                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-16-2007

USA v. Vargas
Precedential or Non-Precedential: Precedential

Docket No. 06-1368




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                                   PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 06-1368


      UNITED STATES OF AMERICA

                       v.

       SANDRO ANTONIO VARGAS,

                       Appellant




On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
      (D.C.Criminal No. 05-cr-00265-1)
  District Judge: Honorable Paul S. Diamond




Submitted Pursuant to Third Circuit LAR 34.1(a)
              February 16, 2007
   Before: FUENTES, VAN ANTWERPEN, and SILER*,
                    Circuit Judges.

                  (Filed February 16, 2007)




                 OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

       Appellant Sandro Antonio Vargas appeals his sentence
of 41 months of imprisonment imposed following his
pleading guilty to illegally reentering the United States after
he was deported following conviction of an aggravated
felony in violation of 8 U.S.C. § 1326(a), (b)(2). He claims
the District Court erred in sentencing him when it (1) rejected
his argument that his sentence created an “unwarranted
disparity” in light of the “fast-track” programs available to
defendants in some other districts, (2) did not appropriately
consider § 3553(a) sentencing factors, (3) did not grant him a
downward departure from the Guidelines range based upon
extraordinary circumstances, and (4) calculated his sentence



* The Honorable Eugene E. Siler, Jr., Senior United States
Circuit Judge for the Sixth Circuit, sitting by designation.




                               1
using a prior felony that was not charged in his indictment or
proven to a jury beyond a reasonable doubt. Because Vargas’
sentence is reasonable and the District Court acted properly in
sentencing him, we will affirm.

                                   I.

        On May 5, 2005, a federal grand jury in the Eastern
District of Pennsylvania indicted Vargas, charging him with
being an aggravated felon who reentered the United States
after being deported, a violation of 8 U.S.C. § 1326(a),
(b)(2).1

      On May 19, 2005, Vargas pled not guilty to the reentry
charge and a trial date was set. A month later, however, on
June 24, 2005, Vargas changed his plea and pled guilty
without a plea agreement. At his plea-change hearing, Vargas


       1
         8 U.S.C. § 1326(a) provides, in relevant part, that “any
alien who - - (1) . . . has been . . . deported . . . and thereafter (2)
enters, attempts to enter, or is at any time found in, the United
States . . . shall be fined under Title 18, or imprisoned not more
than 2 years, or both.” And, 8 U.S.C. § 1326(b) provides, in
relevant part, that “[n]otwithstanding subsection (a) of this
section, in the case of any alien described in such subsection .
. . (2) whose removal was subsequent to a conviction for
commission of an aggravated felony, such alien shall be fined
under such Title, imprisoned not more than 20 years, or both .
. .”


                                   2
requested that the District Court strike as surplusage from his
indictment the § 1326(b)(2) portion of his charge, i.e., the
portion charging him as an alien who was previously
removed for an aggravated felony. The District Court denied
this request, although it acknowledged Vargas was only being
charged with a violation of § 1326(a) and that a prior felony
was not an element of a § 1326(a) crime. The District Court
also indicated that any § 1326(b)(2) elements, such as the
existence of a prior conviction for an aggravated felony,
would have to be proven at sentencing if the government was
to seek an enhanced sentence. Accordingly, Vargas did not
admit during his guilty plea hearing to having a previous
felony conviction.

       On December 1, 2005, the government filed a
sentencing memorandum. The memorandum stated that
Vargas, having violated 8 U.S.C. § 1326(b), faced a
maximum sentence of 20 years’ imprisonment. In addition, it
calculated Vargas’ Guidelines range as between 41 and 51
months2 and requested that the District Court impose a
sentence in this range.

       On December 6, 2005, Vargas filed a sentencing
memorandum in which he objected to the imposition of a 41-
to 51-month sentence. Citing “extraordinary family
circumstances,” Vargas requested a downward departure
pursuant to 18 U.S.C. § 3553(b), U.S.S.G. § 5K2.0, and


      2
        This was based on a total adjusted offense level of 21
and a criminal history category of II.

                              3
Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035 (1996).3
In addition, he requested a variance4 based on the application
of the sentencing factors listed in 18 U.S.C. § 3553(a)(1) to
his unique personal situation.5 Specifically, he claimed a


