United States of America v.  Enrique Perez-Pena

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 05-5054 
ENRIQUE PEREZ-PENA,
Defendant-Appellee. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-05-18)
Argued: May 26, 2006
Decided: June 30, 2006
Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by published opinion. Chief Judge Wilkins
wrote the opinion, in which Judge Shedd and Senior Judge Hamilton
joined.
COUNSEL
ARGUED: Eric David Goulian, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellant. George Alan DuBois, Assistant Federal Pub-
lic Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellee. ON BRIEF: Frank D. Whit-

-- 1 of 13 --

ney, United States Attorney, Anne M. Hayes, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellant. Thomas P. McNamara, Fed-
eral Public Defender, Raleigh, North Carolina, for Appellee.
OPINION
WILKINS, Chief Judge:
The United States appeals Enrique Perez-Pena’s sentence for ille-
gally reentering the United States after being deported, see 8 U.S.C.A.
§ 1326(a), (b)(2) (West 2005). The district court imposed a below-
guidelines variance sentence primarily to avoid an "unwarranted sen-
tence disparit[y]," 18 U.S.C.A. § 3553(a)(6) (West 2000), between
Perez-Pena and defendants that had participated in a "fast-track" pro-
gram. Finding the sentence unreasonable, we vacate and remand for
resentencing.
I.
A.
"Fast-tracking" refers to a procedure that originated in states along
the United States-Mexico border, where district courts experienced
high caseloads as a result of immigration violations. To preserve
resources and increase prosecutions, prosecutors sought to obtain pre-
indictment pleas by offering defendants lower sentences through
charge-bargaining or through motions for downward departure.
Congress officially sanctioned the use of departure fast-track pro-
grams in 2003, with its enactment of the Prosecutorial Remedies and
Other Tools to end the Exploitation of Children Today Act of 2003
("PROTECT Act"), Pub. L. No. 108-21, § 401(m)(2)(B), 117 Stat.
650, 675 (2003). In conjunction with authorizing the Attorney Gen-
eral to create and implement such programs, Congress directed the
Sentencing Commission to promulgate "a policy statement authoriz-
ing a downward departure of not more than 4 levels if the Govern-
ment files a motion for such departure pursuant to an early disposition
2 UNITED STATES v. PEREZ-PENA

-- 2 of 13 --

program authorized by the Attorney General and the United States
Attorney." Id. Pursuant to this directive, the Commission adopted
§ 5K3.1 of the sentencing guidelines, providing that "[u]pon 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." United States Sentencing
Guidelines Manual § 5K3.1, p.s. (2004).
The Attorney General provided guidelines for fast-track programs
in a 2003 memorandum to all United States Attorneys. Under these
guidelines, the programs are to be "reserved for exceptional circum-
stances, such as where the resources of a district would otherwise be
significantly strained by the large volume of a particular category of
cases." J.A. 70. The memorandum goes on to describe the criteria to
be used in determining whether such exceptional circumstances exist:
(1) the district must face an "exceptional local circumstance with
respect to a specific class of cases" that warrants expediting their dis-
position; (2) declination of such cases in favor of state prosecution
must be unavailable or unwarranted; (3) the cases must be highly
repetitive and present similar fact scenarios; and (4) the cases must
not involve an offense that the Attorney General has designated a
"crime of violence." Id. at 71 (internal quotation marks omitted).
The memorandum further specifies that any fast-track program
must require the defendant to enter into a written plea agreement and
to waive his rights to file pretrial motions, to appeal, and to challenge
the resulting conviction under 28 U.S.C.A. § 2255 (West Supp. 2006),
except on the ground of ineffective assistance of counsel. These
requirements apply to charge-bargaining fast-track programs as well
as PROTECT Act programs involving downward departures.
Acting pursuant to authority delegated by the Attorney General, the
Deputy Attorney General approved fast-track programs in 13 districts
for illegal reentry offenses under 8 U.S.C.A. § 1326. No such pro-
gram has been approved for the Eastern District of North Carolina,
however.
B.
Perez-Pena, a citizen of Mexico, illegally entered the United States
in 1993. In July 1999, he was convicted in Florida of the felony of
3 UNITED STATES v. PEREZ-PENA

