Opinion

United States v. Jose Lopez

650 F.3d 952
2011 WL 2409306

Court: Court of Appeals for the Third Circuit
Filed: Jun 16, 2011
Status: Published
Author: Fisher
On the bench: Fisher, Jordan, Cowen
Cited by: 26 cases
Authority: More cited than 81.7%

holding that a district court need not disregard a Guidelines provision with which it disagrees and an appellate court only examines whether the sentence is reasonable in light of the sentencing factors

How later courts described this case

holding that a district court need not disregard a Guidelines provision with which it disagrees and an appellate court only examines whether the sentence is reasonable in light of the sentencing factors
concluding that illegal reentry guideline was properly adopted by Commission
rejecting similar Section 2L1.2 challenge and noting that, even where policy arguments have been found valid, rejection of Guidelines range is not required when court does not, in fact, have a disagreement with the Guideline at issue
holding that § 2L1.2 is not unreasonable and that "District Courts [are] not required to disregard § 2L1.2[] when they [do] not disagree with it"

Written by the judges who cited it.

The opinion

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 10-1833

______

UNITED STATES OF AMERICA

JOSE J. LOPEZ,

a/k/a

JOSE LOPEZ-JIMENEZ

Jose J. Lopez,

Appellant

______

No. 10-2415

______

UNITED STATES OF AMERICA

PEDRO ESPARZA-DIAZ,

also known as JUAN DIAZ OSEGERA,

also known as JUAN ESPARZA-DIAZ,

also known as JUAN TRUJILLO,

also known as JUAN SANCHEZ

Pedro Esparza-Diaz,

Appellant

______

No. 10-2518

______

UNITED STATES OF AMERICA

PEDRO MANUEL ARRELUCEA-ZAMUDIO,

Appellant

______

No. 10-2519

______

UNITED STATES OF AMERICA

SILVESTRE BRITO-HERNANDEZ,

Appellant

______

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Nos. 3-09-cr-00623-001, 1-09-cr-00449-001,

1-08-cr-00136-001 and 1-08-cr-00711-001)

District Judges: Honorable Garrett E. Brown,

Honorable Robert B. Kugler and Honorable Renee M. Bumb

______

Argued April 15, 2011

Before: FISHER, JORDAN and COWEN, Circuit Judges.

(Filed: June 16, 2011 )

Lisa Van Hoeck

Office of Federal Public Defender

22 South Clinton Avenue

Station Plaza #4, 4th Floor

Trenton, NJ 08609

Counsel for Appellant,

Jose J. Lopez

Lisa E. Lewis (Argued)

Office of Federal Public Defender

800-840 Cooper Street, Suite 350

Camden, NJ 08102

Counsel for Appellant,

Pedro Esparza-Diaz

Maggie F. Moy

Office of Federal Public Defender

800-840 Cooper Street, Suite 350

Camden, NJ 08102

Counsel for Appellants,

Pedro Manuel Arrelucea-Zamudio

and Silvestre Brito-Hernandez

Jennifer H. Chin

Mark E. Coyne

Caroline A. Sadlowski (Argued)

Steven G. Sanders

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

Counsel for Appellee

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

In these consolidated appeals, Jose Lopez, Pedro

Esparza-Diaz, Pedro Arrelucea-Zamudio, and Silvestre Brito-

Hernandez (“Appellants”) challenge the constitutionality and

reasonableness of the sentences they received after pleading

guilty to illegal reentry, in violation of 8 U.S.C. § 1326(a) and

(b)(2).1 Appellants claim that their Fifth Amendment rights

were violated as a result of the Department of Justice‟s

(“DOJ”) implementation of “fast-track” early disposition

programs in select judicial districts. Section 5K3.1 of the

United States Sentencing Guidelines (“U.S.S.G.”) permits a

district court to depart not more than four levels pursuant to

an early disposition program authorized by the Attorney

General for the particular district. In districts where fast-track

programs are in place, qualifying defendants have the option

to plead guilty immediately, in exchange for the

Government‟s filing of a motion to depart pursuant to

U.S.S.G. § 5K3.1. None of the districts within the Third

Circuit have a fast-track program.

Although Appellants acknowledge that fast-track

programs are defensible in districts with a high volume of

immigration cases, such as districts along the southwest

border of the United States, they challenge the reasoning

behind authorizing these programs in districts with a low

volume of immigration cases and in non-border districts.

Appellants maintain that fast-track programs have been

approved in an arbitrary manner, creating a disparity among

similarly situated defendants that violates their Fifth

Amendment right to equal protection. Additionally,

By order of the Clerk on December 22, 2010, we

granted the Government‟s motion to consolidate these appeals

for purposes of disposition. In addressing the constitutional

argument, we refer to Appellants collectively. We describe

their individual arguments only insofar as necessary to

highlight the distinctions in their bases for appeal.

Appellants challenge the reasonableness of their sentences.

We determine that the DOJ‟s implementation of fast-track

programs is rationally related to several legitimate

governmental interests and does not violate Appellants‟ Fifth

Amendment rights. Further, the sentences imposed were

procedurally and substantively reasonable. We will affirm

the judgments of sentence entered by each District Court.

