                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2009

USA v. Omar Reina
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2417




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                      No. 08-2417
                                      ___________

                          UNITED STATES OF AMERICA


                                           v.

               OMAR REINA, a/k/a Omar Reina Jaramillo, a/k/a Piasa,
                       a/k/a Gordo, a/k/a Fernando Diaz,

                                        Omar Reina,
                                           Appellant
                                   ______________

                            Appeal from the United States
                 District Court for the Eastern District of Pennsylvania
                                    (No. 08-cr-00030)
                   District Court Judge: Honorable Stewart Dalzell

                                     ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   May 20, 2009
                                   ___________

                 Before: RENDELL and GARTH, Circuit Judges, and
                            VANASKIE, District Judge *
                           (Opinion Filed: May 22, 2009)
                                   ___________

                                      OPINION


      *
         The Honorable Thomas I. Vanaskie, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
                                       ___________

GARTH, Circuit Judge:

       Omar Reina (“Reina”) appeals the judgment of sentence entered by the District

Court on May 9, 2008. Reina, a native of Colombia, was arrested on October 23, 2007, in

Philadelphia for conspiracy to distribute, and possession with intent to distribute more

than 100 grams of heroin. Reina had been deported on June 1, 2000, after serving a 60-

month sentence for distributing cocaine and a concurrent 10-year sentence in New Jersey

for possession of cocaine with intent to distribute.

       Reina was indicted in the Eastern District of Pennsylvania for violation of 8 U.S.C.

§§ 1326(a) and (b)(2) for illegal reentry into the United States after deportation.1 Reina

pleaded guilty on February 5, 2008.

       Reina’s base offense level was 8; the District Court imposed a 16-level increase

(U.S.S.G. § 2L1.2(b)(1)(A)) because Reina “was deported . . . after a conviction for a . . .

drug trafficking offense for which the sentence imposed exceeded 13 months.” After a 3-

point reduction for acceptance of responsibility (U.S.S.G. § 3E1.1), his offense level was

21. With a criminal history category of V, Reina’s Guidelines range was 70-87 months.

       Reina’s counsel argued that the 16-level enhancement based on a prior aggravated




       1
         On May 7, 2008, Reina was indicted for distribution of heroin in the United
States District Court for the Eastern District of Pennsylvania; he pleaded guilty. He was
sentenced on November 12, 2008, to 151 months’ imprisonment to run concurrently with
the sentence imposed in this case. Reina has appealed his drug-related sentence as well.

                                             -2-
felony violated Reina’s Sixth Amendment rights. The District Court rejected this

argument based on settled Supreme Court and Third Circuit case law.

       Defense counsel also argued that a sentence within the 70-87 month Guidelines

range would create unwarranted sentencing disparities under 18 U.S.C. § 3553(a)(6)

because the Eastern District of Pennsylvania lacked a “fast-track” sentencing program,2

and thus Reina would be subject to a higher sentence than a defendant in a jurisdiction

that had such a program. Defense counsel asked the court to grant a variance.

       The District Court denied the request, finding that applicable case law counseled

against such a variance, and that Reina would not have been eligible for such relief

anyway. The District Court considered the Section 3553(a) factors and, on May 9, 2008,

sentenced Reina to 70 months’ imprisonment and 3 years of supervised.

                                             I.

       We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our review

of procedural errors in sentencing includes a court’s improper calculation of the




       2
         Fast-track programs “allow defendants who violate [8 U.S.C.] § 1326 to receive
lower sentences in exchange for waiving certain rights, including indictment by grand
jury.” United States v. Vargas, 477 F.3d 94, 98 n.8 (3d Cir. 2007) (citing United States
v. Mejia, 461 F.3d 158, 160 (2d Cir. 2006)). In 2003 Congress codified its approval of
these programs in Pub. L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003), and
the United States Sentencing Commission accordingly adopted U.S.S.G. § 5K3.1,
“which provides that, ‘[u]pon motion of the Government, the court may depart
downward not more than 4 levels pursuant to an early disposition program authorized by
the Attorney General of the United States and the United States Attorney for the district
in which the court resides.’” Mejia, 461 F.3d at 161.

                                            -3-
Guidelines, “treating the Guidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008).

We review the District Court’s sentence for an abuse of discretion, giving alleged factual

errors a “clearly erroneous” review but reviewing “purely legal” errors, such as

misinterpretations of the Guidelines, de novo. Id.

                                             II.

       Reina argues that jurisdictions which host “fast-track” programs often give illegal

re-entry defendants much shorter sentences, whereas defendants like Reina in non-fast-

track jurisdictions are disadvantaged because they are automatically subject to a higher

offense level. Reina argues that these differences in sentences across geographic

boundaries are “unwarranted sentence disparities” under 18 U.S.C. § 3553(a)(6).

