U.S. v. Arevalo-Juarez, 05-16313.

• Decision Date: 15 September 2006
• Docket Number: No. 05-16313.,05-16313.
• Citation: 464 F.3d 1246
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Noe AREVALO-JUAREZ, Defendant-Appellee.

464 F.3d 1246

UNITED STATES of America, Plaintiff-Appellant, v. Noe AREVALO-JUAREZ, Defendant-Appellee.

No. 05-16313.

United States Court of Appeals, Eleventh Circuit.

September 15, 2006.

Amy Lee Copeland, Robert M. Brennan, Savannah, GA, for U.S.

Robert J. Erb (Court-Appointed), Savannah, GA, for Defendant-Appellee.

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

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. 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 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).

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 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, 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, 543 U.S. 220, 125 S.Ct. 738, 767, 160 L.Ed.2d 621 (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, 456 F.3d 1353, 1361 (11th Cir.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 "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...