-- 3 of 13 --

committing a lewd, lascivious, or indecent act upon a child. Perez-
Pena’s conviction was based on his having had sexual intercourse
with a 12-year-old girl on several occasions in late 1998, when he was
21. He was sentenced to two years of house arrest, to be followed by
three years of probation, and he was deported on July 28, 1999.
Perez-Pena reentered the United States without permission in early
2004. A little more than a year later, he was arrested in Greenville,
North Carolina following a traffic stop. As a result, Perez-Pena was
indicted on a single count of reentering the United States after having
been deported. See 8 U.S.C.A. § 1326(a), (b)(2). He pleaded guilty to
the indictment without a plea agreement.
At sentencing, the district court began by calculating Perez-Pena’s
sentencing guideline range. Because Perez-Pena had been convicted
of a felony crime of violence prior to his deportation—his indecent
act offense—the district court applied a 16-level increase to his base
offense level of 8. See U.S.S.G. § 2L1.2(a), (b)(1)(A)(ii). Application
of a 3-level adjustment for acceptance of responsibility, see U.S.S.G.
§ 3E1.1, reduced the total offense level to 21. With a Criminal His-
tory Category of I, Perez-Pena’s guideline range was 37 to 46 months.
The district court then heard argument on a request by Perez-Pena for
a below-guidelines sentence. Perez-Pena contended that such a sen-
tence was necessary to avoid an unwarranted sentence disparity with
defendants who had received "fast-track" sentences. These defendants
included not only defendants in other districts but also a group of 48
illegal immigrants who Perez-Pena maintained had been arrested on
a single occasion the prior month in the Eastern District of North Car-
olina and had been allowed to plead guilty to illegal entry under 8
U.S.C.A. § 1325 (West 2005), rather than face possible prosecution
for the more serious offense of illegal reentry. Perez-Pena also argued
that failure to impose a below-guidelines sentence would create a dis-
parity with at least one other similarly situated defendant in the East-
ern District of North Carolina who had received a reduction from a
different district court judge on the basis of fast-track disparity. Perez-
Pena further argued that his prior conviction was for sexual conduct
to which the victim consented, and that he was sentenced only to two
years of house arrest followed by three years of probation. For these
reasons, Perez-Pena requested a six-month sentence.
4 UNITED STATES v. PEREZ-PENA

-- 4 of 13 --

In contrast, the Government sought a 37-month sentence, the low
end of the applicable guideline range. The Government denied that
any disparity produced by such a sentence would be "unwarranted"
since Perez-Pena did not participate in any fast-track program and
was not similarly situated to the illegal immigrants who had recently
received expedited treatment in the Eastern District of North Carolina
because they were not known to have had any prior convictions. The
Government also emphasized that the victim of Perez-Pena’s prior
crime was only 12 years old.
At the close of arguments, the court imposed a sentence of 24
months, which was 13 months less than the low end of the guideline
range and the equivalent of a four-level downward departure. As jus-
tification for sentencing Perez-Pena below the applicable guideline
range, the court cited the sentencing disparity issues with defendants
both within and outside the Eastern District of North Carolina. The
court also noted Perez-Pena’s "total lack of criminal record with the
exception of the predicate offense which was committed some seven
years ago with the alleged consent of both parties." J.A. 235.
II.
The Government first argues that the district court erred to the
extent that it imposed a below-guidelines sentence to account for sen-
tences received by defendants participating in fast-track programs.
We agree. See United States v. Galicia-Cardenas, 443 F.3d 553, 555
(7th Cir. 2006) (per curiam) (vacating as unreasonable non-fast-track
defendant’s sentence that was reduced the equivalent of four levels
below guideline range to avoid disparity with sentences of fast-track
defendants); cf. United States v. Marcial-Santiago, Nos. 05-30248,
05-30249, 05-30251, 2006 WL 1215444, at *2-*3 (9th Cir. May 8,
2006) (affirming as reasonable refusal by district court to impose
below-guidelines sentence based on alleged unwarranted disparity
with fast-track defendants); United States v. Martinez-Martinez, 442
F.3d 539, 542-43 (7th Cir. 2006) (same); United States v. Jimenez-
Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc) (same); United
States v. Sebastian, 436 F.3d 913, 916 (8th Cir. 2006) (same).
In United States v. Booker, 543 U.S. 220, 244 (2005), the Supreme
Court held that the Sixth Amendment right to a jury trial is violated
5 UNITED STATES v. PEREZ-PENA

