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


7-27-2007

USA v. Heron
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3572




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Recommended Citation
"USA v. Heron" (2007). 2007 Decisions. Paper 686.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/686


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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No. 06-3572

                           UNITED STATES OF AMERICA

                                            v.

                                   RODGER HERON,
                                            Appellant

                  Appeal from the District Court of the Virgin Islands,
                          Division of St. Thomas and St. John
                                     (05-cr-00087)
                       District Judge: Honorable Curtis V. Gómez

                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                  December 8, 2006

            Before: McKEE and BARRY, and STAPLETON, Circuit Judges

                              (Opinion filed July 27, 2007)

                                        OPINION

McKEE, Circuit Judge.

       Rodger Heron appeals the sentence that was imposed following his guilty plea to

charges of illegally reentering the United States following deportation. For the reasons

that follow, we will affirm the judgment of sentence.

                                            I.

       The Government charged Heron in a three-count indictment with using an altered

Jamaican passport to unlawfully reenter the United States in violation of 18 U.S.C. §
1326(a) and (b)(2) and 18 U.S.C. § 1543, and misusing a non-immigrant Visa for entry

into the United States in violation of 18 U.S.C. § 1546(a). After plea negotiations failed,

Heron entered an open guilty plea to all three counts of the indictment.

       Prior to sentencing, Heron filed a motion for: (1) a four-level departure under

U.S.S.G. § 5K3.1 to avoid sentencing disparity with defendants sentenced under fast-

track programs; (2) a downward departure for cultural assimilation; and (3) an additional

point under U.S.S.G. § 3E1.1(b) for extraordinary acceptance of responsibility. The

district court denied the motion and sentenced Heron to a term of imprisonment of forty-

six months.

       Heron concedes that the district court’s Guidelines computations were correct. He

argues the district court should have exercised its discretion under 18 U.S.C. § 3553(a)(6)

to reduce his sentence to mitigate the disparity arising from sentences imposed for illegal

reentry in jurisdictions that have fast-track programs. Heron also argues that the district

court’s failure to adjust his sentence pursuant to U.S.S.G. § 3E1.1 denied him equal

protection of the law.

                                             A.

       Heron’s contention that the court should have adjusted his sentence to eliminate

sentencing disparity arising from fast-track programs in other jurisdictions can readily be

dismissed. We rejected that argument in United States v. Vargas, 477 F.3d 94, 99 (3d

Cir. 2007). There, we “[held] 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

                                              2
unreasonable.” Accordingly, the court did not err in refusing to adjust Heron’s sentence

on that basis.

                                              B.

       In United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), we established a three-

step process for district courts to follow at sentencing: (1) a court must calculate the

correct Guidelines sentence; (2) rule on any motions for departure, stating on the record

whether the motion was granted and explaining how disposition of any motion affects the

calculation; and (3) exercise its discretion by considering the relevant factors set forth

under § 3553(a). Id. at 247. Heron concedes that the court properly calculated his

sentence pursuant to that process here. Nonetheless, Heron argues that the district court

should have exercised its discretion under 18 U.S.C. § 3553(a)(6) to further adjust his

sentence.

       The record here clearly reflects that the district court was fully aware that,

although Heron filed a motion that he cast as a request for a downward departure, he was

actually requesting a favorable exercise of discretion under § 3553(a). The court refused

to exercise its discretion in Heron’s favor. The sentencing hearing here incorporated the

sentencing hearings in the cases of United States v. Freddy Morales-Aponte, and United

States v. Kevin Bryan. After the court heard arguments in Heron’s behalf, the court

referred to the prior sentencing proceedings and stated: “[f]or the same reasons, the

motion is denied.” JA9. This record does not establish that the court was unaware of its

sentencing discretion, the proper role of the Guidelines, or the application of 18 U.S.C. §

                                              3
3553(a). The court simply relied upon the explanations it had previously given for

denying similar arguments of Bryan and Morales-Aponte, and incorporated that rationale

into the record here.

                                             C.

       Heron also argues the district court’s refusal to reduce his offense by one

additional level under U.S.S.G. § 3E1.1(b) violated his right to equal protection of the law

because the Government granted the additional decrease in offense level to others, but

refused to do so for Heron. He does not rest this claim of disparate treatment upon any

suspect classification such as race. Rather, he seems to be arguing that he is entitled to

relief because the Government’s sentencing recommendations under U.S.S.G. § 3E1.1(b)

are inconsistent.

       Pursuant to U.S.S.G. § 3E1.1(b), a defendant’s offense level is decreased one

additional level for exceptional acceptance of responsibility if, among other things, the

Government moves for the adjustment. Despite Heron’s claim that the Government did

not afford him equal treatment in refusing to move for an additional departure under

U.S.S.G. § 3E1.1(b), the transcript of the sentencing hearings of Kevin Bryan and Freddy

Morales-Aponte establish that the Government also refused to move for the additional

reduction in their cases. In fact, during Bryan’s sentencing hearing the court asked the

Assistant United States Attorney why the Government was not willing to move for the

additional departure for him, and the Government explained its reasoning. JA 33-35.

Accordingly, Heron has not established any disparate treatment.

                                              4
                                    II.

For the foregoing reasons, we will affirm the judgment of sentence.




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