United States of America v. ARTURO GARCIA a/k/a Arturo Garica-Estrada a/k/a Arturo Garcia-Galvan Arturo Garcia

*
Honorable Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2025
UNITED STATES OF AMERICA
v.
ARTURO GARCIA
a/k/a
Arturo Garica-Estrada
a/k/a
Arturo Garcia-Galvan
Arturo Garcia,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 05-cr-00244)
Chief District Judge: Honorable Yvette Kane
Submitted Under Third Circuit LAR 34.1(a)
March 8, 2007
Before: SLOVITER and AMBRO, Circuit Judges
POLLAK,* District Judge
(Filed: March 15, 2007)

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OPINION
AMBRO, Circuit Judge
Arturo Garcia pled guilty to one count of illegally reentering the United States in
violation of 8 U.S.C. §§ 1326(a) and (b)(2). He appeals his criminal sentence as
unreasonable under the factors set forth in 18 U.S.C. § 3553(a). See United States v.
Booker, 543 U.S. 220, 258–65 (2005); United States v. Cooper, 437 F.3d 324, 326–28 (3d
Cir. 2006). The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).
I.
Garcia’s sole argument on appeal is that his 36-month sentence is unreasonable
because it is disparate as compared to similarly situated defendants from judicial districts
with so-called “fast-track” programs. These programs exist in certain judicial districts
[t]o expedite the handling of large volumes of cases involving persons
accused of immigration offenses . . . . [They] allow defendants to obtain a
downward departure in their offense level under the . . . Sentencing
Guidelines in exchange for pleading guilty and waiving their right to file
certain motions and to appeal.
United States v. Martinez-Trujillo, 468 F.3d 1266, 1267 (10th Cir. 2006). These
programs were authorized by Congress in the Prosecutorial Remedies and Other Tools to
End the Exploitation of Children Today Act of 2003 (“PROTECT Act”), and their
existence in any given judicial district is at the discretion of the Attorney General and the
U.S. Attorney in that district. See Pub. L. 108-21, § 401(m), 117 Stat. 650, 675 (2003).

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1See Erin T. Middleton, Comment, Fast-Track to Disparity: How Federal Sentencing
Policies Along the Southwest Border are Undermining the Sentencing Guidelines and
Violating Equal Protection, 2004 U TAH L. REV . 827.
3
Even in the post-Booker world, the Sentencing Guidelines are “the ‘strong force’ that
defines the starting point for all that follows[,] . . . necessarily [affecting]—and often
defin[ing]—the ending point.” United States v. Grier, 475 F.3d 556, 608 (3d Cir. 2007)
(McKee, J., dissenting). Predictably, therefore, applying different Guidelines in the
various judicial districts across the country has resulted in national disparities in criminal
sentences.1
None of this, however, leads to the conclusion that a sentence deriving from a
Guidelines calculation done in a district with no fast-track program is necessarily
unreasonable. Importantly, 18 U.S.C. § 3553(a)(6) requires district courts to avoid
“unwarranted sentence disparities” (emphasis added). Though some have argued 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 arrested,” United
States v. Bonnet-Grullon, 53 F. Supp. 2d 430, 435 (S.D.N.Y. 1999), “Congress and the
President . . . [have] ‘concluded that the advantages stemming from fast-track programs
outweigh their disadvantages, and that any disparity that results from fast-track programs
is not “unwarranted,”’” United States v. Sebastian, 436 F.3d 913, 916 (8th Cir. 2006)
(quoting United States v. Perez-Chavez, 422 F. Supp. 2d 1255, 1263 (D. Utah 2005)).
“To require [a] district court to vary from the advisory [G]uidelines based solely on the