I. Background

Fast-track programs were initially established in the

mid-1990s in federal judicial districts along the border

between the United States and Mexico – in Texas, New

Mexico, Arizona, and California. Faced with an influx of

immigration cases, local United States Attorneys sought to

manage their caseloads by offering shorter sentences, in the

form of a motion for downward departure or some other

benefit, in exchange for the defendant‟s agreement to plead

guilty immediately and waive appellate and other rights. See

generally Jane L. McClellan & Jon M. Sands, Federal

Sentencing Guidelines and the Policy Paradox of Early

Disposition Programs: A Primer on “Fast-Track” Sentences,

38 Ariz. St. L. J. 517 (2006).

In 2003, Congress explicitly authorized downward

departures in fast-track programs when it passed the

Prosecutorial Remedies and Other Tools to end the

Exploitation of Children Today Act (“PROTECT Act”), Pub.

L. No. 108-21, 117 Stat. 650 (2003). The PROTECT Act

“was part of a more general effort by Congress to deal with a

perceived increase in the rate of departures from the

Sentencing Guidelines.” United States v. Arrelucea-Zamudio,

581 F.3d 142, 145 (3d Cir. 2009). As such, Congress directed

the Sentencing Commission to “promulgate . . . 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), 117 Stat. at 675. In

response, the Sentencing Commission created U.S.S.G.

§ 5K3.1, which states that, “[u]pon 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.”

Following passage of the PROTECT Act, the Attorney

General issued a memorandum to all federal prosecutors

discussing the authorization and administration of fast-track

programs. See Memorandum from John Ashcroft, Att‟y

Gen., Dep‟t of Justice, to U.S. Attorneys (Sept. 22, 2003),

reprinted in 16 Fed. Sent. R. 134 (Dec. 2003) (“Ashcroft

Memo”).2 While the Ashcroft Memo highlighted the need for

The Ashcroft Memo set forth the following

requirements for a district to obtain a fast-track program:

(A)(1) the district confronts an exceptionally

large number of a specific class of offenses

within the district, and failure to handle such

cases on an expedited or “fast-track” basis

would significantly strain prosecutorial and

judicial resources available in the district; or

(2) the district confronts some other exceptional

fast-track programs in districts with a high volume of

immigration cases, it also made clear that “there may be some

other exceptional local circumstance, other than the high

incidence of a particular type of offense, that could

conceivably warrant „fast-track‟ treatment.” Id. at 135. As of

December 28, 2009, the Attorney General has approved

twenty-five fast-track programs in seventeen judicial

districts.3 Fourteen fast-track programs are authorized for

local circumstance with respect to a specific

class of cases that justifies expedited disposition

of such cases;

(B) declination of such cases in favor of state

prosecution is either unavailable or clearly

unwarranted;

that are highly repetitive and present

substantially similar fact scenarios; and

(D) the cases do not involve an offense that has

been designated by the Attorney General as a

“crime of violence.”

16 Fed. Sent. R. at 134-35.

Fast-track programs have been implemented for a

variety of classes of cases, including illegal reentry,

transportation or harboring of aliens, alien smuggling, drug

offenses, aggravated identity theft, and identification

document fraud. See Memorandum from David W. Ogden,

Deputy Att‟y Gen., Dep‟t of Justice, to U.S. Attorneys (Dec.

28, 2009) (Supp. App. for Appellee United States at 22-23.).

illegal reentry cases.4 The District of New Jersey does not

have any kind of fast-track program. Appellants‟

constitutional argument concerns the disparity in treatment

between defendants in fast-track districts and defendants in

non-fast-track districts, insofar as defendants in fast-track

districts are eligible to obtain a downward departure as

authorized in U.S.S.G. § 5K3.1, whereas defendants in non-

fast-track districts are not afforded this opportunity.

A. Jose Lopez

Jose Lopez is a native and citizen of Mexico. In 1994,

he was convicted in New Jersey Superior Court of aggravated

arson, and was subsequently deported to Mexico. Thereafter,

Lopez illegally reentered the United States and was arrested

in New Jersey in 2009. Lopez pled guilty to illegal reentry, in

violation of 8 U.S.C. § 1326(a) and (b)(2).5 The Probation

These programs are implemented in the District of

Arizona; the Central, Eastern, and Northern Districts of

California; the District of Idaho; the District of Nebraska; the

District of New Mexico; the District of Oregon; the District

of Puerto Rico; the Southern District of Texas; the District of

Utah; the Eastern and Western Districts of Washington; and

the District of Wyoming.

8 U.S.C. § 1326(a) provides:

(a) In general

Subject to subsection (b) of this section, any

alien who - -

(1) has been denied admission, excluded,

deported, or removed or has departed the United

States while an order of exclusion, deportation,

or removal is outstanding, and thereafter

(2) enters, attempts to enter, or is at any time

found in, the United States, unless (A) prior to

his reembarkation at a place outside the United

States or his application for admission from

foreign contiguous territory, the Attorney

General has expressly consented to such alien‟s

reapplying for admission; or (B) with respect to

an alien previously denied admission and

removed, unless such alien shall establish that

he was not required to obtain such advance

consent under this chapter or any prior Act,

shall be fined under Title 18, or imprisoned not

more than 2 years, or both.

