                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                      No. 08-50010
               Plaintiff-Appellant,               D.C. No.
               v.                            CR-07-01812-LAB-
JUAN GONZALEZ-ZOTELO,                                 1
              Defendant-Appellee.
                                                 OPINION

        Appeal from the United States District Court
          for the Southern District of California
         Larry A. Burns, District Judge, Presiding

                  Argued and Submitted
          December 12, 2008—Pasadena, California

                      Filed January 8, 2009

      Before: Barry G. Silverman and Carlos T. Bea,
  Circuit Judges, and Suzanne B. Conlon,* District Judge.

                  Opinion by Judge Silverman




   *The Honorable Suzanne B. Conlon, United States District Court for
the Northern District of Illinois, sitting by designation.

                                149
152           UNITED STATES v. GONZALEZ-ZOTELO


                         COUNSEL

David P. Curnow, United States Attorney’s Office for the
Southern District of California, San Diego, California, for the
plaintiffs-appellants.

Steven Francis Hubachek, Federal Defenders of San Diego,
Inc., San Diego, California, for the defendant-appellee.


                         OPINION

SILVERMAN, Circuit Judge:

   The government appeals the 30-month sentence the district
court imposed on Juan Gonzalez-Zotelo after his conviction
for being a deported alien found in the United States in viola-
tion of 8 U.S.C. § 1326. The U.S. Attorney’s Office did not
offer Gonzalez-Zotelo a fast-track plea bargain because of his
prior conviction for lewd and lascivious acts with a child. The
district court nonetheless gave Gonzalez-Zotelo the same sen-
tence given earlier that day to a fast-track defendant with
armed robbery priors, to promote “consistency.” Because the
district court erred when it imposed a lower sentence on
Gonzalez-Zotelo based solely on what it misperceived to be
unwarranted sentencing disparity, we vacate the sentence and
remand for re-sentencing. Under our cases, the disparity in
question is indeed warranted, because it is justified by Con-
gress’s approval of fast-track plea bargaining programs. This
              UNITED STATES v. GONZALEZ-ZOTELO             153
conclusion is not undermined by Kimbrough v. United States,
which allows judges to disagree with Guidelines sentencing
policy, not with congressional sentencing policy.

I.   Background

   On July 10, 2007, Gonzalez-Zotelo was charged with vio-
lating 8 U.S.C. § 1326, being found in the United States after
deportation. The government refused to offer Gonzalez-
Zotelo a fast-track charge bargain because he had a prior Cali-
fornia felony conviction for lewd or lascivious acts with a
child under the age of 14. Gonzalez-Zotelo waived a jury trial
and was convicted after a bench trial. Prior to sentencing, the
government filed a sentencing summary chart. Gonzalez-
Zotelo filed a sentencing memorandum arguing that he was
eligible for departures from the Guidelines due to acceptance
of responsibility, over-representation of criminal history, and
his offer to waive appeal.

   Gonzalez-Zotelo’s criminal history score (Category IV) and
adjusted offense level (22) resulted in an advisory Guidelines
range of 63 to 78 months imprisonment. At the sentencing
hearing, the district judge first agreed that Gonzalez-Zotelo’s
criminal history category over-represented his criminal his-
tory and departed downwards to Category III. The district
court calculated the new advisory Guidelines range at 51 to 63
months’ imprisonment.

   The district court then sentenced Gonzalez-Zotelo to 30
months imprisonment. The judge’s rationale for imposing the
below-Guidelines sentence was a lack of “consistency”
between Gonzalez-Zotelo’s Guidelines range and the range of
a defendant — previously convicted of two armed robberies
— that he had sentenced earlier that day and who had pleaded
guilty pursuant to a fast-track plea bargain. That defendant
had been offered a plea to a less serious felony and to a mis-
demeanor and was sentenced to 30 months. The district judge
stated:
154            UNITED STATES v. GONZALEZ-ZOTELO
      And would I give 57 months in both cases? Sure I
      would. I didn’t accept the plea agreement in the
      other case, but I was bound to impose 30 months.

      Having done that in this case, now I send this guy
      back to the tank and what do I give him, 57 months,
      and he is sitting next to the guy with the two armed
      robberies and they start comparing notes. Doesn’t
      seem fair to me.

      ...

      I am also, as I have said, aware and mindful of the
      fact that similarly situated individuals on this very
      day in this very court got a way better deal than
      what’s being advocated for this guy. And I just don’t
      see enough difference between these two cases.