       3
             18 U.S.C. § 3553(b) provides for a downward
departure if “there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the
guidelines that should result in a sentence different from that
described.” U.S.S.G. § 5K2.0 provides in part that “[t]he
sentencing court may depart from the applicable guideline range
if . . . there exists an aggravating or mitigating circumstance . .
. .”
       4
        As we did in United States v. Vampire Nation, 451 F.3d
189, 195 n.2 (3d Cir. 2006), we will refer to “post-Booker
discretionary sentences not based on a specific Guidelines
departure provision as ‘variances.’”
       5
        The § 3553(a) factors, in pertinent part, are as follows:
       (1) the nature and circumstances of the offense and the
       history and characteristics of the defendant;
       (2) the need for the sentence imposed-
       (A) to reflect the seriousness of the offense, to promote
       respect for the law, and to provide just punishment for
       the offense;
       (B) to afford adequate deterrence to criminal conduct;
       (C) to protect the public from further crimes of the
       defendant; and

                                4
lesser sentence was in order because he was forced to leave
the Dominican Republic and come to this country when his
wife, who had legally come here to seek help with a
medically difficult pregnancy, needed his support.
Furthermore, because Vargas’ newborn son had heart
problems, he claimed he had to remain in the U.S. after the
child’s birth to care for his family.6




       (D) to provide the defendant with needed educational or
       vocational training, medical care, or other correctional
       treatment in the most effective manner;
       (3) the kinds of sentences available;
       (4) the kinds of sentence and the sentencing range
       established for-
       (A) the applicable category of offense committed by the
       applicable category of defendant as set forth in the
       guidelines . . .;
       (5) any pertinent policy statement issued by the
       Sentencing Commission pursuant to 28 U.S.C. §
       994(a)(2) that is in effect on the date the defendant is
       sentenced;
       (6) the need to avoid unwarranted sentence disparities
       among defendants with similar records who have been
       found guilty of similar conduct . . .
       6
        Vargas also argued, as he does here, that a 41- to 51-
month sentence would create an unwarranted disparity in
violation of 18 U.S.C. § 3553(a)(6) and would violate his rights
under the Fifth and Sixth Amendments.

                               5
       On January 24, 2006, the District Court held a
sentencing hearing. It considered his request for a § 3553(b)
downward departure and determined it was not warranted
under the circumstances. It also considered Vargas’ request
for a variance from the Guidelines, specifically noting the
advisory nature of the Guidelines after the Supreme Court’s
decision in United States v. Booker.7 After permitting Vargas’
wife to testify about her difficult pregnancy and her request
that Vargas come to the United States to be with her, the
District Court determined he was not entitled to a variance. In
support of this decision, the District Court cited the
seriousness of Vargas’ prior conviction for a crime of
violence. Having rejected these and other arguments
advanced by Vargas at the sentencing hearing, the District
Court sentenced Vargas at the very bottom of the 41- to 51-
month Guidelines range.

       The District Court entered its judgment on January 25,
2006, and Vargas filed this timely appeal on January 30,
2006.

                              II.




       7
       Booker was decided on January 12, 2005, approximately
one year before Vargas’ sentencing hearing. Cooper was
decided on February 14, 2006, after Vargas’ January 2006
sentencing hearing.

                              6
       We have jurisdiction over the District Court’s Order of
judgment and conviction pursuant to 28 U.S.C. § 1291. We
have jurisdiction to review Vargas’ sentence for
reasonableness pursuant to 28 U.S.C. § 3742(a). United
States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006).

                             III.

           A. “Unwarranted Sentencing Disparity”

        Vargas first contends the District Court erred in
rejecting his argument that his sentence, when considered in
light of sentences of similarly situated defendants in “fast-
track” districts,8 creates an “unwarranted sentencing
disparity” under 18 U.S.C. § 3553(a)(6).9 Specifically, he


       8
        “Fast-track” programs originated in the Southern
District of California in response to an overwhelming number
of illegal reentry cases. United States v. Mejia, 461 F.3d 158,
160 (2d Cir. 2006). These programs allow defendants who
violate § 1326 to receive lower sentences in exchange for
waiving certain rights, including indictment by grand jury. Id.
Today, it appears 13 of the 94 federal districts have such
programs. Id. at 161. Vargas contends that, had he been in one
of these 13 districts, he “would have been offered a reduction
of anywhere from a few offense levels to a flat sentence of 30
months.” Vargas’ Br. at 43.
      9
       Section 3553(a)(6) provides that, in sentencing
defendants, courts consider “the need to avoid unwarranted

                              7
claims that he faced a significantly higher advisory
sentencing range than defendants in fast-track districts “solely
due to the arbitrary fact of the location of his arrest.” Vargas’
Br. at 14. Because § 3553(a)(6) requires district courts to
consider disparities and the District Court in his case did not,
Vargas claims his sentence is not reasonable and that he is
entitled to a remand. Because we hold the disparity between
sentences in fast-track and non-fast-track districts is
authorized by Congress and, hence, warranted, we reject
Vargas’ contention and find his sentence reasonable.