8 U.S.C. § 1326(b)(2) provides:

(b) Criminal penalties for reentry of certain

removed aliens notwithstanding subsection (a)

of this section, in the case of any alien described

in such subsection - -

(2) whose removal was subsequent to a

conviction for commission of an aggravated

felony, such alien shall be fined under such title,

imprisoned not more than 20 years, or both[.]

Office prepared a Presentence Investigation Report (“PSR”)

recommending a base offense level of eight, pursuant to

U.S.S.G. § 2L1.2(a), and a sixteen level increase, pursuant to

U.S.S.G. § 2L1.2(b)(1)(A) because Lopez was previously

deported after a conviction for a felony which is a crime of

violence, namely the 1994 arson. After subtracting three

levels for acceptance of responsibility, the PSR recommended

a total offense level of twenty-one and a criminal history

category of II, yielding a Guidelines range of forty-one to

fifty-one months‟ imprisonment.

Lopez argued that the District Court should vary from

the Guidelines range because the availability of fast-track

programs in some judicial districts but not others creates an

unfair disparity. The District Court refused to do so, and

sentenced Lopez to forty-one months‟ imprisonment. Lopez

filed a timely notice of appeal.

B. Pedro Esparza-Diaz

Pedro Esparza-Diaz is a native and citizen of Mexico.

In 1995, he was convicted in California Superior Court of a

felony drug offense and sentenced to three years‟ probation

and three months‟ imprisonment. In 1999, Esparza-Diaz was

again convicted of drug possession and sentenced to three

years‟ probation and nine months‟ imprisonment. His

probation was subsequently revoked in 2000, and he was

sentenced to sixteen months‟ imprisonment for the 1995

conviction and two years‟ imprisonment on the 1999

conviction, to be served concurrently. He was deported to

Mexico in 2001. Years later, he illegally returned to the

United States where he was arrested in New Jersey in 2009

for traffic violations. Thereafter, Esparza-Diaz pled guilty to

illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2).

The PSR recommended a base offense level of eight,

pursuant to U.S.S.G. § 2L1.2(a), plus a sixteen-level increase

pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because Esparza-Diaz

was previously deported after he was convicted of a drug

trafficking offense for which the sentence imposed exceeded

thirteen months‟ imprisonment.6 As a result, the total offense

level was twenty-one, after a three-level adjustment for

acceptance of responsibility. With a criminal history category

of IV, the PSR recommended a Guidelines range of fifty-

seven to seventy-one months‟ imprisonment.

At sentencing, Esparza-Diaz argued that the District

Court should vary from the Guidelines range based on the

absence of a fast-track program in the District of New Jersey.

The District Court declined to exercise that discretion and

also refused to vary based on the time that Esparza-Diaz spent

in custody awaiting indictment. Esparza-Diaz was sentenced

to sixty months‟ imprisonment and filed a timely notice of

appeal.

See U.S.S.G. § 2L1.2 cmt. n.1(B)(vii) (“The length of

the sentence of imprisonment includes any term of

imprisonment given upon revocation of probation, parole, or

supervised release.”).

C. Pedro Arrelucea-Zamudio

Pedro Arrelucea-Zamudio is a native and citizen of

Peru. In 1991, he was convicted in New Jersey Superior

Court of drug possession and sentenced to twelve years‟

imprisonment. In 1995, Arrelucea-Zamudio was deported to

Peru. Years later, he illegally reentered the United States. In

2006, he was convicted in New Jersey Superior Court of

possession of cocaine with intent to distribute. After serving

a portion of the prison sentence, he was charged with and

pled guilty to illegal reentry, in violation of 8 U.S.C.

§ 1326(a) and (b)(2).

The PSR recommended a base offense level of eight,

in accordance with U.S.S.G. § 2L1.2(a), and a sixteen-level

increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because

Arrelucea-Zamudio was previously deported after being

convicted of a drug trafficking offense for which the sentence

imposed exceeded thirteen months‟ imprisonment. With a

three-level adjustment for acceptance of responsibility, the

total offense level was twenty-one and the criminal history

category was III, resulting in a Guidelines range of forty-six

to fifty-seven months‟ imprisonment.

At sentencing, Arrelucea-Zamudio requested a

variance on the grounds that the absence of a fast-track

program in the District of New Jersey caused a disparity

among similarly situated defendants. The District Court

rejected this argument, believing that our decision in United

States v. Vargas, 477 F.3d 94 (3d Cir. 2007), prohibited

consideration of the fast-track disparity. The District Court

imposed a sentence of forty-eight months‟ imprisonment.

On appeal, we vacated Arrelucea-Zamudio‟s sentence

because the District Court misapprehended its authority to

consider the fast-track disparity. See Arrelucea-Zamudio, 581

F.3d at 143 (holding that after the Supreme Court‟s decision

in Kimbrough v. United States, 552 U.S. 85 (2007), a district

court has discretion to consider the absence of a fast-track

sentencing option and vary on that basis). On remand,

Arrelucea-Zamudio argued that the sixteen-level

enhancement for illegal reentry set forth at U.S.S.G.