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existence of [fast-track] programs in other districts would conflict with the decision of
Congress to limit the availability of such sentence reductions to select geographical areas
. . . .” Sebastian, 436 F.3d at 916. As the Government correctly states, § 3553(a)(6) is
not canonical while fast-track programs are heretical. Rather, both are the policy
decisions of the Congress and, as such, have equal validity.
A district court’s refusal, therefore, to vary from the advisory Guidelines range
based on the nationwide sentence disparity created by fast-track programs does not render
a sentence per se unreasonable, as we recently held. See United States v. Vargas, No. 06-
1368, ___ F.3d ___, 2007 WL 518630, *2–3 (3d Cir. Feb. 16, 2007). This conclusion is
consistent with every other court of appeals to have considered the issue. See United
States v. Roche-Martinez, 467 F.3d 591, 595–96 (7th Cir. 2006); United States v. Mejia,
461 F.3d 158, 162–64 (2d Cir. 2006); United States v. Castro, 455 F.3d 1249, 1252–53
(11th Cir. 2006); United States v. Hernandez-Fierros, 453 F.3d 309, 312–14 (6th Cir.
2006); United States v. Montes-Pineda, 445 F.3d 375, 379–80 (4th Cir. 2006); United
States v. Martinez-Martinez, 442 F.3d 539, 541–44 (7th Cir. 2006); United States v.
Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc); Sebastian, 436 F.3d at
915–16; United States v. Morales-Chaires, 430 F.3d 1124, 1127–31 (10th Cir. 2005).
II.
We have noted that, to facilitate our reasonableness review, “the record must show
a true, considered exercise of discretion on the part of a district court, including
recognition of, and response to, the parties’ non-frivolous arguments.” United States v.

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2
Some courts of appeals have gone so far as to hold that it is impermissible for a
district court at sentencing to consider the nationwide disparity created by fast-track
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Jackson, 467 F.3d 834, 841 (3d Cir. 2006). In this case, the record reflects the District
Court’s careful consideration of Garcia’s arguments, including his contentions regarding
the nationwide sentence disparities caused by fast-track programs:
I have real concerns about the manner in which this program is
authorized and administered. It doesn’t make any sense to me that
Congress would authorize the kind of disparities that we see here to control
a problem of volume of cases.
From the administrative standpoint, it makes sense to me that in
those districts where there are huge numbers of cases, there should be
additional judges to hear those cases, not some sort of dummying down of
the [S]entencing [G]uidelines that are carefully crafted by Congress and by
the Sentencing Commission to supposedly arrive at a fair and just sentence.
How could what is a fair and just sentence in the Middle District [of
Pennsylvania] not be fair and just somewhere else [and] deserve a sentence
calculated on four points less when there’s nothing to distinguish the cases?
It just makes no sense to me.
But I have looked at the cases that you cite. And I do think that
those cases, including the Eighth Circuit case that’s cited [Sebastian], that
talk about this being a congressionally-sanctioned program and focus on the
unwarranted aspect of the disparity make the most sense to me legally. This
will never make sense to me from a public policy standpoint, but I think
legally it makes some sense to me in the way those courts have addressed it.
So for that reason, I’m going to adopt the reasoning of the Courts,
the District Court in Utah [Perez-Chavez] and the Eighth Circuit Court, and
find that there is not a disparity, an unwarranted disparity that would require
a sentence outside the [G]uideline range.
From this, we conclude that the District Court did not consider the disparities that
result from fast-track programs to be legally unwarranted and, thus, did not choose to
vary from the advisory Guidelines range on the basis thereof. Booker does not require
sentencing courts to vary from the Guidelines range; rather, it merely allows the practice.2

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programs. See United States v. Arevalo-Juarez, 464 F.3d 1246, 1249–51 (11th Cir.
2006); United States v. Perez-Pena, 453 F.3d 236, 240–44 (4th Cir. 2006); United States
v. Galicia-Cardenas, 443 F.3d 553, 555 (7th Cir. 2006). We did not decide that question
in Vargas and do not do so today. We do note, however, that such a rule may be at odds
with our decision in United States v. Gunter, which made clear that following the
Guidelines is required only at steps one and two of the sentencing process (calculating the
Guidelines sentencing range); however, sentencing courts are free to vary on any
reasonable ground at step three (imposing the actual sentence). See 462 F.3d 237, 247–49
(3d Cir. 2006) (finding error where a sentencing court treats the Guidelines as mandatory
and fails to recognize its authority ultimately to disagree with their operation and result);
see also United States v. Pickett, No. 05-3179, ___ F.3d ___, 2007 WL 445937 (D.C. Cir.
Feb. 13, 2007) (same).
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What is more, the District Court in this case did vary downward from the advisory
Guidelines range of 41–51 months of imprisonment and imposed a sentence of 36
months. This reflected the Court’s reasonable conclusion that the base offense level and
resulting Guidelines range overstated the seriousness of Garcia’s offense and instead
reflected his criminal history. Following the Guidelines, the Court reasoned, would place
too much emphasis on behavior that was not the focus of this criminal prosecution. Such
careful, individual consideration of a criminal sentence is a model of judging in the post-
Booker world.
We perceive no error in the District Court’s sentencing decisions, and thus affirm
Garcia’s 36-month sentence.

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