                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          May 16, 2012
                                      TENTH CIRCUIT
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

              Plaintiff – Appellee,
                                                              No. 10-1565
v.                                                  (D.C. No. 1:10-CR-00332-PAB-1)
                                                               (D. Colo.)
HUGO SALAZAR-OROZCO, a/k/a Pedro
Flores-Bravo, a/k/a Daniel Perez-Gomez,

              Defendant - Appellant.




                              ORDER AND JUDGMENT*


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.


       Hugo Salazar-Orozco pled guilty, under a plea agreement, to unlawful reentry

after a felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(1). At sentencing, the

district court rejected his request for a downward variance to align his sentence with



       *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
those defendants sentenced in districts with fast-track disposition programs. Although

sentences of defendants in such programs are typically more lenient, the district court

reasoned Salazar-Orozco’s extensive criminal history would make him ineligible for a

fast-track disposition even in those districts in which it was available. Therefore, it

concluded there was no need to align his sentence with those defendants who could take

advantage of such a program. The district court sentenced him to 27 months

imprisonment.

       According to Salazar-Orozco, sentencing disparities “arising from the lack of ‘fast

track’ programs in some districts can be the basis of a downward variance from the

advisory sentencing guideline range.”1 (Appellant’s Br. 6.) He requested we postpone

our decision until another panel addressed the issue in another pending case. That case

has now been decided. See United States v. Diaz-Devia, 425 F. App’x 764 (10th Cir.)

cert. denied, 132 S. Ct. 1585 (2012).2 The Diaz-Devia panel did not answer the question

Salazar-Orozco raises here, see id., but another panel did. United States v. Lopez-Macias,

661 F.3d 485 (10th Cir. 2011).

       In Lopez-Macias, we reversed our circuit precedent. Id. at 491-92. Our precedent


       1
         We review sentences for substantive and procedural reasonableness under the
abuse of discretion standard. United States v. Lopez-Macias, 661 F.3d 485, 488-89 (10th
Cir. 2011). A challenge to “the method by which the sentence as calculated,” is a
challenge to the procedural reasonableness of the sentence. Id. at 489. In such cases,
“we review the district court's legal conclusions . . . de novo and its factual findings for
clear error.” Id.
       2
        Because “[u]npublished decisions are not precedential,” we cite this decision for
informational purposes only. 10th Cir. R. 32.1(A).


                                            -2-
precluded a district court from considering sentencing disparities between fast-track

districts and those without fast-track programs. United States v. Martinez–Trujillo, 468

F.3d 1266, 1268 (10th Cir. 2006). The Lopez-Macias panel concluded this holding was

no longer viable in light of Kimbrough v. United States, 552 U.S. 85 (2007).3 Now “a

district court in a non-fast-track district has the discretion to vary from a defendant’s

applicable guideline range based on fast-track sentence disparities.” Lopez-Macias, 661

F.3d at 492.

       Nevertheless, Lopez-Macias is inapplicable here. The district court did not

conclude it lacked authority to grant the requested variance. Rather, it refused to adjust

Salazar-Orozco’s sentence because his criminal history rendered him ineligible for a fast-

track program in any event. Salazar-Orozco does not contest that finding nor does he

raise in cogent argument any other error. His sentence was procedurally correct and

substantially reasonable.

       AFFIRMED.

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




       3
         “In Kimbrough . . . the Supreme Court held that a district court had the discretion
to vary from the recommended guideline range . . . where the court determined such
range was greater than necessary to achieve the sentencing objectives of § 3553(a).”
Lopez-Macias, 661 F.3d at 489-90. “In other words, because the sentencing guidelines
are advisory, district courts have the discretion to vary from those guidelines based on
policy disagreements with them.” Id. at 490.


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