§ 2L1.2(b)(1)(A) is inherently unreasonable. Additionally, he

renewed his argument that the District Court should vary on

the basis of the fast-track disparity. The District Court

considered the arguments relative to § 2L1.2 and the fast-

track disparity, but declined to vary on either basis. The

District Court imposed a sentence of forty-six months‟

imprisonment and Arrelucea-Zamudio filed a timely notice of

appeal.

D. Silvestre Brito-Hernandez

Silvestre Brito-Hernandez is a native and citizen of the

Dominican Republic. He entered the United States as a

lawful permanent resident in 1990. In 1999, he was

convicted of possession of cocaine with intent to distribute,

and deported to the Dominican Republic. Brito-Hernandez

illegally reentered the United States in 2003. Shortly

thereafter, he was arrested, pled guilty, and was sentenced to

five years‟ imprisonment for drug possession. While serving

his state prison sentence, he was indicted and pled guilty to

illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2).

The PSR recommended a base offense level of eight,

as set forth in U.S.S.G. § 2L1.2(a), and a sixteen-level

increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because

Brito-Hernandez was previously deported after being

convicted for a felony drug trafficking offense for which the

sentence imposed exceeded thirteen months‟ imprisonment.

With a three-level adjustment for acceptance of

responsibility, the total offense level was twenty-one and the

criminal history category was III, generating a Guidelines

range of forty-six to fifty-seven months‟ imprisonment.

During the sentencing hearing, Brito-Hernandez

requested a variance on the basis that the sixteen-level

enhancement to the offense level set forth at U.S.S.G.

§ 2L1.2(b)(1)(A) was unreasonable and that the fast-track

system created an unfair sentencing disparity between

similarly situated defendants. The District Court rejected

these arguments and sentenced him to forty-six months‟

imprisonment.

On January 5, 2010, we summarily vacated Brito-

Hernandez‟s sentenced, as a result of our ruling in Arrelucea-

Zamudio, because, as in that case, the District Court did not

believe it had discretion to vary based on the fast-track

disparity argument. On remand, Brito-Hernandez renewed

his arguments with respect to U.S.S.G. § 2L1.2 and the fast-

track disparity. The District Court declined to exercise its

discretion to vary, and imposed a sentence of forty-six

months‟ imprisonment. Brito-Hernandez filed a timely notice

of appeal.

II. Standard of Review

While we generally review constitutional claims de

novo, see United States v. Gordon, 290 F.3d 539, 546 (3d Cir.

2002), constitutional challenges not raised before the district

court are subject to plain error review. See Fed. R. Crim. P.

52(b); see also United States v. Olano, 507 U.S. 725, 731

(1993). We review sentences for procedural and substantive

reasonableness under an abuse-of-discretion standard. Gall v.

United States, 552 U.S. 38, 51 (2007). In addition, we

“review factual findings relevant to the Guidelines for clear

error.” United States v. Grier, 475 F.3d 556, 570 (3d Cir.

2007) (en banc).7

The District Court had jurisdiction under 18 U.S.C.

§ 3231. We have appellate jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742.

The government claims that Appellants lack standing

to challenge the constitutionality of U.S.S.G. § 5K3.1, as

implemented by the DOJ and directed by Congress in the

PROTECT Act. We must resolve this question at the outset

because Appellants‟ ability to raise this constitutional

challenge implicates our jurisdiction under Article III of the

Constitution. See Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 97-98 (1998). “A party has standing to challenge the

constitutionality of a statute only insofar as it has an adverse

impact on his own rights.” Count Court of Ulster County,

N.Y. v. Allen, 442 U.S. 140, 154-55 (1979). Appellants must

demonstrate that they “have suffered an injury in fact” that is

“fairly trace[ab]le to the challenged action of the defendant,”

III. Discussion

and that it is likely “that the injury will be redressed by a

favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992) (internal quotation marks omitted).

Appellants have alleged that they received sentences

without the benefit of a fast-track departure, thereby

subjecting them to a sentencing process that was implemented

in an arbitrary manner and contrary to their Fifth Amendment

rights. This injury is concrete and actual, as Appellants have

already been sentenced. See Chapman v. United States, 500

U.S. 453, 465 (1991) (“[T]he court may impose, whatever

punishment is authorized by statute . . . so long as the penalty

is not based on an arbitrary distinction that would violate the

Due Process Clause of the Fifth Amendment.” (internal

citations omitted)); see also Ne. Fl. Chapter of the Assoc.

Gen. Contractors of Am. v. City of Jacksonville, 508 U.S.

656, 666 (1993) (“The „injury in fact‟ in an equal protection

case . . . is the denial of equal treatment resulting from the

imposition of the barrier, not the ultimate inability to obtain

the benefit.”). Second, this injury is “fairly trace[ab]le” to the

DOJ‟s implementation of fast-track programs in some

districts but not others. Lujan, 504 U.S. at 560. Third, the

injury is redressable because a favorable ruling that the

operation of the fast-track program is unconstitutional would

essentially require a district court to depart four levels, as

done in fast-track districts, thereby eliminating the alleged

unfairness. Because Appellants have standing, we proceed

with our analysis of their Fifth Amendment claim.

A. Constitutionality of the DOJ’s Implementation of

U.S.S.G. § 5K3.1

Appellants assert that the fast-track program “produces

a „wholly arbitrary‟ sentencing discrepancy and violates

[their] Fifth Amendment right to be free from arbitrary

sentencing practices.” (Br. of Appellant Jose Lopez at 14.)

