                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-30-2008

USA v. Columna-Romero
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4279




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                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 07-4279




                         UNITED STATES OF AMERICA

                                         v.

                        DEMETRIO COLUMNA-ROMERO,
                                             Appellant




                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                           D.C. Criminal No. 07-cr-00239
                            (Honorable Juan R. Sanchez)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                               November 20, 2008

             Before: SCIRICA, Chief Judge, RENDELL, Circuit Judge,
                    and O’CONNOR, Retired Associate Justice *

                        (Opinion Filed December 30, 2008 )




                            OPINION OF THE COURT




  *
   The Honorable Sandra Day O’Connor, Retired Associate Justice of the Supreme
Court of the United States, sitting by designation.
SCIRICA, Chief Judge.

       Defendant Demetrio Columna-Romero was sentenced to 41 months’ imprisonment

under 8 U.S.C. § 1326(a) and (b)(2). He appeals this sentence as unreasonable and

contrary to his Fifth and Sixth Amendment rights. We disagree, and will affirm.

                                              I.

       On July 9, 2007, Columna-Romero, a citizen of Mexico, pleaded guilty to a single

count of reentry after deportation in violation of 8 U.S.C. § 1326(a).1 There was no plea

agreement. Based on Columna-Romero’s offense level and criminal history category, the

Presentence Investigation Report (“PSR”) calculated an advisory Sentencing Guidelines

range of 41–51 months. Neither party objected to the PSR. The District Court held a

sentencing hearing on October 30, 2007. Prior to this hearing, Columna-Romero

submitted a sentencing memorandum requesting a downward variance, based both on his

personal circumstances and on the fact that he was arrested in a district that lacked a fast-

track program for handling offenses such as his. Had this fast-track program been

available, Columna-Romero asserted, he would have participated in it and received a

lower sentence. This created a disparity in sentencing treatment that supported a variance




   1
    At the plea hearing, Columna-Romero reserved the right to challenge the imposition
of a sentence under 8 U.S.C. § 1326(b)(2), based upon a prior conviction of an aggravated
felony. Columna-Romero had previously been convicted of attempted robbery in New
York. The Presentence Investigation Report factored this prior conviction into its
calculations. Columna-Romero’s sentencing memorandum attested to the conviction, and
his counsel acknowledged it at the sentencing hearing.

                                              2
from the PSR’s advised range. Columna-Romero reiterated these arguments at his

sentencing hearing. Having heard from Columna-Romero and the Government, and

having considered the PSR and the sentencing recommendations of the Probation

Department and the Government, the District Court found that “all the evidence before

[it] supports a reasonable sentence to be imposed within the guideline range.”

Accordingly, the court imposed a sentence of 41 months’ imprisonment, 3 years’

supervised release, and a $100 special assessment (which was waived). This timely

appeal followed.2

                                             II.

       Columna-Romero’s first contention on appeal is that the District Court

misunderstood the extent of its sentencing authority when it denied his request for a

downward variance based on the absence of a fast-track program in the Eastern District of

Pennsylvania. According to Columna-Romero, the court erred in two respects: by

declining to find that, under 18 U.S.C. § 3553(a)(6), the absence of a fast-track program

created an “unwarranted sentence disparit[y]” between himself and other “defendants

with similar records who have been found guilty of similar conduct”; and by failing to

account for the absence of this program in its analysis of the other § 3553(a) factors.


   2
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the District
Court’s sentencing decision for abuse of discretion, to ensure that the court committed no
significant procedural error and that the sentence is substantively reasonable. See United
States v. Wise, 515 F.3d 207, 217–18 (3d Cir. 2008).

                                             3
These errors, Columna-Romero contends, demonstrate that the District Court treated the

Sentencing Guidelines as mandatory rather than advisory in violation of United States v.

Booker, 543 U.S. 220 (2005), thereby rendering his sentence procedurally unreasonable.

