United States v. Bryan Boneshirt

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-3757
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Baltazar Jimenez-Perez, *
*
Appellant. *
___________
Submitted: June 17, 2011
Filed: October 18, 2011
___________
Before MURPHY and SMITH, Circuit Judges, and SCHREIER, District Judge.1
___________
SMITH, Circuit Judge.
Baltazar Jimenez-Perez pleaded guilty to illegal reentry into the United States
subsequent to removal, in violation of 8 U.S.C. § 1326(a). At sentencing, Jimenez-
Perez moved for a downward variance to compensate for an allegedly unwarranted
sentencing disparity precipitated by the unavailability of a "Fast Track" early-
disposition program in the Eastern District of Missouri, where authorities indicted
him. The district court, citing a lack of "definitive" guidance from our court on this
issue, denied Jimenez-Perez's motion for a downward variance, reasoning that it
The Honorable Karen E. Schreier, Chief Judge, United States District Court1
for the District of South Dakota, sitting by designation.

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lacked the discretion to do so. Consequently, the district court sentenced Jimenez-
Perez to a within-Guidelines sentence of 30 months' imprisonment. Jimenez-Perez
appeals and, for the following reasons, we vacate his sentence and remand for
resentencing.
I. Background
On May 23, 2010, a Bridgeton, Missouri police officer stopped Jimenez-Perez
for traffic violations. Thereafter, the officer learned that Jimenez-Perez was in the
country illegally and tendered custody of Jimenez-Perez to Immigration and Customs
Enforcement (ICE). Authorities later learned that the federal government had
previously removed Jimenez-Perez from the country on January 15, 2008, near
Laredo, Texas.
Jimenez-Perez pleaded guilty to a one-count indictment charging him with
illegal reentry, in violation of 8 U.S.C. § 1326(a). In advance of sentencing, Jimenez-
Perez filed a sentencing memorandum arguing that he deserved a downward variance
because a Guidelines sentence would result in an unwarranted sentencing disparity
under 28 U.S.C. § 3553(a)(6). Specifically, Jimenez-Perez urged that similarly
situated defendants in other jurisdictions may avail themselves of "Fast Track"
programs that offer shorter sentences in exchange for expedited plea and sentencing
procedures, thereby yielding less incarceration for the same or similar offenses.
At his sentencing hearing, Jimenez-Perez renewed his motion for a downward
variance based on the unavailability of "Fast Track," and the district court denied the
request, expressing that the court would "feel more comfortable [in downward
varying on this basis] if [it] had something more definitive from the Eighth Circuit."
Consequently, the district court sentenced Jimenez-Perez to a Guidelines sentence of
30 months' imprisonment.
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Jimenez-Perez appeals, arguing that the district court (1) procedurally erred by
failing to acknowledge its own independent authority to vary based on the
unwarranted sentencing disparity caused by the unavailability of "Fast Track" in the
Eastern District of Missouri, and (2) abused its sentencing discretion by issuing a
sentence that is substantively unreasonable in that it fails to take into account relevant
§ 3553(a) factors—namely, the desire to avoid unwarranted sentencing disparities.
II. Discussion
On appeal, Jimenez-Perez challenges his sentence, alleging that it is (1) the
product of the district court's procedural error and (2) substantively unreasonable.
First, Jimenez-Perez maintains that the district court procedurally erred by failing to
recognize its own discretionary authority to vary downward from Jimenez-Perez's
advisory Guidelines range to account for a sentencing disparity among illegal reentry
defendants caused by the inconsistent availability of "Fast Track" sentencing
programs. Second, Jimenez-Perez contends that his sentence is substantively
unreasonable because it fails to account for all "relevant factors," including the need
under 18 U.S.C. § 3553(a)(6) "to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct." For
the reasons stated below, we hold that the district court procedurally erred by failing
to recognize its sentencing discretion to vary downward, and we decline to address
Jimenez-Perez's second argument that his sentence is substantively unreasonable.