Because the distinction in treatment between defendants in

fast-track and non-fast-track judicial districts does not

implicate a suspect class, nor burden a fundamental right, we

determine – and Appellants concede (id. at 11) – that rational

basis review is appropriate here.8 “If a statute neither burdens

a fundamental right nor targets a suspect class, it does not

violate equal protection so long as it bears a rational

relationship to some legitimate end.” Doe v. Pa. Bd. of

Probation & Parole, 513 F.3d 95, 107 (3d Cir. 2008). Under

rational basis review, a classification will be upheld “if there

is a rational relationship between the disparity of treatment

and some legitimate governmental purpose.” Heller v. Doe,

509 U.S. 312, 320 (1993). The party challenging the

Although the Fifth Amendment by its own terms

does not reference equal protection, the Supreme Court has

interpreted it to include an equal protection element. See

Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Because the

Supreme Court‟s analysis of Fifth Amendment equal

protection claims has been identical to equal protection

claims under the Fourteenth Amendment, we proceed

accordingly here. See Buckley v. Valeo, 424 U.S. 1, 93

(1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2

(1975).

classification bears the burden to negate “every conceivable

basis which might support it[.]” Id. At oral argument,

Appellants conceded that they did not raise this constitutional

claim before the District Court. Thus, we apply plain error

review. See Olano, 507 U.S. at 731. “Plain error exists only

when (1) an error was committed (2) that was plain, and

(3) that affected the defendant‟s substantial rights.” United

States v. Lessner, 498 F.3d 185, 192 (3d Cir. 2007).

Every court of appeals to have considered the issue has

upheld the DOJ‟s implementation of fast-track programs on a

district-by-district basis under rational basis review. See

United States v. Rodriguez, 523 F.3d 519, 527 (5th Cir.

2008); United States v. Lopez-Velasquez, 526 F.3d 804, 808

(5th Cir. 2008); United States v. Llanos-Agostadero, 486 F.3d

1194, 1199 (11th Cir. 2007); United States v. Andujar-Arias,

507 F.3d 734, 749 (1st Cir. 2007), abrogated on other

grounds by United States v. Rodriguez, 527 F.3d 221 (1st Cir.

2008); United States v. Marcial-Santiago, 447 F.3d 715, 719

(9th Cir. 2006); United States v. Campos-Diaz, 472 F.3d

1278, 1280 (11th Cir. 2006); United States v. Melendez-

Torres, 420 F.3d 45, 53 (1st Cir. 2005), abrogated on other

grounds by United States v. Anonymous Defendant, 629 F.3d

68 (1st Cir. 2010).

These courts of appeals have identified a number of

rational bases for the difference in treatment of defendants in

fast-track and non-fast-track districts. In Marcial-Santiago,

the Ninth Circuit upheld the fast-track program against an

equal protection challenge, ruling that “the government has a

legitimate interest in conserving prosecutorial and judicial

resources in districts with large numbers of immigration

cases, and fast-track programs are rationally related to that

interest.” 447 F.3d at 719. Similarly, the Fifth Circuit

determined that “[t]he current structure of the fast-track

program is rationally related to, among others, the goals of

promoting judicial efficiency, preserving prosecutorial

discretion, and limiting downward departures overall.”

Lopez-Velasquez, 526 F.3d at 808. The Eleventh Circuit has

reached the same conclusion. See Campos-Diaz, 472 F.3d at

1280 (“The fast-track program is rationally related to the

legitimate government interest of conserving prosecutorial

and judicial resources and easing congestion in judicial

districts with a high volume of immigration cases.”).

Decisions of the First Circuit are in accord. See Andujar-

Arias, 507 F.3d at 749 (“[W]e find that [fast-track] programs

have not been implemented in a manner that is so attenuated

as to render the [Congressionally established] distinction

arbitrary or irrational.” (internal quotation marks omitted));

Melendez-Torres, 420 F.3d at 53 (noting that prosecutorial

discretion and resource allocation constitute “a reasonably

conceivable set of facts that could provide a rational basis for

the classification” (internal quotation marks omitted)).

Appellants concede that there is a rational basis for

establishing fast-track programs in judicial districts with a

high volume of immigration cases. (Br. of Appellant Jose

Lopez at 10.) The crux of their claim, however, targets the

implementation of fast-track programs in districts with a low

volume of immigration cases – namely, in the Western

District of Washington and the District of Nebraska.

Appellants rely on the volume of immigration-related cases

per district and the number of immigration-related cases per

Assistant United States Attorney to argue that the DOJ‟s

approval of fast-track programs lacks a rational basis.

Specifically, Appellants point to statistics demonstrating that

immigration offenses compose only 12.3% and 13.2% of the

criminal docket in the District of Nebraska and the Western

District of Washington, respectively. (Id. at 11.) Moreover,

they highlight that immigration cases make up 26.6% of the

criminal docket in the District of Nevada, yet that district has

no fast-track program. (Id. at 12.) Appellants argue that the

fact that the District of Nebraska and the Western District of

Washington have fast-track programs, while no such program

is in place in the District of Nevada, demonstrates that the

DOJ has implemented fast-track programs in an

unconstitutional manner. We are not persuaded.

