                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-2264
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

ANGEL PACHECO-DIAZ,
                                           Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
        No. 04 CR 866—Samuel Der-Yeghiayan, Judge.
                         ____________
 ARGUED NOVEMBER 27, 2006—DECIDED OCTOBER 23, 2007
                   ____________


 Before EASTERBROOK, Chief Judge, and ROVNER and
SYKES, Circuit Judges.
  ROVNER, Circuit Judge. Angel Pacheco-Diaz (“Pacheco”)
was convicted of one count of reentering the United States
after previously having been deported, in violation of
8 U.S.C. §§ 1326(a) and (b)(2). In calculating Pacheco’s
sentence, the district court applied an eight-level en-
hancement because he had a prior conviction for an
aggravated felony. After allowing a two-level reduction
for acceptance of responsibility, the court declined to
reduce Pacheco’s sentence an additional level under that
same provision. The court also refused to adjust Pacheco’s
sentence downward for what he argued was an
unrwarranted disparity compared to similarly situated
2                                               No. 05-2264

defendants who were sentenced in “fast-track” jurisdic-
tions. The court sentenced Pacheco on the high end of the
resulting sentencing range, to a term of forty-six months’
imprisonment. We affirm.


                             I.
  The indictment alleged that Pacheco, an alien, was
deported on October 10, 2003, following a conviction for
an aggravated felony. On or about September 1, 2004, he
was found in Waukegan, Illinois, having reentered the
United States without the express consent of the Attor-
ney General, in violation of 8 U.S.C. §§ 1326(a) and (b)(2).
Pacheco waived his right to a jury trial and opted instead
for a bench trial on stipulated facts. The parties stipu-
lated that Pacheco was convicted on or about January 24,
2002, of possession of marijuana, in violation of 720 ILCS
550/4, and criminal damage to government property, in
violation of 720 ILCS 5/21-4. Pacheco admitted that these
crimes are felonies under Illinois law, and the government
conceded that the marijuana possession would be a
misdemeanor under applicable federal law. The parties
did not agree whether the drug offense constituted an
aggravated felony for sentencing purposes. Pacheco
stipulated that, after he served his sentence for these
Illinois crimes, he was deported. He conceded that he
later returned to the United States without the consent
of the Attorney General, and it is that return that makes
up the charges in the present case. In this appeal, Pacheco
contends that his prior Illinois conviction for simple
possession of marijuana is insufficient to trigger the eight-
level enhancement under either of two theories advanced
by the government. He also argues that the district court
misapprehended the scope of its discretion when it de-
clined to further reduce his sentence for acceptance of
responsibility. And finally, he posits that his sentence
No. 05-2264                                                 3

was unreasonable because the court failed to meaning-
fully consider the unwarranted disparity between his
sentence and the sentences of similarly situated defen-
dants in fast-track jurisdictions.


                             A.
   Section 2L1.2 of the Sentencing Guidelines provides
that the base offense level for a violation of 8 U.S.C. § 1326
is eight. If the defendant previously was deported after a
conviction for an aggravated felony, the court is directed
to increase the base offense level by eight levels. U.S.S.G.
§ 2L1.2(b)(1)(C). The Application Notes to the guideline
provide that, for the purposes of subsection (b)(1)(C), the
term “aggravated felony” has the meaning given that term
in 8 U.S.C. § 1101(a)(43). That section defines an extensive
list of crimes as aggravated felonies, but the only sub-
section relevant to Pacheco is 1101(a)(43)(B), which applies
to “illicit trafficking in a controlled substance (as defined
in section 802 of Title 21), including a drug trafficking
crime (as defined in section 924(c) of Title 18).” Section
924(c) defines the term “drug trafficking crime” as, among
other things, “any felony punishable under the Controlled
Substances Act (21 U.S.C. § 801 et seq.).” No one disputes
that marijuana is a controlled substance. The government
and the probation officer preparing the Presentence Report
(“PSR”) both suggested to the district court that Pacheco’s
January 2002 conviction for possession of marijuana
warranted an eight-level increase as a drug trafficking
crime. The district court agreed, finding two alternate
justifications for the increase under section 2L1.2. First,
the court parsed the phrase “felony punishable under
the Controlled Substances Act” and found that the Janu-
ary 2002 conviction was a felony under Illinois law. The
court found that the same conduct was also punishable
under the Controlled Substances Act (“CSA”), albeit as
4                                              No. 05-2264

