based on incorrect

application of Guidelines provisions), with United States v. Williams, 435 F.3d

1350, 1354 n.2 (11th Cir. 2006) (per curiam) (affirming a sentence in a case where

the district court imposed a sentence outside the Guidelines range pursuant to its

discretionary authority).

Our task in reviewing the district court’s actions is to determine whether the

sentence the district court ultimately imposed was reasonable. United States v.

Booker, 125 S. Ct. 738, 767 (2005); Williams, 435 F.3d at 1353 (“Under Booker,

we review a defendant’s ultimate sentence for reasonableness.”). Our review is

“deferential” and focuses on whether the sentence imposed fails to achieve the

purposes of sentencing enumerated in § 3553(a). However, notably, “[a] sentence

based on an improper factor fails to achieve the purposes of § 3553(a) and may be

unreasonable[] regardless of length.” United States v. Williams, No. 05-13205,

2006 WL 2039993, at *5 (11th Cir. July 21, 2006). The government adequately

preserved an objection to the reasonableness of the ultimate sentence when it

argued that the circumstances of the defendant’s case did not warrant a four-

offense-level “departure.”

Among the factors a district court must consider in imposing a sentence is

7
“the need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).

On appeal, the government argues that when Congress directed the Sentencing

Commission to provide for downward departures connected with early disposition

programs, Congress anticipated that such departures would create sentencing

disparities, so the resulting disparities are not “unwarranted” disparities within the

scope of § 3553(a)(6). We agree.

Recently, in United States v. Anaya Castro, 455 F.3d 1249, we resolved this

issue in the government’s favor. In Anaya Castro, a defendant challenged his

sentence, arguing that the district court had failed to consider sentencing disparities

resulting from the absence of early disposition programs in the Northern District of

Georgia. We rejected the defendant’s argument, finding that “the district court

properly considered each of the section 3553(a) factors and imposed a reasonable

sentence.” Id. at 1252. We further stated:

Any disparity created by section 5K3.1 does not fall within the scope
of section 3553(a)(6). When Congress directed the Sentencing Commission
to allow the departure for only participating districts, Congress implicitly
determined that the disparity was warranted. Anaya-Castro’s interpretation
of section 3553(a)(6) conflicts with the decision of Congress to limit the
availability of the departure to participating districts . . . .

Id. at 1252–53 (emphasis added) (citations omitted).

We observed then, and we repeat, that a number of other circuits have

8
reached similar conclusions. See, e.g., United States v. Aguirre-Villa, No.

05-50978, 2006 WL 2349222, at *2 (5th Cir. Aug. 15, 2006) (per curiam) (“The

refusal to factor in, when sentencing a defendant, the sentencing disparity caused

by early disposition programs does not render a sentence unreasonable. . . .

Congress must have thought the disparity warranted when it authorized early

disposition programs without altering § 3553(a)(6).”); United States v.

Hernandez-Fierros, 453 F.3d 309, 314 (6th Cir. 2006) (“[F]ast-track guidelines

reductions were specifically authorized by statute due to the unique and pressing

problems related to immigration in certain districts. As a result, such a disparity

does not run counter to § 3553(a)’s instruction to avoid unnecessary sentencing

disparities.”); United States v. Perez-Pena, 453 F.3d 236, 244 (4th Cir. 2006)

(“[T]here is no reason to believe that Congress intended that sentencing disparities

between defendants who benefitted from prosecutorial discretion and those who

did not could be ‘unwarranted’ within the meaning of § 3553(a)(6).”); United

States v. Marcial-Santiago, 447 F.3d 715, 718 (9th Cir. 2006) (“[T]he disparity

between Appellants’ sentences and the sentences imposed on similarly-situated

defendants who are prosecuted in fast-track districts is not unwarranted.”); United

States v. Martinez-Martinez, 442 F.3d 539, 542 (7th Cir. 2006) (“Given Congress’

explicit recognition that fast-track procedures would cause discrepancies, we

9
cannot say that a sentence is unreasonable simply because it was imposed in a

district that does not employ an early disposition program.”); United States v.

Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc) (finding that the early

disposition scheme “certainly permits disparities[,] but they are the result of a

congressional choice made for prudential reasons, implicitly qualifying the general

aim of equality”); United States v. Sebastian, 436 F.3d 913, 916 (8th Cir. 2006)

(“The command that courts should consider the need to avoid ‘unwarranted

sentence disparities’ . . . emanates from a statute, and it is thus within the province

of the policymaking branches of government to determine that certain disparities

are warranted, and thus need not be avoided.”).

In light of our holding in Anaya Castro, it was impermissible for the district

court to consider disparities associated with early disposition programs in imposing

Arevalo-Juarez’s sentence, because such disparities are not “unwarranted

sentencing disparities” for the purposes of § 3553(a)(6). The Fourth and Seventh

Circuits have reached the same conclusion in appeals by the government. See

United States v. Perez-Pena, 453 F.3d 236, 244 (4th Cir. 2006); United States v.

