United States v. Lopez-Macias

• Decision Date: 07 November 2011
• Docket Number: No. 10–1494.,10–1494.
• Citation: 661 F.3d 485
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Martin LOPEZ–MACIAS, a/k/a Martin Macias–Lopez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

661 F.3d 485

UNITED STATES of America, Plaintiff–Appellee,

v.Martin LOPEZ–MACIAS, a/k/a Martin Macias–Lopez, Defendant–Appellant.

No. 10–1494.

United States Court of Appeals, Tenth Circuit.

Nov. 7, 2011.

May Kim, Special Assistant United States Attorney (John F. Walsh, United States Attorney, Paul Farley, Assistant United States Attorney, on the brief), Denver, CO, for Plaintiff–Appellee.

John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the brief), Denver, CO, for Defendant–Appellant.

Before MURPHY, BALDOCK, and SILER,^* Circuit Judges.BALDOCK, Circuit Judge.

In the 1990s, federal prosecutors handling large numbers of illegal re-entry and other immigration offenses developed early disposition or “fast-track” programs in states along the United States border with Mexico. In 2003, Congress endorsed such programs, apparently for border districts and elsewhere, in a broadly-worded provision of 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). Congress specifically instructed the United States 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.” Pub.L. No. 108–21, § 401(m), 117 Stat. at 675. In response, the Sentencing Commission promulgated U.S.S.G. § 5K3.1: “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] and the United States Attorney for the district in which the court resides.”

This sentencing appeal presents us with two questions related to the presence of fast-track programs in some federal districts, but not others. The first question is whether a sentencing court in a non-fast-track district has the discretion to consider sentence disparities caused by the existence of fast-track programs in other districts, and, based thereon, vary from the applicable guideline range for a defendant charged with an immigration offense. If so, the second issue is whether the apparently nebulous eligibility requirements for fast-track programs relieve a defendant charged with an immigration offense in a non-fast-track district of the burden of showing entitlement, at least in some sense, to sentencing consistent with a fast-track program. We hold that (1) where the circumstances warrant, a district court in a non-fast-track district has the discretion to vary from a defendant's applicable guideline range based on fast-track sentence disparities, but (2) a defendant bears the initial burden of showing entitlement, in some sense, to a variance based on fast-track sentence disparities. Given the facts presented here, however, we need not now decide the precise extent of a defendant's burden.

I.

Following a routine traffic stop, Colorado law enforcement officials arrested Defendant Martin Lopez–Macias, a citizen of Mexico, on suspicion of marijuana trafficking. Immigration and Customs Enforcement officials interviewed Defendant while he was in Colorado custody and determined his illegal status. A federal grand jury subsequently indicted Defendant in the District of Colorado for illegal reentry into the United States after deportation following an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). In 1993, a California state court convicted Defendant for selling a controlled substance, heroin, which qualifies as an aggravated felony pursuant to 8 U.S.C. § 1101(43).

Defendant and the Government entered into a plea agreement. Defendant agreed to plead guilty to the crime as charged in the indictment and the Government agreed to recommend a three-point reduction of offense level for acceptance of responsibility. The parties also agreed that the provisions of 18 U.S.C. § 3553 governed the district court's consideration of Defendant's sentence. Subsection (a) lists numerous factors that a district court must consider in imposing a sentence that is “sufficient, but not greater than necessary” to comply with the enumerated sentencing purposes. Among those factors is “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” ¹ 18 U.S.C. § 3553(a)(6). After his plea hearing, Defendant filed a “Motion for Non–Guideline Statutory Sentence,” in which he requested a sentence of time served. Defendant argued that U.S.S.G. § 5K3.1 created unwarranted sentence disparities within the meaning of subsection (a)(6) between defendants convicted of immigration offenses in non-fast-track districts, like himself, and defendants convicted of similar offenses in fast-track districts.