Although the government objected on the basis that Gonzalez-
Zotelo’s conviction for lewd or lascivious conduct was “seri-
ous,” it did not suggest that the district court could not prop-
erly take fast-track disparities into account.

II.   Discussion

   The government argues that it was unreasonable for the dis-
trict court to base its sentencing decision solely on disparities
between a defendant who did not receive a fast-track plea
offer and a defendant who did. Gonzalez-Zotelo contends that
the district court did not err because, after the Supreme
Court’s decision in Kimbrough v. United States, 128 S. Ct.
558, 570 (2007), district judges are permitted to impose sen-
tences reflecting their policy disagreements with the Guide-
lines. We review the government’s appeal for plain error
because it failed to “provide[ ] the district court with an
opportunity to address the error in the first instance” by
objecting on this ground. See United States v. Grissom, 525
F.3d 691, 694 (9th Cir. 2008) (internal quotations omitted).
               UNITED STATES v. GONZALEZ-ZOTELO                 155
Under this standard, the government must demonstrate that:
(1) there was error; (2) the error was plain; and (3) the error
affected substantial rights. United States v. Perez, 116 F.3d
840, 846 (9th Cir. 1997). We exercise our discretion to correct
the error if it “seriously affect[s] the fairness, integrity or pub-
lic reputation of judicial proceedings.” Id.

   [1] The fast-track program allows federal prosecutors to
offer shorter sentences to defendants who plead guilty at an
early stage in the prosecution and agree to waive appeal and
other rights. United States v. Marcial-Santiago, 447 F.3d 715,
718 (9th Cir. 2006). In 2003, Congress explicitly authorized
downward sentencing departures for fast-track programs in
the Prosecutorial Remedies and Tools Against the Exploita-
tion of Children Today Act of 2003 (“PROTECT Act”), Pub.
L. No. 108-21, § 401(m), 117 Stat. 650 (2003). The PRO-
TECT Act directed the Sentencing Commission to “promul-
gate . . . a policy statement authorizing a downward departure
of not more than 4 levels if the Government files a motion for
such departure pursuant to an early disposition program
authorized by the Attorney General and the United States
Attorney.” Id.

   [2] In Marcial-Santiago, we held that sentencing disparities
between defendants prosecuted in districts that offer fast-track
programs and defendants prosecuted in non-fast-track districts
are not “unwarranted.” 447 F.3d at 719. The differences
between these defendants’ sentences are “justified by the ben-
efits gained by the government when defendants plead guilty
early in criminal proceedings.” Id. Under this logic, a district
court may not take fast-track disparities into account in sen-
tencing under 18 U.S.C. § 3553(a)(6) because § 3553(a)(6)
directs the district judge to consider only “unwarranted” sen-
tencing disparities. See United States v. Gomez-Herrera, 523
F.3d 554, 563 n.4 (5th Cir. 2008); United States v. Arevalo-
Juarez, 464 F.3d 1246, 1251 (11th Cir. 2006); United States
v. Galicia-Cardenas, 443 F.3d 553, 555 (7th Cir. 2006); see
also United States v. Perez-Pena, 453 F.3d 236, 244 (4th Cir.
156            UNITED STATES v. GONZALEZ-ZOTELO
2006) (“If defendants in fast-track districts expected to
receive similar sentences regardless of whether they partici-
pated in a program, defendants would have little incentive to
participate.”). Marcial-Santiago’s justification of disparities
based on the benefits gained by the government applies
equally to disparities between defendants within the same dis-
trict. See United States v. Vasquez-Landaver, 527 F.3d 798,
804-05 (9th Cir. 2008) (citing Marcial-Santiago in holding
that a district court’s refusal to give a lower sentence based
on intra-district disparities was not an abuse of discretion).
Thus, unless Kimbrough has overruled Marcial-Santiago, the
district court’s consideration of “warranted” sentencing dis-
parities would be error here.

   [3] In Kimbrough, the Supreme Court held that a district
judge “may determine . . . that, in the particular case, a
within-Guidelines sentence is ‘greater than necessary’ to
serve the objectives of sentencing,” and that, “[i]n making
that determination, the judge may consider the disparity
between the Guidelines’ treatment of crack and powder
cocaine offenses.” 128 S. Ct. at 564. Kimbrough held that the
100-to-1 Guidelines ratio for crack offenses compared to
powder cocaine offenses “lack[ed] grounding in the text” of
the relevant statute. Id. at 571. Noting that the crack/powder
cocaine guidelines did not exemplify the Sentencing Commis-
sion’s exercise of its “characteristic institutional role” because
they were not based on “empirical data and national experi-
ence,” the Court upheld the district court’s departure from the
Guidelines based on the crack/powder disparity. Id. at 575-76.

