                                  NOT FOR PUBLICATION
                                   File Name: 07a0128n.06
                                   Filed: February 15, 2007

                                         NO. 06-3112

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,                          ON APPEAL FROM THE
                                                    UNITED STATES DISTRICT
v.                                                  COURT FOR THE SOUTHERN
                                                    DISTRICT OF OHIO
NOE JESUS CASTRO-MARTINEZ,

      Defendant-Appellant.
_________________________________/

BEFORE: SUHRHEINRICH, GIBBONS, and COOK, Circuit Judges.

       SUHRHEINRICH, J., Defendant-Appellant Noe Jesus Castro-Martinez (“Defendant”)

pleaded guilty to reentry of an illegal alien, in violation of 8 U.S.C. § 1326. He appeals his

sentence from the United States District Court for the Southern District of Ohio, Western

Division (“district court”), contending it is unreasonable because: (1) the actual severity of his

previous convictions supported a sentence below the advisory Guidelines range; (2) the district

court refused to sentence him below the Guidelines range based on sentences of other illegal

aliens in so-called “fast-track” jurisdictions; and (3) the district court refused to sentence him

below the Guidelines range based on sentences of other illegal aliens within the Southern

District of Ohio. For the reasons that follow, we AFFIRM.

                                             I. Facts

       On March 29, 2005, Miami Township police officers responded to a domestic altercation

involving a Hispanic male and his girlfriend. After being identified as the male involved in the
domestic altercation, Defendant admitted he did not possess any form of identification. When

questioned by the officers, Defendant gave the police a false name and admitted he was an

illegal alien. After he was fingerprinted by the police, his identity was revealed to be Noe Jesus

Castro-Martinez. Defendant was arrested and charged with falsification and unlawful restraint,

in violation of Ohio Rev. Code Ann. § 2905.03 (West 2004). The Miami Township police

officers contacted the Bureau of Immigration and Customs Enforcement (“ICE”). When ICE

officials interviewed Defendant, he confirmed he was a citizen of Mexico and had previously

been deported from the United States in 1999 and 2001. A review of his criminal record

revealed that while in the United States, Defendant had been arrested four times for assault: in

July 1991, June 1994, October 1995, and September 1996. He was convicted for the 1991 and

1996 arrests.

       On April 13, 2005, Defendant was taken into federal custody.          On May 18, 2005,

Defendant was indicted by a federal grand jury on charges of reentry of removed alien, pursuant

to 8 U.S.C. § 1326. On July 25, 2005, Defendant entered a guilty plea to the Indictment. At

Defendant’s November 23, 2005, sentencing hearing, the district court calculated Defendant’s

Guidelines range pursuant to U.S. Sentencing Guidelines Manual § 2L1.2 (2004): Unlawfully

Entering or Remaining in the United States. The court assigned Defendant a net offense level of

twenty-one, a criminal history score of six, and a criminal history category of III. This resulted

in an advisory Guidelines range of 46 to 57 months. The district court departed downward six

months below the Guidelines range to 40 months. This was in recognition that Defendant’s

illegal status rendered him ineligible for good time credit or halfway house designation at the

end of his sentence.



                                                2
         On appeal, Defendant contends his sentence is unreasonable because the actual severity

of his previous conviction supports a sentence below the advisory Guidelines range.

Additionally, Defendant argues the district court unreasonably refused to sentence him below the

Guidelines range based on the differences between his sentence and sentences of other illegal

aliens in fast-track jurisdictions and the differences between his sentence and sentences of other

illegal aliens within the Southern District of Ohio.

                                     II. Standard of Review

         “[W]hen a defendant challenges a district court's sentencing determination, we are

instructed to determine ‘whether [the] sentence is unreasonable.’” United States v. Webb, 403

F.3d 373, 383 (6th Cir. 2005) (quoting United States v. Booker, 543 U.S. 220, 261 (2005)). “[A]

sentence is unreasonable when the district judge fails to ‘consider’ the applicable Guidelines

range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply

selects what the judge deems an appropriate sentence without such required consideration.”

