No: 06-1762 UNITED STATES OF AMERICA v. Melvin Villar

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 06-1762
UNITED STATES OF AMERICA
v.
MELVIN VILLAR,
Appellant
Appeal from the District Court of the
Virgin Islands, Division of St. Thomas
and St. John
(05-cr-00041)
District Judge: Hon. Curtis V. Gomez
Submitted pursuant to Third Circuit LAR 34.1(a)
December 4, 2006
Before: McKEE, BARRY, and STAPLETON, Circuit Judges
(Opinion filed: April 17, 2007 )
OPINION
McKEE, Circuit Judge.
Melvin Villar appeals the sentence that was imposed for illegally reentering the
United States. For the reasons that follow, we will affirm.
I.
On May 23, 2005, a one count information was filed charging Villar with reentry
of removed aliens, in violation of 8 U.S.C. § 1326(a) and (b)(2). Villar thereafter pled

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guilty to that information. The sentencing range under the advisory guidelines was 57 to
71 months. However, Villar “sought adjustment of his sentence under the ‘fast track’ of
Section 5K3.1, U.S. Sentencing Guidelines and Title 18 Section 3553(a)(6).”
Appellant’s Br. at 13. The district court imposed sentence without expressly addressing
that requested adjustment. Instead, the court merely explained:
[H]aving considered both the advisory guideline range of 57 to 71 months,
which is based on an offense level of 21, and a criminal history category
IV, and the sentencing factors enumerated at Title 18, U.S. Code, Section
3553, and pursuant to the Sentencing Reform Act of 1984, it is the
judgment of the Court that the defendant, Melvin Villar, is hereby
committed to the custody of the U.S. Bureau of Prisons, to be imprisoned
for a term of 57 months.
This appeal followed.
II.
“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.’” United States v. Sebastian, 436
F.3d 913, 915-16 (8th Cir. 2006) (quoting Prosecutorial Remedies and Other Tools
Against the Exploration 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.” Id. at 916 (citing 149 Cong. Rec. H2405, 2421

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(daily ed. Mar. 27, 2003) (commentary to an amendment offered by Rep. Feeney)). The
Commission responded to the directive by adopting U.S.S.G. § 5K3.1, which provides as
follows:
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.
“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.” Sebastian, 436 F.3d at 916.
There is no early disposition or “fast-track” program in the Virgin Islands, and
Villar relies upon the resulting sentencing patterns to argue that “fast-track” departures in
some districts but not others creates a sentencing disparity between similarly situated
defendants that the district court should have considered pursuant to 18 U.S.C. §
3553(a)(6). That statute allows sentencing courts to consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct.”
The Court of Appeals for the Ninth Circuit has explained:
When Congress passed the PROTECT Act, it did so with knowledge that
18 U.S.C. § 3553(a)(6) was directing sentencing courts to consider the need
to avoid unwarranted sentencing disparities. By authorizing fast-track
programs without revising the terms of § 3553(a)(6), Congress was
necessarily providing that the sentencing disparities that result from these
programs are warranted, and, as such, to not violate § 3553(a)(6).

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United States v. Marcial-Santiago, 447 F.3d 715, 718 (9th Cir. 2006) (citation omitted);
see also United States v. Castro, 455 F.3d 1249, 1252 (11th Cir. 2006) (“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.”)
(citations omitted).
Although we have not yet addressed this claim in a precedential opinion, it is clear
that the disparity Villar complains of has been sanctioned by Congress and a sentencing
court is therefore not required to mitigate it when fashioning an appropriate sentence
under 18 U.S.C. § 3553(a). We therefore reject Villar’s argument, and we will affirm the
sentence that was imposed.

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