The Ashcroft Memo makes clear that the presence of a

high volume of immigration cases is not the only reason to

authorize a fast-track program. Rather, fast-track programs

may be sanctioned when “the district confronts some other

exceptional local circumstance with respect to a specific class

of cases that justifies expedited disposition of such cases.” 16

Fed. Sent. R. at 134. Even where a district does not confront

a high volume of immigration cases, the Ashcroft Memo

states that this “does not foreclose the possibility that there

may be some other exceptional local circumstances, other

than the high incidence of a particular type of offense, that

could conceivably warrant „fast-track‟ treatment.” Id. To

that end, we determine that the endorsement of fast-track

programs in districts with a low volume of immigration cases

is rationally related to, among other things, the purposes of

efficiently prosecuting illegal reentry cases and dealing with

demands regarding allocation of prosecutorial resources. If a

particular district is ill-equipped to handle illegal reentry

prosecutions due to, for example, an influx of cases or a

recurring type of case, a fast-track program will enable that

district to manage its caseload efficiently. The fact that some

districts with a high volume of immigration cases do not have

fast-track programs does not mean that the program is

operated in an unconstitutional manner. Those districts, such

as the District of Nevada, may be better prepared to prosecute

immigration cases and have no need for such a program. The

DOJ‟s implementation of the fast-track program is rationally

related to the objective of managing shortages in

prosecutorial resources and enforcing the immigration laws,

not only dealing with the challenge of a large volume of

immigration cases.

The First Circuit reached the same conclusion in

Andujar-Arias, 507 F.3d at 744-45. There, the defendant

argued that the existence of fast-track programs in districts

such as the Western District of Washington and the District of

Nebraska where immigration cases account for a low

percentage of the caseload demonstrated that the programs

were implemented in an unconstitutional manner. The court

refused to strike down the program based on statistics

regarding the number of cases alone. Notably, the court

reasoned that “[w]hen Congress authorized the Attorney

General to approve fast-track programs, it did not restrict the

criteria for such programs to the mere proportion of each

district‟s caseload” but instead “allowed the Attorney General

to evaluate such factors as the number and type of

immigration cases encountered by each district and the

quality and variety of resources each district could marshal in

response.” Id. at 744. We agree. Evaluating only the

percentage of immigration cases “obscures the fact that

different types of cases may require different types and

amounts of resources.” Id. This is because “judgments

regarding resource allocation can rarely be reduced to a single

variable or calculation.” Id. at 745. Appellants‟ statistical

references do not establish that fast-track programs are

administered unlawfully.

Appellants seize on language from our decision in

Arrelucea-Zamudio where we stated that “it does not appear

to be clear to the [Sentencing] Commission (based on its

limited statistical analysis), nor is it evident to us, why some

districts have fast-track programs while others do not.” 581

F.3d at 154. Thus, Appellants claim that “[a]n unidentifiable

basis for a sentencing discrepancy is not a rational one.” (Br.

of Appellant Pedro Arrelucea-Zamudio at 24.) Appellant‟s

reliance on Arrelucea-Zamudio is misplaced.9 In Arrelucea-

Zamudio, we held that a district court may consider the fast-

Further, this argument inappropriately attempts to

place the burden of proof on the government. See Heller v

Doe, 509 U.S. 312, 320 (1993) (“[T]he burden is on the one

attacking the legislative arrangement to negative every

conceivable basis which might support it” (internal quotation

marks and citation omitted).); see also United States v. Ruiz-

Chairz, 493 F.3d 1089, 1092 (9th Cir. 2007) (“[T]he

government shoulders no burden to proffer a basis for a

distinction that Congress and the Sentencing Commission

have made.”).

track disparity and exercise its discretion to vary from the

Guidelines range when sentencing a defendant for illegal

reentry. 581 F.3d at 143. The case did not involve a

constitutional challenge to the fast-track program, nor did we

hold that the DOJ‟s implementation of U.S.S.G. § 5K3.1

lacked a rational basis. Even if fast-track programs are not

authorized in an easily identifiable manner, it does not render

the DOJ‟s operation of such programs unconstitutional. To

the contrary, our inquiry is limited to evaluating whether

“there is any conceivable state of facts that could provide a

rational basis for the classification.” Heller, 509 U.S. at 320

(emphasis added). As we have already noted, the DOJ‟s

authorization of fast-track programs is rationally related to the

permissible goals of efficiently enforcing the immigration

laws and allocating prosecutorial resources where they are

most needed.

There are several justifiable reasons for allowing the

United States Attorney General and the United States

Attorney for each judicial district to evaluate the distribution

of prosecutorial resources in enforcing the immigration laws.

Appellants fall far short of their burden to demonstrate that

there is no conceivable basis for the DOJ‟s endorsement of

fast-track programs in some districts but not others. Having

identified no constitutional error, Appellants cannot

demonstrate that the District Courts committed plain error by

not striking down Congress‟s directive regarding

implementation of fast-track programs by the DOJ. See

United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006)

(noting that defendant could not establish plain error when no

court “has held that the limited availability of the fast-track

departure violates equal protection”). Thus, Appellants‟ Fifth

Amendment argument lacks merit.