A. Overview of "Fast Track"
"Fast-[T]rack, or 'early[-]disposition' programs, were used in federal district
courts as early as 1994," United States v. Reyes-Hernandez, 624 F.3d 405, 409 (7th
Cir. 2010), when United States Attorneys began implementing these programs in their
respective districts "without any congressional warrant" to "help[] manage an
exploding volume of immigration-related cases," Thomas E. Gorman, Note, Fast-
Track Sentencing Disparity: Rereading Congressional Intent to Resolve the Circuit
Split, 77 U. Chi. L. Rev. 479, 485 (2010); accord Reyes-Hernandez, 624 F.3d at
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409–10. United States Attorneys implemented these programs predominantly in
jurisdictions along the United States's southwestern border with the Republic of
Mexico, Reyes-Hernandez, 624 F.3d at 409. Nearly a decade later, "Congress
formalized the practice by enacting the Prosecutorial Remedies and Tools Against the
Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub. L. No. 108–21,
117 Stat. 650 (2003)." Id. at 410. Congress made crimes against children the
PROTECT Act's primary focus but also paired the PROTECT Act with the Feeney
Amendment. Katherine Arnold McCurry, Comment, Rejecting Consideration of the
"Fast-Track Disparity" in a Post-Kimbrough World, 45 Wake Forest L. Rev. 1401,
1402 & n.12 (2010) (citing § 401, 117 Stat. at 667–76). The Feeney Amendment
technically was an amendment to the Child Abduction Prevention Act, the PROTECT
Act's companion bill. Reyes-Hernandez, 624 F.3d at 410.
According to the [legislative] commentary [accompanying the Feeney
Amendment], Congress sanctioned "limited departures" under structured
early disposition programs, although such programs were to be reserved
only for offenses "whose high incidence within the district has imposed
an extraordinary strain on the resources of that district as compared to
other districts." H.R. Rep. No. 108-48, at 7 (2003) (emphasis added); see
also [United States v. ]Martinez-Martinez, 442 F.3d [539,] 542 [(7th Cir.
2006)]. Congress also commented that the bill "does not confer authority
to depart downward on an ad hoc basis in individual cases." H.R. Rep.
No. 108–48, at 7.
Id. With the Feeney Amendment and other additions, the PROTECT Act emerged
from Congress "as part of an overarching initiative to respond to a purported increase
in departures from the [G]uidelines and provide meaningful appellate review of such
cases." Id.
In pertinent part, the PROTECT Act "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
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disposition program authorized by the Attorney General and the United States
Attorney.'" United States v. Sebastian, 436 F.3d 913, 915–916 (8th Cir. 2006)
(quoting § 401(m)(2)(B), 117 Stat. at 675). The Commission promptly carried out
Congress's directive "by adopting USSG § 5K3.1, concerning 'Early Disposition
Programs,' which provides 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 and the United States Attorney for the district."
Id. at 916 (alteration in original). "This language tracks that of the PROTECT Act
essentially verbatim." United States v. Arrelucea-Zamudio, 581 F.3d 142, 145 (3d
Cir. 2009).
As the Seventh Circuit has observed, "the development of [F]ast-[T]rack
programs has been prolific." Reyes-Hernandez, 624 F.3d at 412. Since the
Commission's incorporation of § 5K3.1 into the Guidelines, "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, but not in
Eastern Missouri," Sebastian, 436 F.3d at 916, where Jimenez-Perez was sentenced.
B. Procedural Error
"We review a district court's sentence first for procedural error and then for
substantive reasonableness." United States v. Hull, 646 F.3d 583, 586 (8th Cir. 2011)
(citing United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). In
this initial procedural-error review,
[w]e first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to
consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen
sentence.
Id. (quotations and citation omitted).
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In his first point on appeal, Jimenez-Perez contends that the district court
procedurally erred when it concluded that it lacked the discretion to vary downward
from the Guidelines advisory sentencing range based on the allegedly unwarranted
sentencing disparity caused by the lack of Fast Track. The government attempts to
rebut Jimenez-Perez's argument by relying on our unpublished per curiam decision
in United States v. Rosario-Moctezuma, 411 F. App'x 942 (8th Cir. 2011), in which
we held that Jimenez-Perez's "argument is squarely foreclosed by our decision in
United States v. Gonzalez–Alvarado, 477 F.3d 648, 651 (8th Cir. 2007), abrogated
on other grounds by Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed.2d
445 (2007), where we concluded that 'variances based on the absence of
[F]ast-[T]rack programs are impermissible.'" Rosario-Moctezuma, 411 F. App'x at
943–44.
