               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0663n.06

                                       Case No. 15-6398

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                        FILED
UNITED STATES OF AMERICA,                           )              Dec 09, 2016
                                                    )          DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                          )
                                                    )     ON APPEAL FROM THE UNITED
v.                                                  )     STATES DISTRICT COURT FOR
                                                    )     THE MIDDLE DISTRICT OF
SAUL ANTONIO MENDEZ-AGUIRRE,                        )     TENNESSEE
                                                    )
       Defendant-Appellant.                         )
                                                    )
                                                    )


BEFORE: BOGGS, GILMAN, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. Saul Antonio Mendez-Aguirre pled

guilty to a two-count indictment charging illegal reentry into the United States. Mendez-Aguirre

now challenges his resulting sentence. Seeing no merit in these challenges, we AFFIRM.

                                               I.

       Mendez-Aguirre, a native and citizen of Honduras, first entered the United States when

he was twenty years old. In March 2000, an Immigration Judge in Texas issued a warrant of

deportation, and ordered that Mendez-Aguirre be removed from the United States. In June 2007,

when Mendez-Aguirre was arrested for driving under the influence (third offense), it was

determined that Mendez-Aguirre had an outstanding removal order. Pursuant to the 2000 Texas

removal order, he was deported to Honduras in December 2007. Thus began a pattern of
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United States v. Saul Mendez-Aguirre

alcohol-related criminal offenses, deportation, and subsequent unlawful reentries for Mendez-

Aguirre.

       Prior to his arrest and deportation in 2007, Mendez-Aguirre had been convicted of

reckless driving in 2003 after he was observed traveling the wrong way in a travel lane. He was

also convicted of driving under the influence (second offense) in 2005. This time, he was found

behind the wheel of his vehicle at an intersection, unresponsive and reeking of alcohol. In 2007,

following the first of what would be several deportations, Mendez-Aguirre illegally reentered the

United States and was again arrested and charged with public intoxication in 2009. Mendez-

Aguirre was again removed from the United States in March 2010. Once again, Mendez-Aguirre

unlawfully reentered the United States and was arrested for driving under the influence (fourth

offense or more) in June 2011. When he was arrested, he was stopped in the lane of travel; was

asleep behind the steering wheel of a vehicle with his foot on the brake and the engine running;

reeked of alcohol, had bloodshot eyes, and was unsteady on his feet. In December 2011,

Mendez-Aguirre was deported for the third time in four years.

       For Mendez-Aguirre, the third time was not the charm. Following his December 2011

deportation, Mendez-Aguirre again illegally reentered the United States. In February 2015, he

was arrested for driving under the influence (fourth offense or more). Mendez-Aguirre was

arrested after a security officer noticed his vehicle proceeding through a section of grass. He was

discovered asleep with his foot on the brake, the engine still running, and the vehicle placed in

“drive.” Mendez-Aguirre had open beer cans beside him and had the smell of alcohol.

       A federal grand jury indicted Mendez-Aguirre on one count of unlawfully reentering the

United States after a previous removal, in violation of 8 U.S.C. § 1326(a), and on one count of

unlawfully reentering the United States following a removal subsequent to a felony conviction,


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in violation of 8 U.S.C. § 1326(a) and (b)(1). Mendez-Aguirre pled guilty to the indictment and,

based on a Guideline offense level of 12 and a criminal history category of IV, the district court

sentenced him to a total prison term of twenty-seven months.

                                                      II.

        Mendez-Aguirre raises two main issues on appeal: (1) whether, under Brady v. Maryland,

373 U.S. 83 (1963), the district court erred in denying his request for materials concerning fast-

track programs;1 and (2) whether the sentence imposed by the district court was either

procedurally or substantively unreasonable.

        In advance of sentencing, Mendez-Aguirre filed a sentencing memorandum, in which he

argued for a sentence below the Guideline range. (R. 18.) In support of this, he argued that his

lack of qualification for a fast-track program in the Middle District of Tennessee caused an

unwarranted sentencing disparity, since he would have been eligible for the program in other

districts. (Id. at PageID # 35–38.) Mendez-Aguirre further argued that if he had been prosecuted

in San Diego, he would have had the benefit of a four-level reduction. (Id. at PageID # 36.)

