U.S. v. Sebastian, 05-2002.

• Decision Date: 06 February 2006
• Docket Number: No. 05-2002.,05-2002.
• Parties: UNITED STATES of America, Appellee, v. Antonio Alberto SEBASTIAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 913

436 F.3d 913

UNITED STATES of America, Appellee, v. Antonio Alberto SEBASTIAN, Appellant.

No. 05-2002.

United States Court of Appeals, Eighth Circuit.

Submitted: December 12, 2005.

Filed: February 6, 2006.

Caterina M. DiTraglia, Federal Public Defender, St. Louis, MO, for appellant.

John J. Ware, Asst. U.S. Attorney, St. Louis, MO, for appellee.

Before MELLOY, COLLOTON, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

Antonio Alberto Sebastian was convicted of illegal re-entry to the United States, in violation of 8 U.S.C. § 1326(a), and sentenced to 46 months' imprisonment. He appeals his sentence, and we affirm.

Sebastian is a citizen of Guatemala. While in the United States in 1998, he was convicted of child molestation in Georgia state court and sentenced to ten years' imprisonment. In October 1998, he was released from prison and deported.

Notwithstanding his deportation, Sebastian returned to the United States and repeatedly applied for, and received, Employment Authorization Documents. In 2003, he was deported a second time. In 2004, after applying to renew his Employment Authorization card, he was arrested and charged with illegal re-entry. He pled guilty, and a presentence investigation report ("PSR") was prepared. In calculating the advisory guideline range, see United States v. Booker, 543 U.S. 220, 125 S.Ct 738, 757, 160 L.Ed.2d 621 (2005), the PSR recommended a base offense level of 8, see USSG § 2L1.2(a), and an additional 16-level increase for re-entry after a conviction for a crime of violence, id. § 2L1.2(b)(1)(A). The PSR also recommended a three-level downward adjustment for acceptance of responsibility, see USSG § 3E1.1(a), (b), for a total offense level of 21. With a criminal history category III, the PSR calculated a guideline range of 46-57 months.

Sebastian objected to the 16-level enhancement and to the criminal history calculation. He also filed a sentencing memorandum arguing why a sentence within the advisory guideline range would not be appropriate in light of the sentencing factors outlined in 18 U.S.C. § 3553(a). The district court¹ considered Sebastian's objections, but found that the guideline range had been accurately calculated and that a sentence at the low end of the advisory range was reasonable in light of § 3553(a). The court thus imposed a sentence of 46 months.

On appeal, Sebastian does not dispute the district court's calculation of the advisory guideline range. He argues, however, that his sentence is unreasonable because the district court weighed the advisory guidelines too heavily and failed properly to consider the other factors set forth in § 3553(a). In particular, Sebastian asserts that the district court overlooked his alleged confusion about whether he was actually permitted to return to the United States, the disparity between his sentence and one that he would have received if he were sentenced in a district using "fast-track" procedures for immigration cases, and the fact that his conviction for child molestation was counted under the guidelines both for purposes of his offense level and his criminal history category.

We review the ultimate sentence imposed for unreasonableness, Booker, 125 S.Ct. at 765-66, and a properly calculated guidelines sentence is presumptively reasonable. See United States v. Tobacco, 428 F.3d 1148, 1151 (8th Cir.2005). Reasonableness review is "akin to abuse of discretion review," United States v. Rogers, 423 F.3d 823, 829 (8th Cir.2005) (internal quotation and ellipses omitted), and a guidelines sentence may nonetheless be unreasonable where a district court gives significant weight to an improper or irrelevant factor, fails to consider a factor that should have been given significant weight, or otherwise commits a clear error in judgment in weighing the sentencing factors. Tobacco, 428 F.3d at 1151.

Sebastian's most substantial argument is that the use of early disposition or "fast-track" programs for immigration cases in certain judicial districts creates unwarranted sentence disparities among defendants based only on the location in which an alien is apprehended. See USSG § 5K3.1. Because 18 U.S.C. § 3553(a)(6) requires the district court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," Sebastian argues that the more favorable treatment of aliens with similar records and similar offense conduct in judicial districts with fast-track programs makes it unreasonable to apply the advisory range to him.

In 2003, 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." Prosecutorial Remedies and Other Tools Against the Exploitation of Children Today ("PROTECT") Act, Pub.L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003). The directive apparently was motivated by the large volume of immigration cases presented for prosecution in certain judicial districts, and the perceived need for an administrative mechanism to permit more efficient processing of these cases. See 149 Cong. Rec. H2405, 2421 (daily ed. Mar. 27, 2003) (commentary to an amendment offered by Rep. Feeney). The Commission followed the congressional directive by adopting USSG § 5K3.1, concerning "Early Disposition Programs," which provides 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 and the United States Attorney for the district. Since then, the Attorney General has authorized such programs in several districts along the southwest and western borders of the United States, as well as in Nebraska and North Dakota, but not in Eastern Missouri. (Gov't App. at 8 n.3).

These early disposition programs do create sentence disparities among defendants with similar criminal records who commit similar offense conduct. The disparity is based solely on geography, and this has prompted complaints that "it is difficult to imagine a sentencing disparity less warranted than one which depends on the accident of the judicial district in which the defendant happens to be...