Appeal from the United States District Court for the District of New Jersey. (D.C. Criminal Action No. 1-08-cr-00136-001). District Judge: Honorable Renee M. Bumb.
The opinion of the court was delivered by: Ambro, Circuit Judge
Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges
In certain federal judicial districts, "fast-track" programs allow qualifying immigrant defendants to plead guilty while waiving, among other things, their appellate and post-conviction rights. In turn, the Government agrees to request a departure from the relevant Sentencing Guidelines range. None of the districts in the Third Circuit is a fast-track district.
Pedro Manuel Arrelucea-Zamudio ("Arrelucea") pled guilty to illegal re-entry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2). The District Court sentenced him to 48 months' imprisonment. Arrelucea appeals his sentence, challenging, among other things, the Court's rejection of his argument for a downward variance based on the disparity in sentencing among immigration defendants in fast-track districts and non-fast-track districts.*fn1
The Sentencing Guidelines are advisory, and the Supreme Court's decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558 (2007), has rekindled discussion regarding fast-track districts and sentencing. The question before us is whether, post-Kimbrough, it is an abuse of a sentencing judge's discretion to consider varying from the Sentencing Guidelines in a non-fast-track jurisdiction based on the disparity created by lower immigration sentences in fast-track jurisdictions. Prior to Kimbrough we addressed this issue in United States v. Vargas, 477 F.3d 94 (3d Cir. 2007). We take this opportunity to clarify Vargas and expand on the issue in light of the Supreme Court's recent guidance. We conclude that, under the logic of Kimbrough, it is within a sentencing judge's discretion to consider a variance from the Guidelines on the basis of a fast-track disparity.
Arrelucea was born in Peru, but moved to Mexico with his wife and daughter in the late 1960s. He illegally entered the United States in 1979, eventually living and working in New Jersey, where he applied for U.S. residency. In 1991 he was convicted under New Jersey law of possession with intent to distribute a controlled substance, and was sentenced to 12 years' imprisonment. Approximately four years later, however, he was deported to Peru.
Arrelucea illegally reentered the United States in December 2000. He returned to New Jersey and secured employment using his previously issued Social Security number. According to Arrelucea, he supported his ex-wife and two children living in the United States, and sent money to his mother and sisters living in Peru. In June 2006, at 60 years old, Arrelucea was arrested again in New Jersey for possession with intent to distribute cocaine. This time, he was sentenced to five years in state prison. In September 2007, after serving approximately 15 months of his sentence, he was transferred to the custody of federal Immigration and Customs Enforcement.
A federal grand jury indicted Arrelucea on one count of illegal re-entry, to which he pled guilty in May 2008. At his plea colloquy, Arrelucea admitted that he had been deported previously and had illegally reentered the United States. However, he did not make any admissions regarding his prior criminal history.*fn2 The Government offered evidence of Arrelucea's 1991 and 2006 New Jersey state felony convictions for possession with intent to distribute.
At Arrelucea's sentencing, he raised a facial constitutional challenge to the aggravated felony sentencing enhancement of the illegal re-entry statute-that his prior convictions needed to be proven beyond a reasonable doubt before the District Court could enhance the normal sentencing-range calculation. The Court rejected this argument and allowed certified copies of Arrelucea's prior convictions to establish his eligibility for an enhancement.
Arrelucea also argued for a downward variance under 18 U.S.C. § 3553(a)(6) based on the disparity in sentence between fast-track and non-fast-track immigration districts. In his sentencing memorandum, he calculated his Guidelines range in a fast-track district at 30 to 37 months' imprisonment, rather than the higher 46 to 57 months' imprisonment under his non-fast-track calculation, and advocated for a sentence of not more than 36 months. The District Court rejected this argument, concluding that our decision in Vargas precluded consideration of a variance on this basis as a matter of law, and that the Supreme Court's decision in Kimbrough did not alter this analysis.
Finally, Arrelucea argued more generally that, based on his circumstances, the § 3553(a) factors supported varying down to impose a sentence below the Guidelines range. For example, he stated that he only illegally reentered the country once to provide economic stability for his family and care for his daughters living in the United States, he worked and paid taxes while living in the United States, he suffers from ailments related to his age, he expressed remorse for his actions, and, after removal, he will no longer have the need to return to the United States because his children are grown and he has family in Peru. The Government opposed any downward variance.
The Court declined to vary from the Guidelines range, noting that Arrelucea was deported initially after committing a serious drug offense and that when he returned he committed another serious drug offense. Accordingly, it imposed a sentence of 48 months' imprisonment.
We review a sentence for reasonableness under the deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594 (2007). Our review of procedural errors in sentencing includes a district court's improper calculation of the Guidelines, "treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008). In reviewing for reasonableness, alleged factual errors are subject to a "clearly erroneous" standard, but "purely legal" errors, such as a misinterpretation of the Guidelines or the governing caselaw, are reviewed de novo. Id.
We begin with some historical background on fast-track programs, which are also known as early disposition programs. They sprang up in federal judicial districts along the Mexican border, starting in Southern California, in the mid-1990s. Local U.S. Attorneys instituted these programs as an administrative mechanism to address the increase in their immigration caseload, such as the rise in prosecution of illegal re-entry offenses, and to create a process for faster and more efficient disposition of these cases. U.S. Sentencing Comm'n, Report to Congress, Downward Departures from the Federal Sentencing Guidelines, at 65 (Oct. 2003) (hereinafter "Sentencing Commission Report").
In 2003, Congress took note of this growing pattern. Through the PROTECT Act,*fn3 it sanctioned these programs under certain circumstances. PROTECT Act, § 401(m)(2)(B), 117 Stat. at 675; see also Sentencing Commission Report, at 56, 62. The Act, passed pre-Booker, was part of a more general effort by Congress to deal with a perceived increase in the rate of departures from the Sentencing Guidelines. PROTECT Act, § 401(m)(2)(A), 117 Stat. at 675; see also Sentencing Commission Report, at 56 (explaining that Congress amended 18 U.S.C. § 3553(c) (statement of reasons for imposing a sentence) and § 3742 (review of a sentence) to facilitate meaningful appellate review of sentences, particularly departure decisions).
Specifically concerning fast-track districts, the Act directed the Sentencing Commission to promulgate "a policy statement authorizing downward departures of no 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. Shortly thereafter, in October 2003, the Sentencing Commission created Guideline § 5K3.1, which provides that, "upon 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 in which the court resides." This language tracks that of the PROTECT Act essentially verbatim.
In response to the PROTECT Act, the Attorney General issued a memorandum to all federal prosecutors discussing Department of Justice policies relating to authorization and administration of fast-track programs. 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) ("Attorney General Memorandum"). As part of a fast-track plea agreement, a qualifying defendant, at a minimum, must agree to the factual basis that accurately reflects his offense conduct, agree not to file any Federal Rule of Criminal Procedure 12(b)(3) motions (e.g., alleging a defect in the indictment or to suppress evidence), and waive the right to appeal and right to file for a writ of habeas corpus under 28 U.S.C. § 2255 (except for ineffective assistance of counsel). In return, the Government may commit to recommend a Guidelines departure of not more than 4 levels, or may implement a "charge bargaining" fast-track program where the parties' agreement adjusts the initial Guidelines calculation downward by reducing the charge. See Attorney General Memorandum. As of February 2008, the Attorney General ...