-- 5 of 13 --

when the district court, acting pursuant to a mandatory guidelines sys-
tem, imposes a sentence greater than the maximum authorized by the
facts found by the jury alone. To remedy this problem, the Court sev-
ered and excised the provisions of the Sentencing Reform Act1 that
mandated sentencing and appellate review in conformance with the
guidelines. See Booker, 543 U.S. at 259 (severing and excising 18
U.S.C.A. § 3553(b)(1) (West Supp. 2006) and 18 U.S.C.A. § 3742(e)
(West 2000 & Supp. 2006)). This excision rendered the guidelines
"effectively advisory," id. at 245, and replaced the previous standard
of review with review for reasonableness, see id. at 261.
That the guidelines are non-binding in the wake of Booker does not
mean that they are irrelevant to the imposition of a sentence. To the
contrary, remaining provisions of the Sentencing Reform Act require
the district court to consider the guideline range applicable to the
defendant and pertinent policy statements of the Sentencing Commis-
sion. See 18 U.S.C.A. § 3553(a)(4), (a)(5) (West Supp. 2006);
Booker, 543 U.S. at 264 (stating that district courts "must consult
[the] Guidelines and take them into account when sentencing"). In
addition to the guidelines, the district court must consider "the nature
and circumstances of the offense and the history and characteristics
of the defendant," 18 U.S.C.A. § 3553(a)(1) (West 2000); the court
also must ensure that the sentence it imposes "fulfill[s] the congres-
sionally established objectives for sentencing: promoting respect for
the law; providing just punishment for the offense; affording adequate
deterrence; protecting the public from further criminal activity of the
defendant; providing the defendant training, medical care, and correc-
tional treatment; . . . providing restitution to victims," United States
v. Green, 436 F.3d 449, 455 (4th Cir. 2006), cert. denied, 74
U.S.L.W. 3654 (U.S. May 22, 2006) (No. 05-10474); see 18 U.S.C.A.
§ 3553(a)(2), (a)(7) (West 2000). Further, the court must "avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct," 18 U.S.C.A.
§ 3553(a)(6); see Green, 436 F.3d at 455.
1Sentencing Reform Act of 1984, Pub. L. No. 98-473, ch. II, 98 Stat.
1987-2040 (1984) (codified as amended at 18 U.S.C.A. §§ 3551-3742
(West 2000 & Supp. 2006) and at 28 U.S.C.A. §§ 991-998 (West 1993
& Supp. 2006)).
6 UNITED STATES v. PEREZ-PENA

-- 6 of 13 --

Thus, in imposing a sentence after Booker, the district court must
engage in a multi-step process. First, the court must correctly deter-
mine, after making appropriate findings of fact, the applicable guide-
line range. See United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005). Next, the court must "determine whether a sentence within that
range . . . serves the factors set forth in § 3553(a) and, if not, select
a sentence [within statutory limits] that does serve those factors."
Green, 436 F.3d at 456. The district court must articulate the reasons
for the sentence imposed, particularly explaining any departure or
variance from the guideline range. See 18 U.S.C.A. § 3553(c) (West
Supp. 2006); Hughes, 401 F.3d at 546 & n.5. The explanation of a
variance sentence must be tied to the factors set forth in § 3553(a) and
must be accompanied by findings of fact as necessary. See Green, 436
F.3d at 455-56.
We review the sentence for reasonableness, considering "the extent
to which the sentence . . . comports with the various, and sometimes
competing, goals of § 3553(a)." United States v. Moreland, 437 F.3d
424, 433 (4th Cir. 2006), cert. denied, 74 U.S.L.W. 3640 (U.S. May
15, 2006) (No. 05-10393). When we review a sentence outside the
advisory guideline range—whether as a product of a departure or a
variance—we consider whether the district court acted reasonably
both with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the guideline range. See
id. at 433-34 (variance sentence); United States v. Hairston, 96 F.3d
102, 106 (4th Cir. 1996) (departure sentence). If a district court pro-
vides an inadequate statement of reasons or relies on improper factors
in imposing a sentence outside the properly calculated advisory
guideline range, the sentence will be found unreasonable and vacated.
See Green, 436 F.3d at 457.
We now turn to the facts before us. The outcome here depends
largely on whether a sentencing disparity between a fast-track sen-
tence and a non-fast-track sentence can be "unwarranted" within the
meaning of § 3553(a)(6). Different arguments pertain to disparities
with PROTECT Act fast-track sentences than do disparities with
charge-bargained sentences. We will therefore address these types of
7 UNITED STATES v. PEREZ-PENA