The district court denied Defendant's motion to vary from the recommended guideline sentence on alternative grounds. First, the court relied on our holding in United States v. Martinez–Trujillo, 468 F.3d 1266 (10th Cir.2006), to deny Defendant's motion. In Martinez–Trujillo, we held as a matter of law that sentence disparities created by fast-track programs were not “unwarranted” within the meaning of § 3553(a)(6). In the alternative, the district court denied Defendant's motion because he failed to present any evidence that he would be eligible for a fast-track program in a participating district. Based upon a finding that Defendant's recommended guideline range was “sufficient, but not greater than necessary,” to achieve § 3553(a)'s sentencing objectives, the district court sentenced Defendant to 37 months imprisonment, the low end of the range.² Defendant appealed. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a)(2), and uphold Defendant's sentence for reasons that follow.

II.

On appeal, Defendant claims his sentence is unreasonable because the district court erred in refusing to consider, as a matter of fact, whether sentence disparities between himself and defendants sentenced for immigration offenses under fast-track programs were “unwarranted” within the meaning of § 3553(a)(6). To support his claim, Defendant posits two arguments. First, Defendant argues that, given intervening Supreme Court precedent, our decision in Martinez–Trujillo is no longer viable and a district court now has the discretion to vary from the guidelines based on fast-track sentence disparities. Second, Defendant argues that because the Government shields the qualifications for fast-track disposition from defendants in non-fast-track districts, the Government should bear the burden of proving he is ineligible for a variance based on fast-track sentence disparities.

We ultimately review Defendant's sentence for reasonableness, deferring to the district court under the “familiar abuse-of-discretion standard of review.” Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Reasonableness “has a procedural and substantive component.” United States v. Martinez, 610 F.3d 1216, 1223 (10th Cir.2010). Procedural error includes “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586 (emphasis added). On the other hand, “[a] challenge to the sufficiency of the § 3553(a) justifications relied on by the district court implicates the substantive reasonableness of the resulting sentence.” ³ United States v. Smart, 518 F.3d 800, 804 (10th Cir.2008). In this case, we review Defendant's sentence for procedural error because Defendant challenges the “method by which the sentence [was] calculated.” United States v. Wittig, 528 F.3d 1280, 1284 (10th Cir.2008). That is to say, Defendant challenges the district court's failure in the context of his case to even consider whether a sentence disparity caused by the existence of fast-track programs in some districts but not others is factually “unwarranted.” We review the district court's legal conclusions in this regard de novo and its factual findings for clear error. United States v. Munoz–Nava, 524 F.3d 1137, 1146 (10th Cir.2008).

A.

The district court first denied Defendant's motion for a variance because we have “held repeatedly that the disparity created by the existence of ‘fast track’ programs in other districts is not an unwarranted disparity within the meaning of [§ ] 3553(a)(6).” Record volume (Rec.vol.) II, at 54. The district court's assessment of Tenth Circuit case law undoubtedly is correct. In Martinez–Trujillo, we held as a matter of law that sentencing disparities caused by the existence of fast-track programs in some districts were not “unwarranted” under § 3553(a)(6), because such disparities were congressionally authorized. Martinez–Trujillo, 468 F.3d at 1268. We recognized that a district court must consider the entirety of the § 3553(a) factors, including factor (a)(6) regarding unwarranted sentence disparities, in imposing sentence, but opined that a disparity is not unwarranted where Congress specifically authorizes the disparity, such as the fast-track disparity in the PROTECT Act. Id.; accord United States v. Jarrillo–Luna, 478 F.3d 1226, 1231 (10th Cir.2007); United States v. Martinez–Macias, 472 F.3d 1216, 1219 (10th Cir.2007). Of course, Martinez–Trujillo and its progeny bind us “absent en banc reconsideration or a superseding contrary decision by the Supreme Court.” United States v. Killion, 7 F.3d 927, 930 (10th Cir.1993).

Defendant submits that Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), is that “superseding contrary decision.” In Kimbrough, a case...