       Reina focuses his argument on the interplay of two cases: our decision in United

States v. Vargas, 477 F.3d 94 (3d Cir. 2007), and the Supreme Court’s decision in

Kimbrough v. United States, 128 S. Ct. 558 (2007). Reina challenges the District

Court’s legal conclusion that Vargas applied in this case on the ground that Kimbrough

overrules Vargas.

       In Vargas, a case factually similar to this case, we held that “the disparity between

sentences in fast-track and non-fast-track districts is authorized by Congress and, hence,

warranted”; thus we found Vargas’s sentence was reasonable. Vargas, 477 F.3d at 98.


                                             -4-
We cited cases from a number of our sister Courts of Appeals, all of which reached the

same conclusion. Id. at 98-99. We joined our sister Circuits and 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 unreasonable.” Id. at 99. We held that “the establishment of

fast-track programs is a matter left to Congress and the Attorney General” and that when

Congress authorizes a sentencing disparity, that disparity cannot serve as a ground for

variance from the Guidelines. Id. at 100.

       Kimbrough, however, dealt with crack/cocaine sentencing disparities. The

District Court there held that the defendant’s lengthy sentence range reflected

disproportionate punishment for crack offenders. On appeal, the Fourth Circuit vacated

the below-Guidelines sentence because the District Court had held, in its discretion, that

Kimbrough should serve less time than the Guidelines prescribed.

       The Supreme Court then held that while courts can not ignore statutory

maximums and minimums, “it would not be an abuse of discretion for a district court to

conclude when sentencing a particular defendant that the crack/powder disparity yields a

sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run

case.” Kimbrough,128 S. Ct. at 575.3



       3
           Kimbrough was recently clarified by Spears v. United States, 129 S. Ct. 840,
843 (2009), which held that District Courts may vary from the crack cocaine Guidelines
based on policy disagreements, “and not simply based on an individualized determination
that they yield an excessive sentence in a particular case.”

                                             -5-
          Reina argues that Kimbrough overrules Vargas by analogy and allows a District

Court to vary its sentence on the basis of unwarranted disparity caused by

congressionally approved policies such as fast-track sentencing. We cannot agree.

          We held in Vargas that the defendant has the burden of showing that his

circumstances “exactly paralleled” those of specific defendants in fast-track jurisdictions;

Vargas had failed to do so because he only made general allegations about potential

disparities, and therefore the District Court could not consider such a comparison.

Vargas, 477 F.3d at 100 (quoting United States v. Charles, 467 F.3d 828, 833 n.7 (3d

Cir. 2006)).

          Reina’s situation is no different. There is no evidence in the record to show, with

the specificity required by Vargas and Charles, that Reina was actually treated differently

from similarly situated defendants in fast-track jurisdictions. Vargas, 477 F.3d at 100.

Reina sets forth only sweeping general arguments that he was treated differently than if

he had had access to a fast-track program, and therefore has not satisfied his burden of

proof.4

                                              III.



          4
           Reina also challenges the District Court’s conclusion that, had Reina been
sentenced in a fast-track jurisdiction, he would not have been eligible for relief anyway.
It is not clear from the record whether Reina would have been eligible for fast-track
sentencing based upon his timely guilty plea because fast-track sentencing requirements
vary by jurisdiction. Regardless, this issue does not affect the result in this case, and we
accordingly decline to address it any further.

                                               -6-
       Reina argues that the District Court violated his Fifth and his Sixth Amendment

rights by increasing his maximum sentence based on a prior conviction not charged in the

indictment or proved to a jury beyond a reasonable doubt. Reina notes that 8 U.S.C. §

1326(a) carries a two-year maximum sentence, but he was sentenced under Section

1326(b)(2), which increases the maximum sentence to 20 years when a defendant was

previously removed for conviction of an “aggravated felony.” Reina argues that the

indictment in his case never mentioned a prior conviction for an aggravated felony, and

thus his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000).

       However, Reina concedes that his argument is foreclosed by the Supreme Court’s

decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998) (holding that 8

U.S.C. § 1326(b)(2) sets forth a sentencing factor for the subsection (a) offense; the fact

of an alien’s prior conviction is not an element of the crime and thus does not have to be

charged in the indictment to be a factor in sentencing), and our opinions in United States

v. Coleman, 451 F.3d 154 (3d Cir. 2006) (holding that Almendarez-Torres is still good

law) and United States v. Ordaz, 398 F.3d 236 (3d Cir. 2005) (applying Almendarez-

Torres to Sixth Amendment claims).

                                             IV.

       The District Court did not abuse its discretion in sentencing Reina, and we will affirm

its judgment of sentence.




                                             -7-