Webb, 403 F.3d at 383 (citing Booker, 543 U.S. at 245-46). “[S]entences properly calculated

under the Guidelines [are credited] with a rebuttable presumption of reasonableness.” United

States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). We review the district court’s legal

interpretation of the Guidelines de novo. United States v. Arnold, 58 F.3d 1117, 1120 (6th Cir.

1995).

                                           III. Analysis

                                 A. Severity of Prior Conviction

         Defendant contends his sentence is unreasonable because the actual severity of his state

conviction of aggravated assault supported a sentence considerably below the advisory

Guidelines range. In July 1991, Defendant was arrested for aggravated assault, to which he

                                                 3
pleaded guilty and was given three years of probation. Defendant’s probation was revoked,

resulting in a sentence of 180 days in prison.1 Defendant contends because he was sentenced to

probation, and only received a 180-day jail sentence after having his probation revoked, the

conviction did not reflect the degree of dangerousness sufficient to justify a sixteen-level

enhancement to his base offense level.2

       Addressing the severity of prior convictions, the district court stated:

                If I were required to analyze the 16-level enhancement based upon the
       facts and circumstances of this defendant, I, quite frankly would not be able to say
       that it is excessive. . . .
                                               ...
                I fully understand the argument that these [convictions] couldn’t have
       been as bad as the name of the offense would indicate because, after all, he was
       placed on probation both times, but the fact remains probation was revoked
       because the defendant has [an alcohol] problem which he has been unable to
       control over the years, and that problem . . . causes recidivism and perhaps reentry
       once deported.

       Under U.S. Sentencing Guidelines Manual §2L1.2(b)(1), if a “defendant previously was

deported, or unlawfully remained in the United States, after . . . a conviction for a felony that is

. . . a crime of violence, . . . [then] increase by 16 levels . . . .” U.S. Sentencing Guidelines

Manual §2L1.2(b)(1) (2004).       The Sentencing Guidelines include aggravated assault in the

definition of “crime of violence.” Id. §2L1.2 cmt. n.1(B)(iii). Defendant did not dispute at

sentencing, nor does he dispute in this appeal, that he was convicted of aggravated assault in

1992, or that this conviction constitutes a crime of violence under the applicable Guidelines.


1
 The Presentence Investigation Report indicates that Defendant’s probation was revoked as a
result of committing a new criminal offense, failing to report to the probation office, failing to
pay court costs and probation fees, and failing to attend Alcoholics Anonymous.
2
 In addition, the district court carefully considered Defendant’s prior criminal record, which
included another conviction in 1996 for assault causing bodily injury. Defendant was sentenced
to one year of probation for the 1996 conviction. This probation was also revoked, and
Defendant was sentenced to 180 days in jail.
                                                   4
“[T]he Sentencing Guidelines do not afford the district court any discretion to depart downward

under USSG § 2L1.2(b)(1)(A)(ii).” United States v. Ibarra-Hernandez, 427 F.3d 322, 336 (6th

Cir. 2005).    Defendant has not rebutted the presumption that his sentence is reasonable;

therefore, we affirm the decision of the district court.

                             B. Disparity With Fast-Track Districts

       Next, Defendant argues the district court unreasonably refused to sentence him below the

Guidelines range based on the differences between his sentence and sentences of similarly

situated defendants in fast-track jurisdictions.

       Fast-track programs were first created to ease the burden in some districts dealing with

illegal re-entry cases. Primarily these districts were located on the Mexican border, and typically

a large number of illegal re-entry cases. The high volume of illegal re-entry cases strained

facilities as there was not enough space to house defendants and a shortage of prosecutors. To

alleviate the problem, prosecutors in fast-track districts have agreed to significantly reduced

sentences in exchange for prompt guilty pleas. This procedure requires the defendant to enter

into a plea bargain with the government and forfeit the right to appeal or collaterally attack the

conviction. The purpose of fast-track programs is to facilitate quick and easy disposition of

cases to reduce the burdens they impose in those districts. The Southern District of Ohio has not

implemented a fast-track program.