-- 7 of 13 --

disparities separately, beginning with disparities resulting from charge
bargaining.2
A.
There is no denying that Congress has decided that governmental
law enforcement or administrative concerns warrant sentencing dis-
parities between defendants with similar criminal conduct and
records, under some circumstances. For example, Congress specifi-
cally provided in the Sentencing Reform Act that, "[u]pon motion of
the Government, [district courts] shall have the authority to impose
a sentence below a level established by statute as a minimum sentence
so as to reflect a defendant’s substantial assistance in the investigation
or prosecution of another person who has committed an offense."
18 U.S.C.A. § 3553(e) (West Supp. 2006). This subsection reflects
Congress’ determination that sentencing disparities between defen-
dants with similar criminal conduct and records are warranted to the
extent that the Government determines that a particular defendant has
advanced its interest in prosecuting other offenders. Indeed, that is
exactly what the Government does when, through charge-bargaining,
it obtains a sentence for a fast-track defendant that is lower than he
otherwise might have faced considering his conduct. That is so
because the defendant’s acceptance of the fast-track plea bargain frees
up governmental resources that the Government can then use to pros-
ecute other offenders. See J.A. 70 (Attorney General’s memorandum
stating that "‘fast-track’ programs are based on the premise that a
defendant who promptly agrees to participate in such a program has
saved the government significant and scarce resources that can be
used in prosecuting other defendants and has demonstrated an accep-
tance of responsibility above and beyond what is already taken into
account by the adjustments contained in U.S.S.G. § 3E1.1").
Perez-Pena argues that a sentencing disparity between two other-
wise similar defendants, one who accepts a fast-track plea bargain and
another who cannot do so because he was arrested in a non-fast-track
district, is unwarranted because the resulting disparity is based only
2We intend this discussion to apply as well to Perez-Pena’s allegations
concerning the illegal immigrants arrested within the Eastern District of
North Carolina.
8 UNITED STATES v. PEREZ-PENA

-- 8 of 13 --

on the jurisdiction in which the defendants were arrested. That is an
overly simplistic view, however, because the disparity is due not to
the location of the arrest, but rather to the fact that the Government
offered only one of the defendants a plea bargain. Of course, whether
the Government wishes to plea bargain with a particular defendant
often depends on any number of factors far beyond the defendant’s
control. The fortuity of whether a defendant is offered a fast-track
plea bargain is not different in any relevant way from the fortuity of
whether a defendant possesses information that he can offer the Gov-
ernment in return for a reduced sentence. Defendants who are fortu-
nate enough to be able to offer the Government what it wants can
obtain reduced sentences not because they deserve the reductions, but
because the reductions are the leverage that allows the Government
to get what it wants. Thus, the resulting reductions (and disparities
with otherwise similarly situated defendants) serve an important pur-
pose.
Critically, to sentence defendants who have not been offered plea
bargains as if they had been offered and had accepted plea bargains
would effectively nullify the Government’s discretion to determine
which defendants it wishes to receive the benefit of a bargain. Cf.
United States v. Banuelos-Rodriguez, 215 F.3d 969, 976 (9th Cir.
2000) (en banc) ("[A]llowing a district court to depart in order to
equalize the sentences of defendants who had pleaded guilty to com-
mitting different crimes (even if they had engaged in similar conduct)
would implicate the authority given to United States attorneys to
negotiate plea bargains." (internal quotation marks omitted)). The
effect of such sentencing would be to give the benefit of the Govern-
ment’s plea bargains to defendants with whom the Government did
not wish to bargain. Congress certainly would not have sanctioned
that result.
Moreover, refusing to sentence Perez-Pena as if he were a fast-
track defendant is not "penalizing" him for not accepting a deal that
the Government never offered, but see United States v. Medrano-
Duran, 386 F. Supp. 2d 943, 948 (N.D. Ill. 2005) ("[I]t hardly makes
sense to penalize [a defendant in a non-fast-track jurisdiction] for fail-
ing to meet the requirements of a program that was never available
to him."); rather, it is simply not rewarding him for conferring a bene-
fit upon the Government that he did not confer. By virtue of his not
9 UNITED STATES v. PEREZ-PENA