However, as Jimenez-Perez points out, we decided Gonzalez-Alvarado, upon
which our unpublished Rosario-Moctezuma relied, before the Supreme Court decided
Kimbrough v. United States, 552 U.S. 85 (2007), which held that district courts are
permitted to vary downward from a properly calculated Guidelines range to
compensate for the Guidelines' then-applicable 100:1 ratio governing powder- and
crack-cocaine offenses. Our four-paragraph decision in Rosario-Moctezuma makes
no mention of Kimbrough and, because it is unpublished, lacks controlling authority.
United States v. Robertson, 606 F.3d 943, 952 n.5 (8th Cir. 2010) (citing, inter alia,
8th Cir. R. 32.1A). Finally, Jimenez-Perez notes that, "since [he] was sentenced, the
Seventh Circuit has joined the [First], [Third], and [Sixth] circuits in holding that the
absence of a [F]ast-[T]rack sentencing option may be considered at sentencing to
avoid an unwarranted disparity." (Citing Reyes-Hernandez, 624 F.3d at 421; United
States v. Camacho-Arellano, 614 F.3d 244, 245 (6th Cir. 2010); Arrelucea-Zamudio,
581 F.3d at 149; United States v. Rodríguez, 527 F.3d 221, 231 (1st Cir. 2008).) In
response to this final note, the government observes that the circuits are split on this
subject, with the Fifth, Ninth, and Eleventh Circuits all disagreeing with the First,
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Third, Sixth, and Seventh. (Citing United States v. Gonzalez-Zotelo, 556 F.3d 736,
740 (9th Cir.), cert. denied, 130 S. Ct. 83 (2009); United States v. Vega-Castillo, 540
F.3d 1235, 1238–39 (11th Cir.), reh'g en banc denied, 548 F.3d 980 (11th Cir. 2008),
cert. denied, 129 S. Ct. 2825 (2009); United States v. Gomez-Herrera, 523 F.3d 554,
563–64 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).)
Upon review of these cases, we hold that Kimbrough undermines the rationale
of our prior decisions that disallowed variances based on the unavailability of Fast-
Track in a particular judicial district. We based our pre-Kimbrough decision in
Gonzalez-Alvarado on another pre-Kimbrough precedent, Sebastian. In Sebastian,
we observed, as the government does here in its brief, that in 2003, Congress—not
the Sentencing Commission itself—enacted the PROTECT Act, directing 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.'" 436 F.3d at 915–16 (quoting §
401(m)(2)(B), 117 Stat. at 675). The government asserts that the presence of
congressional policy is dispositive because the Kimbrough Court relied on the
absence of a congressional directive establishing the 100:1 ratio. See 552 U.S. at 102
("The Government acknowledges that the Congress did not expressly direct the
Sentencing Commission to incorporate the 100:1 ratio in the Guidelines." (quotations
and citation omitted)). Accordingly, the government avers that "[c]ontrary to
[Jimenez-Perez's] position, several courts have reasoned that, while Kimbrough
permits sentencing courts to vary based on disagreements with [G]uidelines policy,
it doesn't authorize variances based on disagreement with congressional policy, and
as '[F]ast-[T]rack' was instituted by Congress, not the Sentencing Commission, courts
cannot find the disparity created unwarranted." (Citing Gonzalez-Zotelo, 556 F.3d at
740; Vega-Castillo, 540 F.3d at 1238–39; Gomez-Herrera, 523 F.3d at 563–64.) In
other words, "[t]hese Courts of Appeals focused on congressional policy expressed
in the PROTECT Act as the sole factor distinguishing the [F]ast-[T]rack issue from
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the crack[-]cocaine question in Kimbrough. Because of this, they essentially
concluded that the Guidelines are binding on the [F]ast-[T]rack question." Arrelucea-
Zamudio, 581 F.3d at 150.
However, as the Third Circuit succinctly stated, "[f]ocusing on congressional
policy here is illusory." Id. The focus, rather, should not be whether Congress,
through the PROTECT Act, blessed a sentencing disparity, making it warranted and
thereby consistent with 18 U.S.C. § 3553(a)(6). Rather, the question is whether
Congress, through the PROTECT Act, expressly curtailed a district court's sentencing
discretion under the entire array of the § 3553(a) factors.
