United States of America v. Hector Gutierrez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-1156
UNITED STATES OF AMERICA
v.
HECTOR GUTIERREZ,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cr-00269-1)
District Judge: Honorable Gene E.K. Pratter
Submitted Under Third Circuit LAR 34.1(a)
October 22, 2007
Before: SLOVITER, CHAGARES, and HARDIMAN, Circuit Judges
(Filed October 29, 2007)
OPINION

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SLOVITER, Circuit Judge.
Hector Gutierrez entered a guilty plea on September 20, 2005 to a one-count
indictment charging illegal re-entry after deportation, in violation of 8 U.S.C. §§ 1326
(a) and (b)(2). On December 29, 2005, the District Court sentenced Gutierrez to forty-
six months imprisonment. Gutierrez challenges the District Court’s refusal to consider
the “unwarranted disparity” between sentences imposed in non-fast-track jurisdictions
compared to sentences imposed in fast-track jurisdictions.
I.
Gutierrez is a native and citizen of Guatemala. He first came to the United States
in 1998 to seek employment.
Gutierrez was subsequently arrested and pled guilty in a Pennsylvania state court
to a charge of rape in April 2003. He was sentenced to 11½ to 23 months imprisonment.
Following his release from prison, the Bureau of Immigration & Customs Enforcement
(“ICE”) deported Gutierrez to Guatemala on October 31, 2003.
Gutierrez returned to the United States in 2004, and was arrested in March 2005
by ICE officials in Philadelphia, Pennsylvania. On May 5, 2005, a federal grand jury in
the Eastern District of Pennsylvania returned a one-count indictment charging Gutierrez
with violating 8 U.S.C. § 1326, that is, illegal re-entry following deportation.
Having calculated Gutierrez’s United States Sentencing Guidelines (“U.S.S.G.”
or “Guidelines”) range to be 46-57 months imprisonment, the District Court sentenced

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The District Court determined that Gutierrez’s base1
offense level was eight. Gutierrez’s prior rape conviction increased
that base level by sixteen levels. Gutierrez earned a three-level
reduction for acceptance of responsibility, bringing his total
offense level to twenty-one. With a criminal history category of
III, Gutierrez’s sentencing range was 46-57 months.
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him to 46 months imprisonment. Gutierrez argues that the District Court erred because1
it refused to grant his request for a sentencing variance based upon so-called sentence
disparities between fast-track and non-fast-track jurisdictions. The District Court ruled
that it could not consider the fast-track disparity argument, because Congress had not
authorized judges to do so. Specifically, the District Court stated that the fast-track
option is a “political question left to the good and sound reasoning of those authorized to
seek it.” App. at 55.
Gutierrez timely appealed, arguing that, due to the discretionary nature of the
Guidelines following the Supreme Court’s decision in United States v. Booker, 543 U.S.
220 (2005), the District Court should have recognized that it had discretion to consider
unwarranted sentencing disparities between similarly situated defendants pursuant to 18
U.S.C. § 3553(a)(6).
II.
The District Court had subject matter jurisdiction over this case under 18 U.S.C. §
3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We
review sentences for reasonableness. Booker, 543 U.S. at 261; United States v. Cooper,

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Vargas was decided after the parties completed initial2
briefing in this case. It effectively moots the arguments made by
Gutierrez.
We also note that the District Court sentenced Gutierrez3
to forty-six months, the lowest end of the Guidelines range. Had
Gutierrez prevailed in his sentence disparity argument, he would
have requested the District Court to sentence him within the range
of 37-46 months, which overlaps at the high end with the sentence
Gutierrez actually received. A sentence of forty-six months
imprisonment, therefore, is consistent with a sentence imposed
within the range Gutierrez requested.
In addition, the District Court thoroughly considered each
4
437 F.3d 324, 327 (3d Cir. 2006). “[A]ppellants have the burden of demonstrating
unreasonableness.” Cooper, 437 F.3d at 332.
III.
In United States v. Vargas, 477 F.3d 94, 99 (3d Cir. 2007), this court held that “a2
district court’s refusal to adjust a sentence to compensate for the absence of a fast-track
program does not make a sentence unreasonable.” We reasoned that, although §
3553(a)(6) requires district courts to consider “unwarranted sentence disparities among”
similarly situated defendants, the sentence disparity between sentences in fast-track and
non-fast-track districts has been authorized by Congress, and is therefore a “warranted”
disparity. Id. at 98 & n.9. Section 3553(a)(6) does not require district courts to consider
a “warranted” disparity. See id.
Therefore, it was not unreasonable for the District Court to refuse to grant a
sentencing variance based upon Gutierrez’s sentence disparity argument. See Vargas,3

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of the discretionary factors delineated in § 3553(a), illustrating that
the Court knew that it could have imposed a non-Guidelines
sentence. Specifically, the District Court considered the
importance of striving to avoid unwarranted sentence disparities,
but determined that the concern of an unwarranted sentence
disparity did not apply in this case.
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477 F.3d at 99. Because the sentence imposed was reasonable, remand is not
appropriate.
Gutierrez argues, however, that this court’s holding in Vargas is inconsistent with
our holding in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006). In Gunter, this
court agreed with the appellant that, although the district court was under no obligation
to sentence below the Guidelines range solely based upon the crack/powder cocaine
differential, the court could (though was not required to) consider the 100:1
crack/powder cocaine differential in the Guidelines as a factor in the post-Booker
sentencing scheme. Id. at 249. We rejected the district court’s ruling that, as a matter of
law, it could not consider the differential.
Gutierrez argues that because the Gunter opinion stated that courts must exercise
their discretion by considering the relevant § 3553(a) factors in imposing a sentence, the
District Court erred in ruling that it did not, in effect, have discretion to consider the fast-
track/non-fast-track disparity. Under Vargas, however, a sentence that ignores the fast-
track/non-fast-track disparity is not unreasonable because that disparity is “warranted”
(having been authorized by Congress), and therefore does not qualify under § 3553(a)(6)

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as an “unwarranted disparity.” See Vargas, 477 F.3d at 98-100.
Contrary to Gutierrez’s argument, the District Court’s conclusion is consistent
with the conceptual underpinnings of both Gunter and Vargas. Gunter addressed the
district courts’ discretion to consider factors other than the Guidelines calculation itself.
Vargas said nothing about discretion; rather, that decision interpreted the meaning of a
particular statutory factor under § 3553(a), that is, what is meant by an “unwarranted”
sentencing disparity.
IV.
For the above-stated reasons, we will affirm the sentence imposed.
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