-- 9 of 13 --

receiving this reward, it is true that his sentence will be greater than
it would have been had he reached a deal with the Government. But
comparing the sentences of defendants who helped the Government
to those of defendants who did not—regardless of why some were in
a position to help and others were not—is comparing apples and
oranges. For this reason, Congress could not have intended that dis-
parities resulting from the exercise of prosecutorial discretion could
be determined to be "unwarranted."3
B.
Sentencing disparities between defendants receiving fast-track
downward departures under the PROTECT Act and those not receiv-
ing such departures are "warranted" as a matter of law for all the same
reasons, as well as for the additional reason that Congress and the
Sentencing Commission explicitly sanctioned such disparities. In
enacting the PROTECT Act, Congress directed the Commission to
authorize a downward departure of no more than four levels if the
Government moved for such a departure pursuant to a fast-track pro-
gram authorized by the Attorney General. See Pub. L. No. 108-21,
§ 401(m)(2)(B), 117 Stat. 650, 675 (2003). As the Sentencing Guide-
lines had the force of law at the time, see Booker, 543 U.S. at 233-34,
Congress necessarily intended that defendants who did not benefit
from such motions—whether because the Attorney General had not
authorized a program in that district or because the Government deter-
mined that the program was not appropriate for a particular defendant
—would receive higher sentences than those who did benefit. Cf.
United States v. Montes-Pineda, 445 F.3d 375, 379-80 (4th Cir. 2006)
("Congress seems to have endorsed at least some degree of disparity
3In fact, allowing sentencing courts to determine whether they should
sentence non-fast-track defendants as if they had been fast-tracked would
produce "unwarranted sentence disparities" between similarly situated
non-fast-track defendants, some of whom would benefit from the exis-
tence of others’ fast-track deals and some of whom would not. Cf. United
States v. Eura, 440 F.3d 625, 633 (4th Cir. 2006) (noting that "giving a
sentencing court the authority to sentence a defendant based on its view
of an appropriate ratio between crack cocaine and powder cocaine would
inevitably result in an unwarranted disparity between similarly situated
defendants").
10 UNITED STATES v. PEREZ-PENA

-- 10 of 13 --

by expressly authorizing larger downward departures for defendants
in ‘fast track’ districts."); United States v. Eura, 440 F.3d 625, 634
(4th Cir. 2006) (holding that the variance from the 100:1 crack
cocaine/powder cocaine ratio chosen by Congress "impermissibly
usurp[ed] Congress’s judgment about the proper sentencing policy for
cocaine offenses" (internal quotation marks omitted)). In following
Congress’ directive and promulgating U.S.S.G. § 5K3.1, p.s., the Sen-
tencing Commission also sanctioned these disparities.
Perez-Pena argues that PROTECT Act disparities were not so
much explicitly sanctioned by Congress and the Commission as they
were "an undesirable, albeit not unexpected, by-product of the pursuit
of more illegal reentry prosecutions." Br. of Appellee at 25. While it
is true that Congress and the Commission may not have intended such
disparities for their own sake, they surely recognized that such dispar-
ities were necessary to achieve the twin goals of obtaining more pros-
ecutions and limiting downward departures to jurisdictions and
defendants selected by the Government. If defendants in fast-track
districts expected to receive similar sentences regardless of whether
they participated in a program, defendants would have little incentive
to participate. And, if defendants in non-fast-track districts were sen-
tenced as if they had participated in fast-track programs, then the
Government would be effectively deprived of its discretion to decide
which districts would have fast-track programs and which defendants
within those jurisdictions should be allowed to participate. These
results would amount to a rejection of Congress’ and the Sentencing
Commission’s policy choices. See Sebastian, 436 F.3d at 916 ("In this
instance, Congress and the President, by directing that the Sentencing
Commission provide for guideline departures in certain judicial dis-
tricts, concluded that the advantages stemming from fast-track pro-
grams outweigh their disadvantages, and that any disparity that results
from fast-track programs is not unwarranted." (internal quotation
marks omitted)).4
4Perez-Pena maintains that the fact that other defendants have received
fast-track sentences is relevant to § 3553(a) factors other than the "un-
warranted sentence disparity" factor, including the need to impose a sen-
tence sufficient, but not greater than necessary, to reflect the seriousness
of the offense and to promote respect for the law. The record contains
no evidence that the district court reduced Perez-Pena’s sentence on this
11 UNITED STATES v. PEREZ-PENA