Galicia-Cardenas, 443 F.3d 553, 555 (7th Cir. 2006) (per curiam). A fast-track

guidelines reduction was specifically authorized by Congress because of the

perceived unique and pressing immigration problems in certain districts. The

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appropriate Guideline (§ 5K3.1), however, provides unambiguously that a

defendant may benefit from its application only on motion of the government, and

only if the Attorney General has authorized the early disposition program in the

district. In this case, no motion was made by the government, and, indeed, it could

not have done so in the United States District Court for the Southern District of

Georgia, because neither the Attorney General nor the United States Attorney had

provided for early disposition in that district. Plainly, Congress contemplated that

discrepancies would arise because it structured the law the way it did. Here, the

district court relied on an impermissible factor in sentencing outside the Guidelines

range precisely because Congress limited the application of USSG § 5K3.1.

Moreover, even if we were to accept the judge’s premise that it would have been

unfair to treat Arevalo-Juarez differently from similarly situated defendants in

other districts, that argument fails. The PROTECT Act provides that the benefits of

early disposition should only be available where federal prosecutors have

authorized early disposition programs, and Arevalo-Juarez’s case does not fit the

category of cases in which federal prosecutors have decided to permit early

disposition programs -- cases involving nonviolent offenders where, among other

things, the defendant has waived the right to appeal or to seek collateral relief.

Accordingly, we are constrained to vacate the sentence and remand for further

11
proceedings consistent with this opinion.3

VACATED AND REMANDED.

3
We offer no opinion on whether a sentence of 30 months could be reasonable in this
case based on other considerations. We only hold that it was impermissible to use the disparities
created by USSG § 5K3.1 as the basis for imposing a sentence of 30 months.

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WILSON, Circuit Judge, Concurring:

As the majority correctly points out, a sentencing court may not rely solely

on a sentencing disparity created by the “fast-track” provision of the Sentencing

Guidelines, U.S.S.G. § 5K3.1, in order to support a downward departure from the

advisory guidelines range. I concur with this judgment based on our recent

precedent United States v. Anaya Castro, 455 F.3d 1249 (11th Cir. 2006) (per

curiam). In Anaya Castro we concluded that “[a]ny disparity created by section

5K3.1 does not fall within the scope of section 3553(a)(6).” Id. at 1252.

While Anaya Castro did not address the precise issue presented in this case,

its reasoning controls the outcome here. In Anaya Castro, an appeal by a criminal

defendant, we determined that a sentencing judge was not required to apply a

downward departure based on a fast-track disparity. Id. In this case, however, the

government appeals a downward departure from the advisory guidelines, arguing

that the sentencing judge was not permitted to consider a fast-track disparity into

consideration in issuing a below-guidelines sentence. In spite of the different

posture of this appeal, because we reasoned in Anaya Castro that “Congress

implicitly determined that the disparity [created by the fast-track sentencing

program] was warranted,” we hold today that a sentencing court is not permitted to

downward depart from the advisory guidelines solely on the basis of a disparity

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created by section 5K3.1. Id.

I write separately to emphasize that we make no determination as to whether

Arevalo-Juarez’s thirty-month sentence is reasonable in this case. After Booker,

the ultimate determination in reviewing a sentence on appeal is reasonableness.

United States v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 765, 160 L. Ed.2d 621

(2005); United States v. Winingear, 422 F.3d 1241, 1244-45 (11th Cir. 2005).

Sentencing courts are free to depart from the advisory guidelines range so long as

the sentence is reasonable based on a “proper consideration” of the section 3553(a)

factors. United States v. Eura, 440 F.3d 625, 637 (4 th Cir. 2006) (Michael, J.,

concurring) (emphasis in original). Here we make no determination as to the

reasonableness of Arevalo-Juarez’s sentence, rather we find that the trial court

based the sentence on an improper consideration by downward departing solely on

the basis of the fast-track disparity.

On remand, the district court has the discretion to determine “[w]hether [the

defendant] deserves a sentence below the advisory guideline range based on other

factors.” United States v. Galicia-Cardenas, 443 F.3d 553, 555 (7th Cir. 2006) (per

curiam). To support a downward departure in this instance, the “sentencing court

must identify the individual aspects of the defendant’s case that fit within the

factors listed in 18 U.S.C. § 3553(a), and in reliance on those findings, impose a

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non-guidelines sentence that is reasonable.” Eura, 440 F.3d at 634.

We have said that we will only reverse a sentence and remand for

resentencing upon a finding of harmful error. United States v. Nealy, 232 F.3d 825,

829 (11th Cir. 2000). We affirm for harmless error in the sentencing context if we

find that the sentencing court would have likely sentenced the defendant in the

same way absent the error. United States v. Williams, 456 F. 3d. 1353, 1360 (11th

Cir. 2006). The problem for Arevalo-Juarez is that we cannot conclude that the

error was harmless because the lack of a fast-track program was the sole reason

given by the district court to support the below-guidelines sentence.

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