Even further, Mendez-Aguirre cited to districts in at least thirty-three states where he would have

been eligible for a reduction in his Guideline range under those districts’ fast-track programs.

(Id. at PageID # 37.)        The government’s response first noted that the Middle District of

Tennessee does have a fast-track program, but that Mendez-Aguirre was not eligible for it

“because his record establishes that he is both a determined recidivist with respect to the instant

offense, that is, illegal entry, and a serial felon with respect to drunken driving.” (R. 19, PageID

# 40–41.) The government also argued that Mendez-Aguirre failed to support his argument that



1
  Fast-track programs are programs adopted by prosecutors’ offices to expedite illegal-reentry cases. We have
previously outlined the history and use of such programs. See United States v. Perez-Vasquez, 570 F.3d 692, 695–
96 (6th Cir. 2009).

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he would be eligible for the fast-track program in other jurisdictions with evidence of the

eligibility criteria in the cited jurisdictions. (Id. at PageID # 41.)

        Mendez-Aguirre’s reply argued that complete and accurate information about each

district’s fast-track program is solely in the possession of the government. (R. 20.) Accordingly,

he requested information concerning all the details, policies, and criteria of the fast-track

program in the Middle District of Tennessee; every federal judicial district in which the Attorney

General maintains a fast-track program; all charging criteria and eligibility requirements that a

defendant must meet to receive a fast-track sentence in each district that has such a program; the

methodology used to determine the likely imprisonment range that fast-tracked defendants face

in each district with such a program; and any and all other information in the government’s

possession concerning fast-track programs that might be favorable to Mendez-Aguirre. (Id. at

PageID # 48–49.)       At sentencing, the district court denied Mendez-Aguirre’s request for

materials concerning fast-track programs, finding that, under Brady, any fast-track policy for the

district is not factually exculpatory or factually impeaching. (R. 31, PageID # 86.)

        A.      Asserted Brady Violation

        We review the district court’s determination as to the existence of a Brady violation de

novo. United States v. Graham, 484 F.3d 413, 416–17 (6th Cir. 2007) (citing United States v.

Miller, 161 F.3d 977, 987 (6th Cir. 1998)). Under Brady, “suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the evidence is

material either to guilt or to punishment.” 373 U.S. at 87. Accordingly, a defendant seeking to

establish a Brady violation must show that: (1) the government suppressed evidence; (2) the

evidence was favorable to the defense; and (3) the suppressed evidence was material. Graham,

484 F.3d at 417 (citing Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000)). We have noted that


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“[e]vidence is material only if there is ‘a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.’” United States

v. Fields, 763 F.3d 443, 458 (6th Cir. 2014) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 57

(1987)).

       Mendez-Aguirre correctly notes that Brady applies to evidence that is material to a

defendant’s sentence, see Montgomery v. Bobby, 654 F.3d 668, 697 (6th Cir. 2011); however, he

has not shown that the evidence of fast-track policies would be exculpatory or impeaching in a

manner that would make them material under Brady. The government argues that the fast-track

policies, which Mendez-Aguirre points to as material under Brady, “are merely internal policy

documents that bestow no rights of any kind on defendants, but instead set out the criteria that

various U.S. Attorney’s Offices consider when deciding, as a matter of prosecutorial discretion,

how to use their fast-track programs instrumentally to deal with the challenges of immigration-

related crime.” (Appellee Br., at 17.) We agree. Brady does not extend to this sort of evidence

that is neither impeaching nor exculpatory, but is solely made available to a defendant as a

matter of prosecutorial discretion. And Mendez-Aguirre does not cite to any authority that

would allow this Court to make that leap. Even further, Mendez-Aguirre is required to show,

under Brady, that had the government provided him with evidence of its fast-track program, the

result of his proceeding would have been different. See Fields, 763 F.3d at 458. He has not

sufficiently carried this burden. As is supported by our decision below, the record does not

indicate that had Mendez-Aguirre been able to further supplement the fast-track evidence already

presented to the district court, it would have been material to his sentencing.

       Because the evidence upon which Mendez-Aguirre bases his Brady claim does not satisfy

the materiality requirement of Brady, we need not reach the remaining requirements.