-- 11 of 13 --

In short, there is no reason to believe that Congress intended that
sentencing disparities between defendants who benefitted from pro-
secutorial discretion and those who did not could be "unwarranted"
within the meaning of § 3553(a)(6). We therefore conclude that the
need to avoid such disparities did not justify the imposition of a
below-guidelines variance sentence.
III.
The Government also argues that the variance sentence was not
justified by the finding that Perez-Pena had "a total lack of criminal
record with the exception of the predicate offense which was commit-
ted some seven years ago with the alleged consent of both parties."
J.A. 235. We agree.
Initially, we note that these findings by the district court do not
indicate that Perez-Pena is significantly more deserving of a lower
sentence than the typical defendant whose illegal reentry crime has
produced the 37-46-month guideline range. Consensual sexual inter-
course between a 21-year-old defendant and a 12-year-old girl consti-
tutes a typical example of statutory rape, which the Commission has
determined triggers a 16-level enhancement, see U.S.S.G. § 2L1.2,
cmt. n.1(B)(iii).5 Cf. Moreland, 437 F.3d at 435-36 (concluding that
decision to impose below-guidelines sentence was reasonable when
guidelines called for defendant to be treated as a career offender, see
basis. And, the sentences imposed upon fast-track defendants have no
significant relevance to these factors in any event. Such sentences repre-
sent compromises between the Government’s administrative and law
enforcement interests and its interest in having the defendant receive a
sentence sufficient to reflect the seriousness of the offense and to pro-
mote respect for the law. It is for this reason that comparing the sen-
tences to non-fast-track sentences would be improper.
5In United States v. Pierce, 278 F.3d 282, 289-90 (4th Cir. 2002), we
held that violation of the North Carolina indecent liberties statute is a
"crime of violence" as that term is employed in the career offender
guideline because the statute "protects not only against the serious risk
of physical injury but also against the application of constructive force
created by the nature of the relationship of adult and child."
12 UNITED STATES v. PEREZ-PENA

-- 12 of 13 --

U.S.S.G. § 4B1.1, but his three drug offenses all involved a small
quantity, were nonviolent, and did not involve a firearm). Further,
since Perez-Pena was in the lowest criminal history category, his
guideline range already reflected that his sex crime was his only prior
offense. Given that the Commission specifically intended Perez-
Pena’s guideline range to apply to defendants under the facts identi-
fied by the district court, the mere recitation of such facts is not a
valid reason why the guideline range does not "serve[ ] the factors set
forth in § 3553(a)," Green, 436 F.3d at 456. See id. at 455-56
(explaining that the reasons for imposing a variance sentence must be
tied to the § 3553(a) factors). We therefore conclude that this latter
basis for a below-guidelines variance is also invalid. Consequently,
we vacate the sentence as unreasonable. See id. at 457.
IV.
In sum, because neither of the bases offered by the district court
justified imposition of a below-guidelines variance sentence, we
vacate Perez-Pena’s sentence and remand to the district court for resen-
tencing.6
VACATED AND REMANDED
6Our decision should not be read to foreclose the imposition of a vari-
ance sentence on remand for a reason not adequately articulated by the
district court during imposition of the now-vacated sentence.
13 UNITED STATES v. PEREZ-PENA

-- 13 of 13 --