       Vargas’ fast-track argument has been considered by
nearly every court of appeals in the United States. These
courts have almost uniformly rejected arguments by non-fast-
track defendants that any disparity created by these programs
is unwarranted, primarily relying on Congress’ express
approval of fast-track programs in section 401(m) of the
Prosecutorial Remedies and Other Tools to End the
Exploitation of Children Today Act (“PROTECT Act”), Pub.
L. No. 108-21, 117 Stat. 650, 675 (2003).10 See United States


sentence disparities among defendants with similar records who
have been found guilty of similar conduct.”
       10
        Section 401(m) of the PROTECT Act provides as
follows: “REFORM OF EXISTING PERMISSIBLE
GROUNDS OF DOWNWARD DEPARTURES.--Not later
than 180 days after the enactment of this Act, the United States
Sentencing Commission shall-- . . . (2) promulgate, pursuant to
section 994 of title 28, United States Code--. . . (B) a policy

                               8
v. Martinez-Trujillo, 468 F.3d 1266, 1268 (10th Cir. 2006)
(explaining “[w]e cannot say that a disparity is ‘unwarranted’
within the meaning of § 3553(a)(6) when the disparity was
specifically authorized by Congress in the PROTECT Act”);
United States v. Mejia, 461 F.3d 158, 163 (2d Cir. 2006)
(stating “Congress expressly approved of fast-track programs
without mandating them; Congress thus necessarily decided
that they do not create the unwarranted sentencing disparities
that it prohibited in Section 3553(a)(6)”); United States v.
Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (explaining
“Congress must have thought the disparity warranted when it
authorized early disposition programs without altering §
3553(a)(6)”); United States v. Castro, 455 F.3d 1249, 1252
(11th Cir. 2006) (finding “[w]hen Congress directed the
Sentencing Commission to allow the departure for only
participating districts . . . [it] implicitly determined that the
disparity was warranted”); United States v. Hernandez-
Fierros, 453 F.3d 309, 314 (6th Cir. 2006) (explaining the
programs do not create unnecessary disparities because
“fast-track guidelines reductions were specifically authorized
by statute due to the unique and pressing problems related to
immigration in certain districts”); United States v. Perez-
Pena, 453 F.3d 236, 243 (4th Cir. 2006) (holding that
“[s]entencing disparities between defendants receiving


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. . ..”


                                9
fast-track downward departures under the PROTECT Act and
those not receiving such departures are ‘warranted’ as a
matter of law”); United States v. Marcial-Santiago, 447 F.3d
715, 718 (9th Cir. 2006) (explaining “[i]n light of Congress’s
explicit authorization of fast-track programs in the
PROTECT Act, we cannot say that the disparity between
Appellants’ sentences and the sentences imposed on
similarly-situated defendants in fast-track districts is
‘unwarranted’”); United States v. Martinez-Martinez, 442
F.3d 539, 542 (7th Cir. 2006) (concluding “[g]iven Congress’
explicit recognition that fast-track procedures would cause
discrepancies, we cannot say that a sentence is unreasonable
simply because it was imposed in a district that does not
employ an early disposition program”); United States v.
Sebastian, 436 F.3d 913, 916 (8th Cir. 2006) (explaining
“Congress and the President, by directing that the Sentencing
Commission provide for guideline departures in certain
judicial districts, concluded that the advantages stemming
from fast-track programs outweigh their disadvantages, and
that any disparity that results from fast-track programs is not
‘unwarranted.’”) (internal quotation and citation omitted); see
also United States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st
Cir. 2006) (not addressing disparity issue directly, but finding
“[w]hether it would even be permissible to give a lower
sentence on the ground [of a fast-track disparity] is itself an
open question” because such a disparity is the result of a
“congressional choice made for prudential reasons”) (citation
omitted).