a misdemeanor. The court thus found this conviction
met the definition of a drug trafficking crime because it
was a felony and it was punishable under the CSA. In the
alternative, the court found, Pacheco’s January 2002
conviction for marijuana possession would be treated as
a federal felony under the recidivist provision of 21 U.S.C.
§ 844(a). In October 2000, Pacheco pled guilty to another
charge of possession of marijuana. Pursuant to section
844(a), the court held, the second possession conviction
in January 2002 could have been treated as a felony
punishable under the CSA. The court therefore concluded
that the eight-level enhancement was appropriate.
   Pacheco argued that the word “felony” could not be
extracted from the phrase “felony punishable under the
Controlled Substances Act” in this artificial manner. He
suggested that the state’s classification of the crime
was irrelevant and that only crimes that would con-
stitute felonies under federal law could trigger the eight-
level increase. The Supreme Court recently agreed, hold-
ing that “a state offense constitutes a ‘felony punishable
under the Controlled Substances Act’ only if it proscribes
conduct punishable as a felony under federal law.” Lopez
v. Gonzales, 127 S. Ct. 625, 633 (2006). Thus, the district
court’s first rationale for the eight-level increase was
in error. However, the district court’s alternate holding,
that the January 2002 marijuana possession would be
treated as a felony under the recidivist provision in light
of the October 2000 possession conviction, passes muster
under Lopez and our prior holdings. Specifically, the
Lopez Court noted in footnote six that “Congress did
counterintuitively define some possession offenses as
‘illicit trafficking.’ Those state possession crimes that
correspond to felony violations of one of the three statutes
enumerated in § 924(c)(2), such as possession of cocaine
base and recidivist possession, see 21 U.S.C. § 844(a),
clearly fall within the definitions used by Congress in 8
No. 05-2264                                                 5

U.S.C. § 1101(a)(43)(B) and 18 U.S.C. § 924(c)(2), regard-
less of whether these federal possession felonies or
their state counterparts constitute ‘illicit trafficking in a
controlled substance’ or ‘drug trafficking’ as those terms
are used in ordinary speech. But this coerced inclusion of
a few possession offenses in the definition of ‘illicit traf-
ficking’ does not call for reading the statute to cover
others for which there is no clear statutory command to
override ordinary meaning.” Lopez, 127 S. Ct. at 630 n.6.
The Court thus acknowledged that, although it seemed
counterintuitive to classify recidivist possession as “illicit
trafficking,” Congress had clearly done so.
  The circuits are split on the use of the recidivist provi-
sion at issue here. The Ninth Circuit stands alone in
holding that the district court must consider the sen-
tence available for the crime itself, without considering
separate recidivist enhancements, when determining
whether the crime would be an aggravated felony under
federal law. United States v. Arellano-Torres, 303 F.3d
1173, 1178 (9th Cir. 2002). Thus, when determining
whether a drug offense qualifies as an aggravated felony,
the courts of the Ninth Circuit “disregard § 844’s penalties
for repeat offenders.” Id. The Second, Fifth and Sixth
Circuits came to the opposite conclusion; all apply the
recidivist provisions of section 844(a) in determining
whether a defendant’s prior state misdemeanor con-
viction could be considered an aggravated felony for the
purposes of guideline 2L1.2. See United States v. Simpson,
319 F.3d 81, 85-86 (2d Cir. 2002); United States v.
Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005),
cert. denied, 546 U.S. 1137 (2006); United States v.
Palacios-Suarez, 418 F.3d 692, 700 (6th Cir. 2005).
  This latter view is more consistent with our holding
in United States v. Perkins, 449 F.3d 794 (7th Cir.), cert.
denied, 127 S. Ct. 330 (2006). In Perkins, the issue was
6                                              No. 05-2264