B. Reasonableness of Sentences

Having determined that Appellants‟ Fifth Amendment

challenge to the DOJ‟s implementation of U.S.S.G. § 5K3.1

provides no basis for relief, we turn to Appellants‟ arguments

regarding the reasonableness of the sentences they received.

Our framework for reviewing sentences is well-established.

“First, we determine whether the sentencing court correctly

calculated the Guidelines range.” United States v. Fisher,

502 F.3d 293, 308 (3d Cir. 2007). “Next, we determine

whether the trial court considered the § 3553(a) factors and

any sentencing grounds properly raised by the parties which

have recognized legal merit and factual support in the

record.” Id. (internal quotation marks omitted). Then, “we

ascertain whether those factors were reasonably applied to the

circumstances of the case.” Id. (internal quotation marks

omitted). After confirming that the district court followed the

proper procedural requirements, “we review the resulting

sentence to ensure that it is substantively reasonable.” Id.

We will review each Appellant‟s sentence individually.

1. Jose Lopez

Lopez argues that the District Court committed

procedural error by refusing to give meaningful consideration

to the fast-track disparity. (Br. of Appellant Jose Lopez at 14-

15.) Specifically, Lopez insists that the District Court

“simply declined to accept the validity of the fast-track

disparity.” (Id. at 17.) We disagree.

In Arrelucea-Zamudio, we held that “a sentencing

judge has the discretion to consider a variance under the

totality of the § 3553(a) factors (rather than one factor in

isolation) on the basis of a defendant‟s fast-track argument,

and that such a variance would be reasonable in an

appropriate case.” 581 F.3d at 149. “In sentencing a

defendant for illegal reentry in a non-fast-track district . . . a

sentencing court „must make an individualized assessment

based on the facts presented,‟ and „judge their import under

§ 3553(a).‟” Id. at 166 (quoting Gall, 552 U.S. at 50-51). We

did not conclude that a district court must consider the fast-

track disparity and vary on that basis. Rather, we determined

that if a district court chooses to exercise its discretion

because it has a policy disagreement with U.S.S.G. § 5K3.1,

then it must evaluate the fast-track disparity with regard to the

totality of the § 3553(a) factors to ensure that the resulting

sentence will be reasonable. See id. In fact, we emphasized

that our previous holding in United States v. Vargas, 477 F.3d

94, 99 (3d Cir. 2007), “that it is not an abuse of a sentencing

judge‟s discretion to decline to vary on the basis of the fast-

track disparity – remains viable after Kimbrough.” Id. at 148.

The procedural error in Arrelucea-Zamudio was the district

court‟s mistaken belief that it did not have discretion to vary

based on the fast-track disparity. See id. at 149. That is not

what occurred here.

The District Court correctly calculated a Guidelines

range of forty-one to fifty-one months‟ imprisonment. At

sentencing, the District Court noted:

[L]ooking at the arguments that are made by the

defense which I referred to before, starting out

with the fact that some jurisdictions have a fast-

track program and that New Jersey does not, I

do not think that is an appropriate basis to

exercise my discretion under 3553[a] or

otherwise. Indeed, to do that would be to take

what seems to be a rather unique program and

make it nationwide. We have an obligation

really to avoid unwarranted disparities. I think

we‟d be creating unwarranted disparities . . . . I

do not think that the variance on the basis of a

lack of a fast-track program would be an

appropriate exercise of discretion here[.]

(App. of Appellant Jose Lopez at 38-39.) The District Court

acknowledged that it could vary based on the fast-track

disparity when it stated that it would not “exercise [its]

discretion,” (id.), on that basis. In doing so, it explained why

it believed a variance was inappropriate, even though it was

permitted, thereby meaningfully considering Lopez‟s request.

Lopez‟s argument on this point lacks merit.

Next, Lopez asserts that his sentence is procedurally

and substantively unreasonable because the District Court

ignored the need to “impose a sentence sufficient, but not

greater than necessary,” as stated in 18 U.S.C. § 3553(a).10

The record belies this contention. The District Court

specifically noted that “the sentence at the bottom of the

advisory guideline range is reasonable and no greater than

necessary to comply with the statutory purpose. We have a

serious offense that needs to be dealt with seriously.” (Id. at

41.) The District Court explicitly found that a Guidelines

range sentence was necessary, taking into consideration

Lopez‟s background. We cannot say that “no reasonable

sentencing court would have imposed the same sentence on

that particular defendant for the reasons the district court

provided.” United States v. Tomko, 562 F.3d 558, 568 (3d

Cir. 2009) (en banc). The District Court reasonably

concluded that a sufficient sentence in a fast-track district

In challenging the substantive reasonableness of

their sentences, each Appellant argues that his sentence is

unreasonable because the implementation of fast-track

programs in various judicial districts violates his Fifth

Amendment right to be free from arbitrary sentencing

practices. This argument recapitulates Appellants‟

unsuccessful constitutional argument, and we do not address

it further.

would not be sufficient in Lopez‟s case.11 Thus, we

determine that a sentence of forty-one months‟ imprisonment

is reasonable.