      Today we follow the Second and Fourth through
Eleventh Circuits and hold that a district court’s refusal to

                               10
adjust a sentence to compensate for the absence of a fast-
track program does not make a sentence unreasonable. In
addition, we agree with the District Court when, in
addressing Vargas’ § 3553(a)(6) claim, it stated the
following: “[W]hat are prohibited under 3553 are
unwarranted sentencing disparities. And I think the other two
branches of Government, the legislative and executive, have
made it clear that in their view these are warranted sentencing
disparities.” App. at 130-31 (emphasis added). That is, we
agree that any sentencing disparity authorized through an act
of Congress cannot be considered “unwarranted” under §
3553(a)(6).

       There are additional reasons why the District Court
was correct in refusing to adjust its sentence to compensate
for the absence of a fast-track program. As previously noted,
§ 3553(a)(6) provides that, in sentencing defendants, courts
consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct.” This Court, in United States v.
Charles, 467 F.3d 828, 833 n.7 (3d Cir. 2006), placed the
burden on the defendant to demonstrate similarity by showing
that other defendants’ “circumstances exactly paralleled” his.
There 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.11 Furthermore, the


       11
        While our discussion concerns sentences imposed on
defendants in other cases, we have previously spoken with
regard to co-defendants in the same case. “Although § 3553

                              11
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. A court should not create its own fast-track
program or substitute its own sentencing guidelines for those
of the Sentencing Commission. See United States v. Gunter,
462 F.3d 237, 249 (3d Cir. 2006) (explaining that a court
cannot “reject the [Guidelines’] 100:1 [crack to powder] ratio
and substitute its own”).

       We note additionally that we review sentences solely
for reasonableness. Cooper, 437 F.3d at 327. Accordingly,
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), “we will tolerate
statutory sentencing disparities so long as a judge
demonstrates that he or she viewed the Guidelines as advisory
and reasonably exercised his or her discretion . . . .” Charles,
467 F.3d at 833 (citing United States v. Gunter, 462 F.3d
237, 248-49 (3d Cir. 2006)). As explained below, 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.


does not require district courts to consider sentencing disparity
among co-defendants, it also does not prohibit them from doing
so . . . where co-defendants are similarly situated.” United
States v. Parker, 462 F.3d 273, 277-78 (3d Cir. 2006).

                               12
       B. Failure to Consider Section 3553(a) Factors

       Vargas next contends that the District Court erred by
conflating his request for a downward departure under §
3553(b) with his request for a variance under § 3553(a).
Consequently, he claims the District Court failed to
appropriately consider his variance request. Because we find
the District Court properly considered both of Vargas’
requests, we must reject this claim.

       In Cooper, we explained that, in the wake of Booker,
to determine if a district court acted reasonably in imposing a
sentence, we first consider whether the court exercised its
discretion by considering the relevant § 3553(a) factors.
Cooper, 437 F.3d at 329 (citation omitted). Specifically, we
look to the record to see if the court gave “meaningful
consideration” to the § 3553(a) factors and to any meritorious
grounds properly raised by the parties. Id. However, we do
not require the court to “discuss and make findings as to each
of the § 3553(a) factors if the record makes clear the court
took the factors into account in sentencing.” Id. (citation
omitted).

        We next ascertain whether the factors were
“reasonably applied to the circumstances of the case.” Id. at
330. That is, we look to whether the reasons for the sentence
imposed “are logical and consistent with the factors set forth
in section 3553(a).” Id. (quoting United States v. Williams,
425 F.3d 478, 481 (7th Cir. 2005)). In doing this, we show
great deference to the trial court, recognizing that it is in the
best position to tailor a sentence to a particular defendant and

                               13
his offense. Id. Furthermore, 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.” Id. at 330 n.8
(citation omitted).

       Vargas contends the District Court did not exercise its
discretion and effectively treated the Guidelines as mandatory
by exclusively analyzing his request for a lesser sentence as a
downward departure under § 3553(b). As evidence of this,
Vargas points to the following two statements by the District
Court:

       On your 3553 sentencing guideline arguments, I’ve - -
       I thought about this a good deal. And this is a strict
       liability crime. And I think what the Government has
       argued, which is that with a strict liability crime,
       whether or not the defendant had a laudable or a non-
       laudable motivation, shouldn’t be considered by me . .
       . I don’t think the guidelines allow me to depart for
       that reason. To downward depart for that reason is
       what I’m saying.