There is no question that the Guidelines are advisory only. The
congressional[-]policy argument attempts to carve out an exception to
this Booker norm by binding a district court's sentencing discretion on
the [F]ast-[T]rack issue. The crux of the argument is that the PROTECT
Act's congressional directive sanctioning [F]ast-[T]rack programs in
certain judicial districts necessarily authorizes disparate sentencing of
immigration defendants between [F]ast-[T]rack and non-[F]ast-[T]rack
districts, so that the disparity is not "unwarranted" under § 3553(a)(6).
Thus, a district court cannot vary from the Guidelines range on the basis
of a disagreement with the treatment of defendants in non-[F]ast-[T]rack
districts because it is mandated by Congress. Most courts pre-
Kimbrough took this position (see, for example, [United States v.]
Vargas, 477 F.3d [94,] 98–99 [(3d Cir. 2007)] (collecting cases)), but it
does not have continued vitality post-Kimbrough.
Id.
In Kimbrough, the Court recognized that "[t]he crack/powder disparity
originated in the Anti-Drug Abuse Act of 1986 (1986 Act)," 552 U.S. at 95, but
rejected the government's argument that the 1986 Act "implicitly" required the
Commission and sentencing courts to apply the 100:1 ratio, id. at 102–05.
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Specifically, the Supreme Court observed that the 1986 Act, much like the PROTECT
Act at issue here,
says nothing about the appropriate sentences within [the applicable
minimum and maximum sentences], and we decline to read any implicit
directive into that congressional silence. Drawing meaning from silence
is particularly inappropriate here, for Congress has shown that it knows
how to direct sentencing practices in express terms. For example,
Congress has specifically required the Sentencing Commission to set
Guidelines sentences for serious recidivist offenders "at or near" the
statutory maximum. 28 U.S.C. § 994(h).
Id. at 103 (internal citation omitted). All four of our sister circuits that have
concluded that a district court may vary downward to compensate for the sentencing
disparities that Fast Track's unavailability creates in a given judicial district, have
done so based on the observation that nowhere in the PROTECT Act does Congress
purport to limit a district court's sentencing discretion under all § 3553(a) factors.
These courts have based that conclusion on the Supreme Court's rejection in
Kimbrough of the notion that Congress could effectuate such a limit on a district
court's sentencing discretion implicitly.2
See Reyes-Hernandez, 624 F.3d at 418 ("If Congress wanted to prohibit judges2
in non-[F]ast [T]rack districts from disagreeing with § 5K3.1 based on policy,
Congress could have issued such a directive in unequivocal terminology.");
Camacho–Arellano, 614 F.3d at 249 ("[T]he [PROTECT] Act 'neither forbids nor
discourages the use of a particular sentencing rationale, and it says nothing about a
district court's discretion to deviate from the guidelines based on [F]ast-[T]rack
disparity.'" (quoting Rodríguez, 527 F.3d at 229)); Arrelucea-Zamudio, 581 F.3d at
150–51 ("The [Kimbrough] Court made clear that, absent an express directive from
Congress, it would not read any implicit directive into the Anti-Drug Abuse Act of
1986. . . . The PROTECT Act contains no express congressional [F]ast-[T]rack
directive that would constrain a sentencing judge's discretion to vary from the
Guidelines."); Rodríguez, 527 F.3d at 229 ("While the Kimbrough Court
acknowledged that a sentencing court can be constrained by express congressional
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We join the majority of our sister circuits to have addressed this issue and
conclude that our opinion in Sebastian has been undermined by the Supreme Court's
intervening decision in Kimbrough. See McCullough v. AEGON USA, Inc., 585 F.3d
1082, 1085 (8th Cir. 2009) ("A limited exception to the prior panel rule permits us to
revisit an opinion of a prior panel if an intervening Supreme Court decision is
inconsistent with the prior opinion."). Our conclusion rests on two grounds.
