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United States of America v. Jose J. Lopez

June 16, 2011

UNITED STATES OF AMERICA
v.
JOSE J. LOPEZ, A/K/A JOSE LOPEZ-JIMENEZ JOSE J. LOPEZ, APPELLANT
UNITED STATES OF AMERICA
v.
PEDRO ESPARZA-DIAZ, ALSO KNOWN AS JUAN DIAZ OSEGERA, ALSO KNOWN AS JUAN ESPARZA-DIAZ, ALSO KNOWN AS JUAN TRUJILLO, ALSO KNOWN AS JUAN SANCHEZ PEDRO ESPARZA-DIAZ, APPELLANT
UNITED STATES OF AMERICA
v.
PEDRO MANUEL ARRELUCEA-ZAMUDIO, APPELLANT
UNITED STATES OF AMERICA
v.
SILVESTRE BRITO-HERNANDEZ, APPELLANT



On Appeal from the United States District Court for the District of New Jersey (D.C. Nos. 3-09-cr-00623-001, 1-09-cr-00449-001, 1-08-cr-00136-001 and 1-08-cr-00711-001) District Judges: Honorable Garrett E. Brown, Honorable Robert B. Kugler and Honorable Renee M. Bumb

The opinion of the court was delivered by: Fisher, Circuit Judge.

PRECEDENTIAL

Argued April 15, 2011

Before: FISHER, JORDAN and COWEN, Circuit Judges.

OPINION OF THE COURT

In these consolidated appeals, Jose Lopez, Pedro Esparza-Diaz, Pedro Arrelucea-Zamudio, and Silvestre Brito-Hernandez ("Appellants") challenge the constitutionality and reasonableness of the sentences they received after pleading guilty to illegal re-entry, in violation of 8 U.S.C. § 1326(a) and (b)(2).*fn1 Appellants claim that their Fifth Amendment rights were violated as a result of the Department of Justice‟s ("DOJ") implementation of "fast-track" early disposition programs in select judicial districts. Section 5K3.1 of the United States Sentencing Guidelines ("U.S.S.G.") permits a district court to depart not more than four levels pursuant to an early disposition program authorized by the Attorney General for the particular district. In districts where fast-track programs are in place, qualifying defendants have the option to plead guilty immediately, in exchange for the Government‟s filing of a motion to depart pursuant to U.S.S.G. § 5K3.1. None of the districts within the Third Circuit have a fast-track program.

Although Appellants acknowledge that fast-track programs are defensible in districts with a high volume of immigration cases, such as districts along the southwest border of the United States, they challenge the reasoning behind authorizing these programs in districts with a low volume of immigration cases and in non-border districts. Appellants maintain that fast-track programs have been approved in an arbitrary manner, creating a disparity among similarly situated defendants that violates their Fifth Amendment right to equal protection. Additionally, Appellants challenge the reasonableness of their sentences. We determine that the DOJ‟s implementation of fast-track programs is rationally related to several legitimate governmental interests and does not violate Appellants‟ Fifth Amendment rights. Further, the sentences imposed were procedurally and substantively reasonable. We will affirm the judgments of sentence entered by each District Court.

I. Background

Fast-track programs were initially established in the mid-1990s in federal judicial districts along the border between the United States and Mexico -- in Texas, New Mexico, Arizona, and California. Faced with an influx of immigration cases, local United States Attorneys sought to manage their caseloads by offering shorter sentences, in the form of a motion for downward departure or some other benefit, in exchange for the defendant‟s agreement to plead guilty immediately and waive appellate and other rights. See generally Jane L. McClellan & Jon M. Sands, Federal Sentencing Guidelines and the Policy Paradox of Early Disposition Programs: A Primer on "Fast-Track" Sentences, 38 Ariz. St. L. J. 517 (2006).

In 2003, Congress explicitly authorized downward departures in fast-track programs when it passed the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act ("PROTECT Act"), Pub. L. No. 108-21, 117 Stat. 650 (2003). The PROTECT Act "was part of a more general effort by Congress to deal with a perceived increase in the rate of departures from the Sentencing Guidelines." United States v. Arrelucea-Zamudio, 581 F.3d 142, 145 (3d Cir. 2009). As such, Congress 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 disposition program authorized by the Attorney General and the United States Attorney[.]" PROTECT Act, § 401(m)(2)(B), 117 Stat. at 675. In response, the Sentencing Commission created U.S.S.G. § 5K3.1, which states 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."