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          B.     Procedural and Substantive Unreasonableness

          Mendez-Aguirre also challenges his sentence on the grounds that it was procedurally and

substantively unreasonable. In particular, he argues that the district court wrongly concluded

that it did not have authority to grant a variance based on a fast-track disparity. (Appellant Br.,

at 24.)

          We review the procedural and substantive reasonableness of a sentence for abuse of

discretion. United States v. Collins, 828 F.3d 386, 388 (6th Cir. 2016) (citing Gall v. United

States, 552 U.S. 38, 51 (2007)). “A district court abuses its discretion in the sentencing context

if it ‘commits a significant procedural error,’ ‘selects a sentence arbitrarily, bases the sentence on

impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable

amount of weight to any pertinent factor.’” Id. (quoting United States v. Conatser, 514 F.3d 508,

520 (6th Cir. 2008)) (alteration and internal citations omitted). Additionally, we “afford[] a

rebuttable presumption of reasonableness to a properly calculated, within-Guidelines sentence.”

United States v. Graham, 622 F.3d 445, 464 (6th Cir. 2010).2

          During sentencing, the district court, in response to Mendez-Aguirre’s request for a

downward variance, stated: “And the Sixth Circuit case law is clearly that the difference between

districts that have fast track and districts that don’t have fast track is not an unwarranted

sentencing disparity but in fact is contemplated by the guidelines and would, therefore, be

warranted as opposed to unwarranted.” (R. 31, at PageID # 86–87.) Regardless, in its evaluation

of the 18 U.S.C. § 3553(a) factors, the court acknowledged that the disparity caused by fast-track

programs is a consideration for the court in evaluating unwarranted sentencing disparities, (id. at

2
  We note that the government contends that we should review this claim for plain error because Mendez-Aguirre
did not object when the district court specifically asked for objections under United States v. Bostic, 371 F.3d 865
(6th Cir. 2004). (Appellee Br., at 26–27.) However, we have held that the abuse-of-discretion standard is properly
applied where, as here, the claim at issue involves an overlap of procedural and substantive reasonableness. See
United States v. Jeter, 721 F.3d 746, 756 (6th Cir. 2013).

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PageID # 110), but that the fact that the Middle District of Tennessee “may not liberally exercise

its fast track policy” does not create an unwarranted sentencing disparity. (Id. at PageID # 111.)

       For clarity, we emphasize that our precedent does not prohibit a district court from

granting a downward variance based on the disparities caused by districts with fast-track

programs and districts without a fast-track program. See United States v. Camacho-Arellano,

614 F.3d 244, 250 (6th Cir. 2010) (“[W]e repudiate any prior hint that district judges [cannot]

grant variances based on the fast-track disparity.”). However, while “a sentencing court has the

authority to deviate from the Guidelines if it disagrees with the policy underlying the disparity

created by the existence of fast-track programs in other districts, it is not required to do so.”

United States v. Castaneda-Comacho, 421 F. App’x 604, 606 (6th Cir. 2011).

       In this case, we must review the reasonableness of the sentence imposed in light of the

record as a whole. It does not appear from the record that the district court misunderstood the

scope of its sentencing power. Further, nothing in the sentencing record leads this Court to

conclude that the district court believed that it was expressly prohibited from granting a variance

on this basis. Rather, the opposite is clear. The district court examined the need to avoid

unwanted disparities, but stated: “And there is the question of respect for the law. The multiple

or serial DUIs is a reason why this defendant would be treated differently than other defendants

who have had reentry cases.” (R. 31, at PageID # 112.) Because we have held that a sentencing

court is not required to deviate from the Guidelines based on fast-track policies, Castaneda-

Comacho, 421 F. App’x at 606, we decline to conclude that the district judge’s decision not to

deviate here was an abuse of discretion. Furthermore, the record indicates that the district court

properly considered the § 3553(a) factors in deciding to impose a sentence within the Guideline




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range. Mendez-Aguirre has not sufficiently rebutted the presumption of reasonableness that we

accord such sentences.

                                            III.

       For the aforementioned reasons, we AFFRIM Mendez-Aguirre’s sentence.




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