United States of America v. Marcelino Avila Guillen

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1140
UNITED STATES OF AMERICA
v.
MARCELINO AVILA GUILLEN,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. No. 1:06-CR-00128
District Judge: Honorable Sylvia Rambo
Submitted Under Third Circuit LAR 34.1(a)
February 8, 2008
Before: MCKEE, AMBRO and ALDISERT, Circuit Judges.
(Filed: February 21, 2008)
OPINION
ALDISERT, Circuit Judge.
In this appeal, Appellant Marcelino Avila Guillen contends that his sentence of
thirty-seven months of imprisonment and three years of supervised release is

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unreasonable because of the disparity between his sentence and the sentences of
defendants sentenced in jurisdictions with fast-track programs for illegal reentry offenses.
Guillen’s argument is foreclosed by United States v. Vargas, 477 F.3d 94 (3d Cir. 2007),
and accordingly we will affirm.
I.
In Vargas, we considered Guillen’s precise argument and soundly rejected it.
Vargas argued, as Guillen presently argues, “that his sentence created an ‘unwarranted
disparity’ in light of the ‘fast-track’ programs available to defendants in some other
districts.” Id. at 97. In rejecting Vargas’s argument, we held “that a district court’s refusal
to adjust a sentence to compensate for the absence of a fast-track program does not make
a sentence unreasonable.” Id. at 99.
As we made clear in Vargas, Congress, together with the Sentencing Commission
and the Attorney General, has made the policy determination that fast-track programs are
appropriate in some districts but not in others. See id. at 100. To accept Guillen’s
argument would be to create fast-track programs by judicial fiat in areas where Congress
and delegated authorities have not authorized them. See United States v. Perez-Chavez,
422 F. Supp. 2d 1255, 1263 (D. Utah 2005). Section 3553(a)(6) does not authorize judges
to undermine Congress’ will.
We are satisfied with the manner in which the District Court treated Guillen’s
argument when, referring to the fast track program, it stated, “I think the first thing we

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We also note that this Court decided Gunter on September 11, 2006, and decided1
Vargas on February 16, 2007. The Court, therefore, had ample opportunity to consider
Gunter when making its determination in Vargas.
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have to realize is that this is a congressional decision that was made, and it will have to be
a congressional decision, I think, to change it.” App. 52.
II.
Guillen requests that Vargas be revisited based on the rationale in United States v.
Gunter, 462 F.3d 237 (3d Cir. 2006). He argues that by declining his request for departure
based on the fast-track programs available elsewhere, the District Court effectively
treated the sentencing guidelines as mandatory. To the extent that the teachings of Gunter
apply to this case, they do not vitiate the reasoning or holding of Vargas. The emphasis in
Gunter was that the Court consider the difference between sentences for powder and
crack cocaine offenses in imposing a final sentence for one of these offenses. Id. at 248-
249. Gunter did not require the district court to impose a sentence consistent with the
lower powder cocaine guidelines; it permitted the district court to consider the difference
in the guidelines when imposing a sentence. Thus, we do not believe that Gunter is a
proper analogue to require a re-examination of this Court’s precedent in Vargas.1
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We have considered all contentions raised by the parties and conclude that no
further discussion is necessary.
The judgment of the District Court will be affirmed.

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