whether a defendant could be classified as an armed career
criminal under 18 U.S.C. § 924(e), based on three prior
state court convictions for “serious drug offense[s].” 449
F.3d at 795. The term “serious drug offense” included
“an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture
or distribute, a controlled substance . . . for which a
maximum term of imprisonment of ten years or more is
prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii); Perkins,
449 F.3d at 796. Under state law, Perkins faced a maxi-
mum term of seven years for his first conviction for
delivering less than one gram of cocaine, in violation of
720 ILCS 570/401(d). But the maximum increased to
fourteen years for his second conviction. Perkins argued
that the government could not show that he would have
faced that fourteen year maximum for his subsequent
offense because state law required judges to inform
persons pleading guilty about the extra penalties for
recidivism, and the papers submitted to the federal dis-
trict court did not show that Perkins had received that
notice. 449 F.3d at 796.
  We rejected that argument for three reasons, one of
which is especially relevant here. Relying on the Supreme
Court’s decision in Shepard v. United States, 544 U.S. 13
(2005), and Taylor v. United States, 495 U.S. 575 (1990),
we held that federal recidivism statutes like section 924(e)
“call for an evaluation of the crime of conviction, not the
defendant’s actual conduct or the details of the proceed-
ings in state court. Whether a state conviction justifies a
federal recidivism enhancement depends on the ele-
ments of the offense and the terms of the indictment or
information.” Perkins, 449 F.3d at 796. See also Taylor,
495 U.S. at 602 (a court sentencing under the ACCA
could look to statutory elements, charging documents,
and jury instructions to determine whether an earlier
conviction after trial was for generic burglary); Shepard,
No. 05-2264                                            7

544 U.S. at 16 (a later court determining the character
of an admitted burglary is generally limited to examining
the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
assented). Perkins stood convicted of two drug crimes
that under state law exposed him to fourteen years in
prison, and that was the number to use to determine
whether his drug crimes were “serious” for the purposes
of section 924(e)(1). See also United States v. Henton,
374 F.3d 467, 470 (7th Cir. 2004) (it is irrelevant under
ACCA whether a defendant who is eligible for an ex-
tended sentence under a recidivist provision actually
received an extended sentence; what matters is the
sentence that the state statute made possible).
  This same reasoning applies to the recidivist provision
under section 844(a). Had Pacheco been charged in fed-
eral court with his second drug possession charge, he
would have been eligible for a recidivist enhancement
under section 844(a). The recidivist enhancement would
have exposed Pacheco to a possible sentence of two years’
imprisonment, a felony under federal law. As a felony
punishable under the Controlled Substances Act, the
second state law possession conviction would constitute
a “drug trafficking crime” under section 924(c) had it
been charged in federal court. In turn, that conviction
would be considered an aggravated felony as that term is
defined in 8 U.S.C. § 1101(a)(43)(B), thereby warranting
an eight-level increase under guideline 2L1.2(b)(1)(C).
Thus, the district court’s second rationale correctly
supported the eight-level increase.


                           B.
  The government agreed that Pacheco was entitled to
a two-point acceptance of responsibility reduction be-
8                                                     No. 05-2264

cause he agreed to a bench trial on stipulated facts.
Pacheco contends on appeal that he was entitled to a third
point. Under the Prosecutorial Remedies and Other Tools
to end the Exploitation of Children Today Act of 2003
(“PROTECT Act”), the third point may be granted only
upon a motion by the government.1 The government


1
  See Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003, Pub. L. No. 108-21,
§ 401(g) (2003). That section directly amends the relevant
guidelines provisions:
    (g) REFORM OF GUIDELINES GOVERNING ACCEP-
    TANCE OF RESPONSIBILITY.—Subject to subsection (j),
    the Guidelines Manual promulgated by the Sentencing
    Commission pursuant to section 994(a) of title 28, United
    States Code, is amended—
    (1) in section 3E1.1(b)—
    (A) by inserting “upon motion of the government stating
    that” immediately before “the defendant has assisted
    authorities"; and
    (B) by striking “taking one or more” and all that follows
    through and including “additional level” and insert “timely
    notifying authorities of his intention to enter a plea of guilty,
    thereby permitting the government to avoid preparing
    for trial and permitting the government and the court to
    allocate their resources efficiently, decrease the offense
    level by 1 additional level”;
    (2) in the Application Notes to the Commentary to section
    3E1.1, by amending Application Note 6—
    (A) by striking “one or both of ”; and
    (B) by adding the following new sentence at the end: “Be-
    cause the Government is in the best position to determine
    whether the defendant has assisted authorities in a manner
    that avoids preparing for trial, an adjustment under sub-
    section (b) may only be granted upon a formal motion by
    the Government at the time of sentencing.”; and
                                                 (continued...)
No. 05-2264                                                  9