       As for the disparities, what are prohibited under 3553
       are unwarranted sentencing disparities. And I think the
       other two branches of Government, the legislative and
       the executive, have made it clear that in their view
       these are warranted sentencing disparities. And so for
       that reason, also, I don’t believe this falls outside the


                              14
       heartland12 and I am rejecting your argument.

App. at 129-30, 130-31.

        Vargas contends the first of these statements, coupled
with the failure of the District Court to clearly and explicitly
reconsider Vargas’ family circumstances under § 3553(a)
later in the hearing, demonstrates the District Court did not
give “meaningful consideration” to these circumstances under
§ 3553(a). In addition, he contends the second statement
indicates the District Court erroneously imposed on Vargas
an additional requirement for a variance under § 3553(a), i.e.,
that he establish his circumstances as being outside those
considered by the Sentencing Commission when it created
the Guidelines.

       The sentencing hearing transcript shows that the
District Court’s analysis of Vargas’ downward departure and
variance requests was not well organized. In part, this poor
organization is the result of the Court and counsel not using
language that clearly distinguishes between a downward
departure and a variance. We are well aware that Vargas’
sentencing took place in January 2006 and the District Court
and counsel did not have the benefit of our opinion in United


       12
         The term “outside the heartland” refers to a situation of
a particular defendant that may warrant a downward departure
under § 3553(b) because it was not contemplated by the
Sentencing Commission in fashioning the Guidelines. See
Koon, 518 U.S. at 93-96.

                               15
States v. Vampire Nation, 451 F.3d 189, 195 n.2 (3d Cir.
2006) (adopting the term “variance”). Under such
circumstances, we will look at the transcript to determine if
the Court was aware of the difference between a departure
and what we now characterize as a variance.

        One of the root causes of the hearing’s lack of
organization was Vargas’ own attorney who, in attempting to
focus the District Court’s attention on the § 3553(a)
sentencing factors, used the term “downward departure” and
seemed to reference an example of a downward departure:
“Your Honor, addressing now sentencing factors. Again, I
reiterate, . . . [after Booker] the guidelines for reentry have
been adjusted and factor in a number of things that, to me, are
not strict liability. . . In fact, [the government’s attorney] and
I have had a case where we had a downward departure,
because the person came back to save his sexually abused
daughter.” App. at 135. Confusing arguments like this
obviously made it difficult to understand Vargas’ § 3553(a)
arguments and led the District Court to focus much of its
analysis on his § 3553(b) downward departure request.13

       Despite the lack of organization of the Court’s


       13
          “[C]ounsel for the parties should clearly place the
sentencing grounds they are raising on the record at the time of
the sentencing hearing. The court is not required to manufacture
grounds for the parties, or search for grounds not clearly raised
on the record in a concise and timely manner.” United States v.
Dragon, 471 F.3d 501, 505 (3d Cir. 2006).

                               16
discussion and the parties’ mixed statements about departures
and variances, the full record shows that the District Court
ultimately engaged in an analysis that comports with Cooper.
It is clear the Court meaningfully considered “the nature and
circumstances of [Vargas’] offense and [his] history and
characteristics.” 18 U.S.C. § 3553(a)(1). It heard testimony
from Vargas and his wife about the circumstances
surrounding his illegal reentry and demonstrated that it
understood these circumstances throughout the sentencing
hearing.

        We have repeatedly held that district courts are under
no obligation “to routinely state by rote that they have read
the Booker decision or that they know the sentencing
guidelines are now advisory.” Cooper, 437 F.3d at 329; see
also United States v. Dragon, 471 F.3d 501, 505 (3d Cir.
2006); Charles, 467 F.3d at 831; United States v. Jackson,
467 F.3d 834, 841 (3d Cir. 2006); United States v. Severino,
454 F.3d 206, 213 (3d Cir. 2006). Nevertheless, although it
was not required to do so, the District Court in this case
expressly noted that the Guidelines were advisory. App. at
130-31. Furthermore, although the District Court did not use
the word “variance” and did not vary its sentence from the
advisory Guidelines range, it clearly demonstrated that it
knew its sentence could vary from the advisory Guidelines
range when it stated that “this sentence is the sentence that I
would impose, independent of what the guidelines call for.”
App. at 140. It is also clear the District Court reasonably
applied the § 3553(a) factors to the circumstances of Vargas’
case. It found that Vargas’ knife-point robbery conviction in
August 2000 was too serious to be offset by considerations

                              17
for his personal circumstances. See id. (“I also considered the
following factors important[:] . . . you have one prior adult
conviction for a crime of violence. A very serious crime.”)
This finding is logical and consistent with the § 3553(a)
factors. Accordingly, we reject Vargas’ argument that the
District Court violated Booker and Cooper by not
appropriately considering the § 3553(a) factors when
sentencing him.