       As the District Court recognized, this matter is governed by our decision in United

States v. Vargas, 477 F.3d 94 (3d Cir. 2007), cert. denied, 128 S. Ct. 199 (2007). Vargas,

like Columna-Romero, was sentenced under § 1326(a) and (b)(2). He contended the

District Court should have considered the disparity between fast-track and non-fast-track

districts in fashioning his sentence. We surveyed our sister circuits and held, as “the

Second and Fourth through Eleventh Circuits” had, “that a district court’s refusal to

adjust a sentence to compensate for the absence of a fast-track program does not make a

sentence unreasonable.” Id. at 99. We found that, since Congress had authorized the

scheme for creating fast-track districts, see PROTECT Act, Pub. L. No. 108-21, §

401(m)(2)(B), 117 Stat. 650, 675 (2003), the sentence disparities that may result from the

implementation of that scheme could not be “unwarranted” under § 3553(a)(6). See

Vargas, 477 F.3d at 100. Furthermore, we noted that, to prove such an “unwarranted

disparity,” “the burden [is] on the defendant to demonstrate similarity by showing that

other defendants’ ‘circumstances exactly paralleled’ his.” Id. (quoting United States v.

Charles, 467 F.3d 828, 833 n.7 (3d Cir. 2006)). We found “[t]here has been no such

showing here, and a court should not consider sentences imposed on defendants in other

cases in the absence of such a showing by a party.” Id. Additionally, we pointed out that



                                             4
“[a] court should not create its own fast-track program or substitute its own sentencing

guidelines for those of the Sentencing Commission,” as “the establishment of fast-track

programs is a matter left to Congress and the Attorney General, and the review of national

sentencing practices and formulation of advisory sentencing guidelines is a matter left to

the Sentencing Commission.” Id. Lastly, we concluded that “even if we were to find that

Vargas had shown that fast-track programs created an unwarranted disparity with

similarly situated defendants under § 3553(a)(6), . . . the District Court exercised its

discretion by considering the relevant § 3553(a) factors. This exercise of discretion is

further evidence that Vargas’ sentence was reasonable, even in light of any disparity

created by fast-track programs.” Id.

       The District Court relied on Vargas in rejecting Columna-Romero’s fast-track

contention. Under Vargas, it found, “the burden is upon the defendant to demonstrate

similarity by showing the other defendants’ circumstances were exactly parallel.”

Furthermore, “[a]s a trial judge, I should not create—or a trial court—cannot create its

own fast-track program or substitute its own sentencing guidelines for those of the

Sentencing Commission.” And lastly, “[t]he Third Circuit has rejected the disparity

between fast-track and non-fast-track sentencing, because Congress has expressly

approved them . . . . Such a disparity, therefore, could not be considered unwarranted . . .

.” The District Court then moved from § 3553(a)(6) to the rest of the § 3553(a) analysis,

noting that it “ha[s] been asked to consider the same argument of the fast-track disparity



                                              5
under the remaining . . . 3553(a) factors. And I find the argument unpersuasive for the

reasons previously stated and the reasons that I will explain now.” The court then

reviewed Columna-Romero’s personal history and circumstances in light of those factors,

concluding that “a sentence within the guidelines is sufficient but not greater than

necessary to accomplish the penal goals of punishment.”

       We see no procedural error in this determination. The District Court explicitly

acknowledged “the United States Sentencing Guidelines are no longer mandatory, but are

advisory pursuant to [Booker].” It found no unwarranted disparity under § 3553(a)(6),

and then considered the remaining § 3553(a) factors in light of all of the relevant

evidence and arguments before it, including Columna-Romero’s fast-track argument. It

recognized its authority to impose a sentence below the advised range, but it determined a

sentence within the Guidelines was reasonable and a downward variance was

inappropriate. Columna-Romero contends the District Court’s statements at the

sentencing hearing do not adequately demonstrate that it understood its authority to

consider his fast-track argument in its § 3553(a) analysis. We disagree. We have

recognized that “because district court judges render sentencing decisions orally and

spontaneously from the bench after the presentation of numerous arguments, we do not

expect them to deliver ‘a perfect or complete statement of all of the surrounding law.’”