2. Pedro Esparza-Diaz

Esparza-Diaz asserts that the District Court committed

procedural error in relying on clearly erroneous factual

findings in denying his request for a variance to account for

the time he spent in custody awaiting indictment for illegal

reentry. “A district court commits significant procedural

error – and thus abuses its discretion – when . . . it bases its

To the extent Lopez argues that because “the district

court imposed a Guidelines sentence in a case

indistinguishable from the thousands across the country

which typically qualify for fast-track departures[,] . . . this

greater sentence . . . violat[es] parsimony” (Br. of Appellant

Jose Lopez at 21), we note that we specifically recognized in

Arrelucea-Zamudio that “a district court is under no

obligation to impose a sentence below the applicable

Guidelines range solely on the basis of the [fast-track

disparity].” 581 F.3d at 148 (internal quotation marks and

citation omitted); see also United States v. Llanos-

Agostadero, 486 F.3d 1194, 1199 (11th Cir. 2007) (“[W]e

cannot say that the sentences received by defendants in

districts without fast-track programs are „greater than

necessary‟ to achieve the purposes of § 3553(a)(2) solely

because similarly-situated defendants in districts with fast-

track programs are eligible to receive lesser sentences.”

(emphasis in original)).

calculation of the advisory Guidelines range on a clearly

erroneous finding of fact[.]” United States v. Starnes, 583

F.3d 196, 215 (3d Cir. 2009). In that regard, “[a] [factual]

finding is clearly erroneous when although there is evidence

to support it, the reviewing body on the entire evidence is left

with the definite and firm conviction that a mistake has been

committed.” Id. (internal quotation marks omitted).

Pursuant to 18 U.S.C. § 3585(b), “[a] defendant shall

be given credit toward the service of a term of imprisonment

for any time he has spent in official detention prior to the date

the sentence commences[.]” The definition of “official

detention” is provided in Bureau of Prisons Program

Statement 5880.28:

Official detention does not include time spent in

the custody of the U.S. Immigration and

Naturalization Service (INS) under the

provisions of 8 U.S.C. § 1252 pending a final

determination of deportability. An inmate

being held by INS being a civil deportation

proceeding is not being held in “official

detention” pending criminal charges.

BOP P.S. 5880.28, 1-15A. Esparza-Diaz was arrested for

traffic violations on February 12, 2009. An agent from

Immigration and Customs Enforcement (“ICE”) interviewed

him on February 20, 2009. On February 24, 2009, the ICE

Agent returned for another interview with Esparza-Diaz. In

the Record of Sworn Statement completed on that day, the

ICE Agent described the matter as “In the case of: Reentry

Prosecution 8 USC 1326 or 1325,” in other words, a criminal

illegal reentry prosecution. Esparza-Diaz was indicted on

June 16, 2009.

Before the District Court, Esparza-Diaz requested a

variance on the grounds that he should be given credit for the

time he spent in ICE custody from February 24 to June 16,

2009 because he was in “official detention” pending an illegal

reentry prosecution. The District Court declined to formally

grant the variance, finding that the Record of Sworn

Statement did not make certain that Esparza-Diaz would be

prosecuted for illegal reentry. The District Court noted that

while the individual ICE Agent‟s intent may have been clear,

any criminal prosecution would have to be approved by the

United States Attorney‟s Office. Although the District Court

did not grant the request, it did state that it was “not going to

give him the maximum under the guideline top of the range”

and that “defense counsel‟s arguments do have some merit,

particularly the fact that he‟s been in custody for months

before this prosecution began.” (App. of Appellant Pedro

Esparza-Diaz at 86.)

The District Court‟s finding that Esparza-Diaz was not

in “official detention” during this time period was not clearly

erroneous. Aside from the ICE Agent‟s statement, there is no

record from the government to indicate that a definitive

decision regarding criminal prosecution was made. Because

the record does not leave us with a “definite and firm

conviction that a mistake has been committed,” Starnes, 583

F.3d at 215, there is no clear error. Moreover, the record

reflects that the District Court did give some consideration to

Esparza-Diaz‟s argument because it sentenced him at the

bottom of the Guidelines range. The District Court correctly

calculated a Guidelines range of fifty-seven to seventy-one

months‟ imprisonment, and did not commit procedural error.

Like Lopez, Esparza-Diaz contends that his sentence is

substantively unreasonable because it violates the provision in

18 U.S.C. § 3553(a) instructing courts to impose a sentence

sufficient but not greater than necessary. At sentencing, the

District Court expressed the concern that a below-Guidelines

sentence would not be sufficient punishment after evaluating

the specific characteristics of Esparza-Diaz. Significantly, the

District Court noted that it had “the authority under the law to

vary downward because of [the fast-track disparity], but I

choose not to because of his criminal record and history.”

(App. of Appellant Pedro Esparza-Diaz at 85.) Thus, the

District Court exercised its discretion to impose a sentence it

believed was “sufficient, but not greater than necessary.” 18

U.S.C. § 3553(a). Because “the record as a whole reflects

rational and meaningful consideration of the factors

enumerated in 18 U.S.C. § 3553(a),” Grier, 475 F.3d at 571,

we determine that Esparza-Diaz‟s sentence was reasonable.12

3. Pedro Arrelucea-Zamudio & Silvestre Brito-

Hernandez13

Both Arrelucea-Zamudio and Brito-Hernandez

maintain that their sentences are substantively unreasonable