       This Court has held that the existence of fast-track programs does not render disparate

sentences outside of fast-track jurisdictions unreasonable. See United States v. Hernandez-

Fierros, 453 F.3d 309, 314 (6th Cir. 2006) (holding sentencing disparity between fast-track

district and non fast-track district “does not run counter to § 3553(a)’s instruction to avoid

unnecessary sentencing disparities”); United States v. Contreras-Armendariz, No. 05-5483, 2006

                                                   5
WL 3488784, at *3 (6th Cir. Dec. 4, 2006) (unpublished opinion) (holding the district court’s

refusal to sentence defendant as if fast-track sentencing was available in Kentucky did not render

the sentence unreasonable); see also United States v. Hernandez-Cervantes, 161 F. App’x 508

(6th Cir. 2005) (unpublished opinion) (holding defendant’s sentence was not rendered

unreasonable by disparities between defendant’s sentence and sentences received by defendants

in fast-track jurisdictions); United States v. Louis, 185 F. App’x 500 (6th Cir. 2006)

(unpublished opinion) (holding defendant’s sentence was not rendered unreasonable by district

court’s failure to consider the disparity created by the lack of a fast-track sentencing scheme in

the district). Defendant has not rebutted the presumption that his sentence is reasonable.

                                  C. Disparity Within District

       Lastly, Defendant contends his sentence is unreasonable because the district court

refused to sentence him below the Guidelines range based on differences between his sentence

and sentences of other illegal aliens within the Southern District of Ohio.

       In support of his request for a sentence below the advisory sentence calculated using the

Guidelines, Defendant submitted certain statistical data. The district court carefully considered

the statistics, but ultimately decided that “[t]he use of statistics to show a disparity within the

discretion of this Court . . . does not satisfy this Court that either a departure from the advisory

sentencing guideline range or a sentence below that range . . . should be ordered for this reason.”

The district court’s consideration of the statistics was not unreasonable. Defendant’s sentencing

data for “Immigration Offenses,” which includes the mean and median sentence, is composed of

sentences for all immigration offenses, not solely 8 U.S.C. § 1326 offenses. The “Immigration

Category” in Defendant’s statistical data is composed of a hodgepodge of sentences from all

immigration statutes.

                                                 6
       “Under 18 U.S.C. § 3553(a), the need to avoid sentencing disparity is only one of the

factors that a district court should consider in determining an appropriate sentence.” Hernandez-

Fierros, 453 F.3d at 313 (holding no error when the district court balanced the need to avoid

sentencing disparities with the need to protect the public and impress upon defendant the

importance of obeying laws); see also Hernandez-Cervantes, 161 F. App’x at 508 (unpublished

opinion) (holding no error when district court did not reduce defendant’s reentry of alien

sentence because of sentencing disparity when court also considered the seriousness of the

offense, deterrence to criminal conduct, and need to protect the public).

       The district court carefully considered all of Defendant’s arguments for a departure and

weighed them in light of the sentencing factors set forth in 18 U.S.C. § 3553(a). The district

court discussed the need for the sentence imposed to reflect the seriousness of the offense,

promote respect for the law, adequately afford deterrence to this particular defendant’s criminal

conduct, take into consideration the public’s need for safety, and provide just punishment. This

included Defendant’s history of violent offenses, problems with recidivism, and how those

factors distinguished him from other similarly situated defendants who had received downward

departures.3 The district court also considered the goal of providing Defendant with needed

treatment or care in the most effective manner available to an illegal alien. Further, the district

court considered sentencing disparity, stating, “as far as disparity, as far as treating this

defendant unreasonably from other defendants who have committed similar crimes with similar



3
 In addition to the aggravated assault conviction giving rise to the 16-level enhancement,
Defendant has been convicted of driving with a suspended license, failure to identify (for
providing police with a fictitious name), assault, and twice for driving under the influence.
Defendant initially received probation for most of these convictions, but probation sentences
were later revoked, in part, due to Defendant’s failure to attend alcohol treatment and his
positive urine test for cocaine.
                                                  7
backgrounds, the Court believes it has covered that as thoroughly as it can. The Court sees no

unreasonable disparity.”

       Defendant has not rebutted the presumption that the 40-month sentence was reasonable.

                                       IV. Conclusion

       Accordingly, we AFFIRM the sentence of the district court.




                                              8