First, "Kimbrough made pellucid that when Congress exercises its power to bar
district courts from using a particular sentencing rationale, it does so by the use of
unequivocal terminology." Rodriguez, 527 F.3d at 230. Congress does so, for
example, when it statutorily imposes a mandatory minimum or maximum sentence for
a given offense. Indeed, as stated earlier, the Supreme Court admonished that
"[d]rawing meaning from silence is particularly inappropriate here, for Congress has
shown that it knows how to direct sentencing practices in express terms." Kimbrough,
552 U.S. at 103 (emphasis added). The PROTECT Act lacks any such express
directive. See, e.g., Reyes-Hernandez, 624 F.3d at 418 ("Importantly, in the text of the
PROTECT Act, Congress did not specifically address a district court's discretion with
respect to sentencing in non-[F]ast-[T]rack districts. While Congress 'explicitly' gave
the Attorney General the ability to establish early disposition programs district by
district, and instructed the Sentencing Commission to promulgate a guideline to
implement those programs, it certainly did not explicitly forbid non-[F]ast-[T]rack
districts from taking into account the effect of [F]ast-[T]rack dispositions under the
3553(a) factors."); Arrelucea-Zamudio, 581 F.3d at 151 ("The PROTECT Act
contains no express congressional [F]ast-[T]rack directive that would constrain a
sentencing judge's discretion to vary from the Guidelines."); accord Rodriguez, 527
F.3d at 229.
directives, such as statutory mandatory maximum and minimum prison terms, 128
S.Ct. at 571–72, the PROTECT Act—as the Fifth Circuit would have to
concede—contains no such express imperative.").
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Second, Sebastian, like other pre-Kimbrough cases, only inquired whether a
district court may vary downward pursuant exclusively to 18 U.S.C. § 3553(a)(6).
Section 3553(a)(6) directs district courts to sentence in a manner that reflects "the
need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct." As the First Circuit recognized,
"Kimbrough counsels a new and different approach to section 3553(a)" generally, and
its "organic reading of section 3553(a) suggests that a sentencing judge should
engage in a more holistic inquiry." Rodríguez, 527 F.3d at 227–28. In Kimbrough, the
Supreme Court admonished that "[s]ection 3553(a)(6) directs district courts to
consider the need to avoid unwarranted disparities—along with other § 3553(a)
factors—when imposing sentences." Kimbrough, 552 U.S. at 108 (second emphasis
added) (citing Gall, 552 U.S. at 49–50 n.6 & 54 (2007)); See also Reyes-Hernandez,
624 F.3d at 420 ("A district court should consider all relevant § 3553(a) factors
collectively, not just what is in § 3553(a)(6)." (citations omitted)); Arrelucea-
Zamudio, 581 F.3d at 149 ("The [F]ast-[T]rack issue should not be confined to
subsection (a)(6), which concerns 'avoid[ing] unwarranted sentencing disparities.'
Instead, we hold that a sentencing judge has the discretion to consider a variance
under the totality of the § 3553(a) factors (rather than one factor in isolation) . . . ."
(emphasis added)).
In conclusion, we hold that the Supreme Court's decision in Kimbrough
undermined this circuit's precedent holding that the PROTECT Act evinced a
congressional intent to limit a district court's sentencing discretion to vary downward
in recognition of the unavailability of Fast Track in a given judicial district. Simply
put, "we clarify today that the absence of a [F]ast-[T]rack program and the resulting
difference in the guidelines range should not be categorically excluded as a
sentencing consideration." Reyes-Hernandez, 624 F.3d at 421 (citing Rodríguez, 527
F.3d at 229).
Our holding merely permits the sentencing judge to consider a
facially obvious disparity created by [F]ast-[T]rack programs among the
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totality of § 3553(a) factors considered. However, we provide a word of
caution that a [variance] from the guidelines premised solely on a [F]ast-
[T]rack disparity may still be unreasonable. To withstand scrutiny, a
[variance] should result from a holistic and meaningful review of all
relevant § 3553(a) factors.
Id. Although the district court understandably felt bound by our prior rulings, its
decision that it lacked discretion to vary downward from Jimenez-Perez's advisory
Guidelines range in light of Fast Track's unavailability in the Eastern District of
Missouri constituted procedural error. Accordingly, we vacate the district court's
sentence and remand for resentencing.3
III. Conclusion
Based on the foregoing, we vacate the district court's sentence as the product
of procedural error and remand for resentencing in a manner consistent with this
opinion.
______________________________
Because we vacate and remand Jimenez-Perez's sentence as the product of3
procedural error, we need not reach his remaining issue on appeal regarding the
substantive reasonableness of the vacated sentence. See United States v. Robinson,
639 F.3d 489, 498 n.4 (8th Cir. 2011) (declining to address whether a sentence was
substantively unreasonable because the court had already vacated the sentence on the
ground that the district court procedurally erred in scoring a prior conviction as a
controlled-substance offense for purposes of the career-offender enhancement).
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