declined to move for the third point because of the effort
expended preparing for trial before the agreement on a
stipulated bench trial was reached. Pacheco argues that
the district court misapprehended its post-Booker discre-
tion when it stated that, in calculating Pacheco’s guide-
lines sentence, it could not grant an additional one point
reduction for acceptance of responsibility without a
motion from the government. See United States v. Booker,
543 U.S. 220 (2005).
  At Pacheco’s sentencing hearing, the government told the
court that it had mistakenly indicated in its United States’
Sentencing Memorandum that a three-point reduction for
acceptance of responsibility was appropriate. In fact, the
government intended to agree only to a two-point reduc-
tion. See R. 24, at 6. The district court sought clarification,
commenting, “The one-point reduction obviously has to
made by—on the motion of the government. I was merely
wondering what was your thinking about going two-point
reduction for acceptance of responsibility and not going
that extra one point.” Sentencing Tr. at 12. The govern-
ment explained that it expended a great deal of time and
effort in reaching the agreement for a stipulated trial with
Pacheco, and that the government had been forced by the
looming trial date to prepare for trial in case an agreement
could not be reached. The court reiterated the necessity of
the government’s motion, stating, “I cannot tell the
government to make a motion for one further point of
reduction. That’s up to the government and you have
explained why you did not move.” Sentencing Tr. at 14.
The court then turned to defense counsel and asked if
she had any comments on the issue of acceptance of



1
    (...continued)
       (3) in the Background to section 3E1.1, by striking “one
       or more of ”.
10                                             No. 05-2264

responsibility, and she replied, “No, your Honor.” Sentenc-
ing Tr. at 15.
  That answer was consistent with the position Pacheco
had taken in his Objections to the PSR and Sentencing
Memorandum (hereafter “Objections”). See R. 22. In his
Objections, Pacheco stated, “Parties also agree that Mr.
Pacheco-Diaz, despite requesting a bench trial, has
accepted responsibility for his conduct under the lang-
uage of § 3E1.1(a), as he did not dispute the key elements
of the crime, but rather, proceeded in order to preserve
a legal issue. PSR at 2. Therefore, a 2 level decrease in
his offense level is appropriate in accord with the ‘Accep-
tance of Responsibility’ section of the Guidelines.” R. 22,
at 4. At the sentencing hearing, Pacheco’s counsel argued
that, in fixing a sentence within the guidelines range, the
court could consider the fact that Pacheco did not re-
ceive that third point reduction for acceptance of responsi-
bility. Counsel asked the court not to punish Pacheco for
the time and effort it took the lawyers to reach the agree-
ment for a stipulated trial. Before ruling, the court
stated again, “[T]here is a two-level decrease because of
adjustment of acceptance of responsibility and there’s no
dispute about that.” Sentencing Tr. at 29. After consider-
ing all of the arguments of counsel and the section 3553(a)
factors, the court sentenced Pacheco to a term of forty-six
months’ imprisonment, at the high end of the guidelines
range.
  Pacheco’s counsel did not argue at the sentencing
hearing that the court was misapprehending its discre-
tion when it stated that the third point could be granted
only on the motion of the government. At the sentencing
hearing, Pacheco’s counsel remained silent when asked
about the third point. Indeed, Pacheco affirmatively
agreed in his Objections that a two-level decrease for
acceptance of responsibility was appropriate. Ordinarily,
this affirmative concession would constitute waiver of
No. 05-2264                                               11