                C. Downward Departure Error

       Vargas also contends the District Court erred when it
ruled that it lacked authority to grant his motion for a
downward departure. Because we find the District Court
understood its authority and exercised its discretion in ruling
on this motion, we reject Vargas’ contention.

       Although the Supreme Court in Booker excised part of
two statutory provisions, 18 U.S.C. §§ 3553(b)(1) and
3742(e), it left in tact the rest of § 3553(b), which provides
for departures, as well as U.S.S.G. § 5K2.0, which also
pertains to departures. See Booker, 543 U.S. at 259, 125 S.Ct.
738. Accordingly, in Cooper, we applied our existing case
law to court decisions concerning departures. Cooper, 437
F.3d at 332-33. While it may be that the flexibility14 a


       14
         For instance, we have held that the notice requirement
of Fed. R. Crim. P. 32(h), and also certain ratcheting procedures
which apply to departures, do not apply to variances. United
States v. Colon, — F.3d —, 2007 WL 210368, at *4

                               18
variance affords will cause a decline in the use of traditional
departures, the law still provides for departures, and we
decline to find that they are obsolete or replaced. Jackson,
467 F.3d at 838 n.5 (citing United States v. Mohamed, 459
F.3d 979, 985-87 (9th Cir. 2006); United States v. Arnaout,
431 F.3d 994, 1003-04 (7th Cir. 2005)).

       We do not have jurisdiction to review discretionary
decisions by district courts to not depart downward. Cooper,
332 F.3d at 332 (explaining, “[w]e follow the Courts of
Appeals for the First, Sixth, Eighth, Tenth, and Eleventh
Circuits in declining to review, after Booker, a district court’s
decision to deny departure”). Jurisdiction arises, however, if
the district court’s refusal to depart downward is based on the
mistaken belief that it lacks discretion to do otherwise. See
United States v. Dominguez, 296 F.3d 192, 194-95 (3d Cir.
2002) (explaining “[o]ur review of the District Court’s legal
conclusion that it lacked discretion to consider a departure
based on family circumstances is de novo”).

         Vargas argues this Court has jurisdiction over his
matter because the District Court misapprehended its own
authority and wrongfully thought it lacked discretion to
depart downward. In support of this argument, Vargas cites
the following statement by the District Court: “[T]his is a
strict liability crime. . . . I don’t think the guidelines allow me
to depart for that reason.” App. at 130.


(3d Cir. 2006); United States v. Vampire Nation, 451 F.3d 189,
197 (3d Cir. 2006).

                                19
       “[W]e will not elevate form over substance.” Dragon,
471 F.3d at 506. We will look at the substance of what the
court did in the entire sentencing transcript. Although the
District Court made the above isolated remark, it later
effectively corrected itself15 and demonstrated at length that it
clearly understood its authority to depart during the following
colloquy with defense counsel:

       Defense Counsel: In fact, [the government’s attorney]
       and I have had a case where we had a downward
       departure, because the person came back to save his
       sexually abused daughter. So I disagree with the strict
       liability interpretation that we are apparently operating
       under today. Having said that - -

       Court: It’s - - it is a strict liability offense. I just - - I
       don’t think the circumstances presented here warrant a
       downward departure. There . . . is this safety valve in
       the sentencing guidelines. I just don’t think you’ve
       shown that you’re entitled to that downward departure
       --


       15
          Taken alone, the remark could be inconsistent with our
holding in United States v. Dominguez, 296 F.3d 192 (3d Cir.
2002). We reiterate again that, when a court finds it has the
discretionary power to depart but exercises its discretion not to,
it is important to note this on the record. It is usually enough for
a court to simply state it is aware of its authority to depart, but
that it chooses not to (or words to that effect). United States v.
Minutoli, 374 F.3d 236, 239 (3d Cir. 2004).

                                20
      Defense Counsel: Right.

      Court: - - departure. I’m not saying the case couldn’t
      come along where you might be.

      Defense Counsel: Right.