Vargas, 477 F.3d at 101 (quoting United States v. Cooper, 437 F.3d 324, 330 n.8 (3d Cir.

2006)); see also Rita v. United States, 127 S. Ct. 2456, 2468 (2007) (“The sentencing



                                             6
judge should set forth enough to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking

authority. Nonetheless, when a judge decides simply to apply the Guidelines to a

particular case, doing so will not necessarily require lengthy explanation.” (citation

omitted)). Here, the District Court made sufficiently clear that it had considered

Columna-Romero’s fast-track argument with respect to all of the § 3553(a) factors, but

had found the argument unpersuasive in light of the evidence before it. This was a proper

exercise of discretion under Booker, and resulted in a procedurally reasonable

determination of Columna-Romero’s sentence.

       According to Columna-Romero, however, the Supreme Court’s recent decision in

Kimbrough v. United States, 128 S. Ct. 558 (2007), calls into question whether fast-track

programs cannot create “unwarranted disparities” because Congress has explicitly

approved their creation and scheme of implementation. We recognize that Kimbrough

has prompted reconsideration of the role fast-track programs may play in a sentencing

court’s § 3553(a) analysis, and whether disparities resulting from the fast-track sentencing

scheme may now be considered “unwarranted” under § 3553(a)(6). Compare United

States v. Rodríguez, 527 F.3d 221, 229 (1st Cir. 2008), with United States v. Gomez-

Herrera, 523 F.3d 554, 562–63 (5th Cir. 2008), and United States v. Vega-Castillo, 540

F.3d 1235, 1238–39 (11th Cir. 2008), reh’g en banc denied, 548 F.3d 980 (11th Cir.

2008). But we do not reach that issue here. As the District Court noted, in proving an



                                              7
“unwarranted disparity” under § 3553(a)(6), Columna-Romero bore the burden of putting

forth evidence of other defendants with parallel circumstances who have received lower

sentences pursuant to a fast-track program. See Vargas, 477 F.3d at 100. The record

does not reflect such evidence. Columna-Romero has made general assertions regarding

the existence of fast-track programs in other districts and the availability of lower

sentences through such programs. But he has not identified other defendants, with

parallel circumstances and records, who were eligible for and received such lower

sentences. Thus, as the District Court found, Columna-Romero has not carried his burden

in showing an “unwarranted disparity” under § 3553(a)(6). Kimbrough, even if relevant

to Vargas, would not alter this determination. As to the rest of the § 3553(a) analysis, the

District Court considered Columna-Romero’s fast-track argument, and Kimbrough would

not require that the court find this argument any more persuasive than it already has.

Accordingly, the District Court understood and exercised its discretion properly in this

case, and did not commit procedural error in imposing Columna-Romero’s sentence.

                                             III.

       Columna-Romero also contends that, in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), the District Court’s consideration of his prior conviction in its sentencing

decision under § 1326(b)(2) violated his Fifth and Sixth Amendment rights, as the prior

conviction was neither charged in the indictment nor admitted at his guilty plea. As

Columna-Romero acknowledges, and as we also found in Vargas, this challenge is



                                              8
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998); United

States v. Coleman, 451 F.3d 154, 159–60 (3d Cir. 2006), cert. denied, 127 S. Ct. 991

(2007); and United States v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005). See Vargas, 477

F.3d at 104–05.3

                                           IV.

       For the foregoing reasons, we find the sentence reasonable and will affirm the

judgment of conviction and sentence.




   3
    Columna-Romero concedes this authority controls, and only raises the challenge to
preserve it in the event the Supreme Court were to reverse Almendarez-Torres.

                                            9