the issue and that would preclude our review. United
States v. Murphy, 406 F.3d 857, 860 (7th Cir. 2005). In this
case, however, the government has waived waiver by
asserting that we should review the sentence for reason-
ableness and by addressing the issue on the merits.
Murphy, 406 F.3d at 860. Specifically, the government
argues that, after Booker, the district court must, as a
first step, calculate correctly the guidelines sentencing
range and then apply the section 3553(a) factors. Accord-
ing to the government, in correctly calculating the guide-
lines sentence, the court may grant the third point for
acceptance of responsibility only on the motion of the
government. The government is correct that, after Booker,
the first step in sentencing is to calculate correctly the
guidelines range. United States v. McMahan, 495 F.3d 410,
426 (7th Cir. 2007); United States v. Hawk, 434 F.3d 959,
963 (7th Cir. 2006). See also United States v. Rita, 127
S. Ct. 2456 (2007). This court has not yet decided in a post-
Booker setting whether a district court may grant a third
point for acceptance of responsibility absent a motion by
the government. As far as we can tell, every circuit to
consider the issue has agreed with the government’s
position here. See United States v. Chase, 466 F.3d 310,
315 (4th Cir. 2006) (because the guidelines authorize
the third-level reduction only upon motion of the govern-
ment, a district court is correct not to grant the reduction
in the absence of a motion, even following Booker); United
States v. Espinoza-Cano, 456 F.3d 1126, 1134 n.10 (9th
Cir. 2006) (the prerequisite government motion in sub-
section (b) of section 3E1.1 is a statutory requirement
that the district court must apply in its calculations
under the guidelines, regardless of the advisory nature of
the guidelines post- Booker); United States v. Moreno-
Trevino, 432 F.3d 1181, 1185-87 (10th Cir. 2005) (prosecu-
tors retain discretion to move or not move for a third point
acceptance of responsibility reduction post-Booker); United
12                                               No. 05-2264

States v. Smith, 429 F.3d 620, 628 (6th Cir. 2005) (even
after Booker, a district court consulting the guidelines
remains constrained in awarding a § 3E1.1(b) reduction
absent a motion by the government); United States v.
Smith, 422 F.3d 715, 726-27 n.3 (8th Cir. 2005), cert.
denied, 546 U.S. 1127 (2006) (under the PROTECT Act,
there is no basis for a district court to grant the third level
reduction sua sponte). We agree that, in calculating the
correct guidelines range, the district court may not
grant the third level reduction for acceptance of responsi-
bility absent a motion by the government. The govern-
ment expressly declined to move for the third point
reduction and so the district court correctly calculated
the guidelines range here. There is no indication in the
record that, after correctly calculating the guidelines
range, the court then misapprehended its discretion under
Booker when it applied the section 3553(a) factors to
choose a particular sentence. We therefore reject Pacheco’s
claim that the court misunderstood the scope of its au-
thority.


                              C.
  Finally, Pacheco complains that the district court failed
to consider the unwarranted sentencing disparity that
resulted from his lack of access to a fast-track program.
Fast-track programs were created to address the enor-
mous number of illegal reentry cases that occur in certain
border states. As part of the PROTECT Act, Congress
expressly approved the use of these programs, granting
authority to the U.S. Attorney General to create and
implement the programs. United States v. Galicia-
Cardenas, 443 F.3d 553, 555 (7th Cir. 2006). We have
repeatedly rejected arguments that a sentence is unrea-
sonable solely because it was imposed in a jurisdiction
that does not make use of fast-track programs. See United
No. 05-2264                                              13

States v. Roche-Martinez, 467 F.3d 591, 595 (7th Cir.
2006), cert. denied, 127 S. Ct. 1861 (2007) (because Con-
gress contemplated that fast-track programs would create
disparities, a sentence is not unreasonable simply be-
cause it is imposed in a district that does not employ fast-
track programs); Galicia-Cardenas, 443 F.3d at 555 (“[W]e
cannot say that a sentence imposed after a downward
departure is by itself reasonable because a district does
not have a fast-track program . . . .”); United States v.
Martinez-Martinez, 442 F.3d 539, 542 (7th Cir. 2006)
(“Given 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 disposi-
tion program.”). Pacheco gives us no reason to depart
from these prior holdings, and we decline to do so. These
are the only challenges that Pacheco raised to the rea-
sonableness of his within-guidelines sentence. We there-
fore affirm the judgment of the district court.
                                                AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




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