      Court: I just don’t think in this case you can. The mere
      fact that he apparently came into the country to be with
      his wife . . . is not enough for a downward departure.
      The case that you’ve just described might indeed be
      enough for a downward departure.

App. at 135-36 (emphasis added).

        It is clear from this colloquy that the District Court
understood its authority to depart downward. It explained that
Vargas’ family circumstances were not sufficient to
“warrant” a departure. Furthermore, it cited an example of a
situation in which it might be inclined to grant a departure
(i.e., when an alien reenters the U.S. to save a sexually
abused daughter). On this record, we find the District Court
exercised discretion. Accordingly, we have no jurisdiction
under Cooper to review its refusal to depart downward.

      D. Claims Under the Fifth and Sixth Amendments

       Finally, Vargas claims his being indicted under 8
U.S.C. § 1326(a) and sentenced as an aggravated felon under
8 U.S.C. § 1326(b)(2) violates his Fifth Amendment right to
be subject to a maximum punishment based solely on facts

                             21
charged in an indictment and his Sixth Amendment right to
trial by jury. In light of the Supreme Court’s still-binding
decision in Almendarez-Torres v. United States, 523 U.S.
224, 118 S.Ct. 1219 (1998) and our decision in United States
v. Ordaz, 398 F.3d 236 (3d Cir. 2005), we reject this claim.

       As described above, § 1326(a) makes it unlawful for
an alien who has been deported to reenter the country, setting
a maximum penalty of two years’ imprisonment for this
crime. Section 1326(b)(2) increases the authorized prison
sentence for the § 1326(a) crime to 20 years if the alien has
previously been convicted of an aggravated felony.16

        Almendarez-Torres involved an alien who, like
Vargas, had been indicted under § 1326(a) and sentenced
under § 1326(b)(2). Almendarez-Torres, 523 U.S. at 227. The
alien challenged his sentence, essentially claiming subsection
(b)(2) constituted its own crime and not simply a sentencing
factor under subsection (a). Id. Consequently, he argued he
could not be sentenced to up to 20 years in prison as
permitted in subsection (b)(2) because a key element of the
subsection (b)(2) crime—the existence of a past aggravated
felony—was not charged in his indictment. Id. Instead, he
claimed the maximum sentence he could face was the two
years set forth in subsection (a). Id. (The District Court had
sentenced the alien to 85 months’ imprisonment. Id.) In
rejecting the alien’s claim, the Supreme Court held that
subsection (b)(2) set forth a sentencing factor for the


      16
           For the text of these statutes, see infra note 1.

                                  22
subsection (a) offense. Id. at 235. As a result, the fact of the
alien’s multiple prior convictions was not an element of the
subsection (a) crime and it did not have to be charged in the
alien’s indictment to be factored into his sentence. Id.

         The holding of Almendarez-Torres has since been
questioned by the Supreme Court. See, e.g., Apprendi v. New
Jersey, 530 U.S. 466, 489, 120 S.Ct. 2348 (2000) (explaining
“it is arguable that Almendarez-Torres was incorrectly
decided”); Shepard v. United States, 544 U.S. 13, 27, 125
S.Ct. 1254 (2005) (Thomas, J., concurring) (arguing “a
majority of the Court now recognizes that Almendarez-Torres
was wrongly decided”). Despite these questions, the Supreme
Court has yet to overrule the case. As a consequence, it
continues to bind our decisions. See Ordaz, 398 F.3d at 241
(explaining “[t]he holding in Almendarez-Torres remains
binding law”).

        Vargas concedes that the holding in Almendarez-
Torres is fatal to his Fifth Amendment claim (involving his
indictment), and he admits raising the issue only to preserve it
for further review. He maintains, however, that Almendarez-
Torres does not address his claim under the Sixth
Amendment that his prior conviction must be proven to a jury
in order to be considered at sentencing. As we explained in
Ordaz, however, Almendarez-Torres addressed this argument
as well. Ordaz, 398 F.3d at 240 (explaining the “argument
that the fact of a prior conviction must be found by a jury was
rejected by the Supreme Court in Almendarez-Torres”).
Accordingly, the District Court properly considered Vargas’
prior felony in sentencing him and his sentence is not

                               23
constitutionally infirm.

                            IV.

       We have considered all other arguments advanced by
the parties and conclude that no further discussion is
necessary. Accordingly, the judgment of the District Court
will be affirmed.




                            24