Following passage of the PROTECT Act, the Attorney General issued a memorandum to all federal prosecutors discussing the authorization and administration of fast-track programs. See Memorandum from John Ashcroft, Att‟y Gen., Dep‟t of Justice, to U.S. Attorneys (Sept. 22, 2003), reprinted in 16 Fed. Sent. R. 134 (Dec. 2003) ("Ashcroft Memo").*fn2 While the Ashcroft Memo highlighted the need for fast-track programs in districts with a high volume of immigration cases, it also made clear that "there may be some other exceptional local circumstance, other than the high incidence of a particular type of offense, that could conceivably warrant "fast-track‟ treatment." Id. at 135. As of December 28, 2009, the Attorney General has approved twenty-five fast-track programs in seventeen judicial districts.*fn3 Fourteen fast-track programs are authorized for illegal re-entry cases.*fn4 The District of New Jersey does not have any kind of fast-track program. Appellants‟ constitutional argument concerns the disparity in treatment between defendants in fast-track districts and defendants in non-fast-track districts, insofar as defendants in fast-track districts are eligible to obtain a downward departure as authorized in U.S.S.G. § 5K3.1, whereas defendants in non-fast-track districts are not afforded this opportunity.

A. Jose Lopez

Jose Lopez is a native and citizen of Mexico. In 1994, he was convicted in New Jersey Superior Court of aggravated arson, and was subsequently deported to Mexico. Thereafter, Lopez illegally reentered the United States and was arrested in New Jersey in 2009. Lopez pled guilty to illegal re-entry, in violation of 8 U.S.C. § 1326(a) and (b)(2).*fn5 The Probation

(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien‟s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,

Office prepared a Presentence Investigation Report ("PSR") recommending a base offense level of eight, pursuant to U.S.S.G. § 2L1.2(a), and a sixteen level increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because Lopez was previously deported after a conviction for a felony which is a crime of violence, namely the 1994 arson. After subtracting three levels for acceptance of responsibility, the PSR recommended a total offense level of twenty-one and a criminal history category of II, yielding a Guidelines range of forty-one to fifty-one months‟ imprisonment.

Lopez argued that the District Court should vary from the Guidelines range because the availability of fast-track programs in some judicial districts but not others creates an unfair disparity. The District Court refused to do so, and sentenced Lopez to forty-one months‟ imprisonment. Lopez filed a timely notice of appeal.

B. Pedro Esparza-Diaz

Pedro Esparza-Diaz is a native and citizen of Mexico. In 1995, he was convicted in California Superior Court of a felony drug offense and sentenced to three years‟ probation and three months‟ imprisonment. In 1999, Esparza-Diaz was again convicted of drug possession and sentenced to three years‟ probation and nine months‟ imprisonment. His probation was subsequently revoked in 2000, and he was sentenced to sixteen months‟ imprisonment for the 1995 conviction and two years‟ imprisonment on the 1999 conviction, to be served concurrently. He was deported to Mexico in 2001. Years later, he illegally returned to the United States where he was arrested in New Jersey in 2009 for traffic violations. Thereafter, Esparza-Diaz pled guilty to illegal re-entry, in violation of 8 U.S.C. § 1326(a) and (b)(2).

The PSR recommended a base offense level of eight, pursuant to U.S.S.G. § 2L1.2(a), plus a sixteen-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because Esparza-Diaz was previously deported after he was convicted of a drug trafficking offense for which the sentence imposed exceeded thirteen months‟ imprisonment.*fn6 As a result, the total offense level was twenty-one, after a three-level adjustment for acceptance of responsibility. With a criminal history category of IV, the PSR recommended a Guidelines range of fifty-seven to seventy-one months‟ imprisonment.

At sentencing, Esparza-Diaz argued that the District Court should vary from the Guidelines range based on the absence of a fast-track program in the District of New Jersey. The District Court declined to exercise that discretion and also refused to vary based on the time that Esparza-Diaz spent in custody awaiting indictment. Esparza-Diaz ...


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