   [4] We must determine whether we are still bound to follow
the reasoning of Marcial-Santiago in light of Kimbrough. “A
three-judge panel must follow a prior circuit decision unless
a subsequent decision by a relevant court of last resort either
effectively overrules the decision in a case ‘closely on point’
or undercuts the reasoning underlying the circuit precedent
rendering the cases ‘clearly irreconcilable.’ ” Hulteen v.
AT&T Corp., 498 F.3d 1001, 1009 (9th Cir. 2008), cert.
               UNITED STATES v. GONZALEZ-ZOTELO              157
granted, 128 S. Ct. 2957 (2008) (No. 07-543). The Fifth and
Eleventh Circuits have concluded that Kimbrough did not
impact case law preventing district courts from considering
fast-track disparities. See United States v. Vega-Castillo, 540
F.3d 1235, 1239 (11th Cir. 2008); Gomez-Herrera, 523 F.3d
554, 563 (5th Cir. 2008). Both courts held that “Kimbrough
addressed only a district court’s discretion to vary from the
Guidelines based on a disagreement with Guideline, not
[c]ongressional, policy.” Id.; Vega-Castillo, 540 F.3d at 1239.
In contrast, a First Circuit panel, noting that it was permitted
to overrule its circuit precedent “in ‘those relatively rare
instances in which authority that postdates the original deci-
sion, although not directly controlling, nevertheless offers a
sound reason for believing that the former panel, in light of
fresh developments, would change its collective mind,” held
that Kimbrough’s “more holistic” approach “militate[d] in
favor” of permitting district courts to consider fast-track dis-
parities. United States v. Rodriguez, 527 F.3d 221, 225, 227
(1st Cir. 2008).

   [5] We now join the Fifth and Eleventh Circuits in holding
that Kimbrough did not undercut our precedent holding that
fast-track disparities are not “unwarranted” so as to permit
their consideration under § 3553(a)(6). Kimbrough did not
“effectively overrule[ ]” or “undercut[ ] the reasoning” of
Marcial-Santiago so that the two cases are “clearly irreconcil-
able.” Although Kimbrough permits district courts to “vary
from Guidelines ranges based solely on policy considerations,
including disagreements with the Guidelines,” Kimbrough,
128 S. Ct. at 570, it does not address a district court’s ability
to vary from the Guidelines based on disagreement with con-
gressional policy, the situation we confront here. See Vega-
Castillo, 540 F.3d at 1239; Gomez-Herrera, 523 F.3d at 563.

  [6] Congress authorized downward departures for fast-track
programs in the PROTECT Act. “By authorizing fast-track
programs without revising the terms of § 3553(a)(6), Con-
gress was necessarily providing that the sentencing disparities
158            UNITED STATES v. GONZALEZ-ZOTELO
that result from these programs are warranted and, as such, do
not violate § 3553(a)(6).” Marcial-Santiago, 447 F.3d at 718.
The district court, like this panel, was bound to follow the rea-
soning of Marcial-Santiago unless it had been “effectively
overrule[d]” or was “clearly irreconcilable” with a case from
the relevant court of last resort. See Miller v. Gammie, 335
F.3d 889, 899-900 (9th Cir. 2003). The district court’s failure
to do so here was therefore error even after Kimbrough
because the judge’s downward departure reflected not a dis-
agreement with the Guidelines, but with congressional policy
authorizing downward departures for fast-track defendants.
While Kimbrough permits a district court to consider its pol-
icy disagreements with the Guidelines, it does not authorize
a district judge to take into account his disagreements with
congressional policy.

   [7] The district court’s error here was plain. An error is
“plain” when it is “clear” or “obvious” under the law. Perez,
116 F.3d at 846. Under Marcial-Santiago, the district court
should not have considered fast-track disparities to be “un-
warranted” so as to permit a departure under § 3553(a)(6).
447 F.3d at 718. Since Marcial-Santiago was controlling both
before and after Kimbrough, the district court’s error in failing
to follow binding precedent is clear.

   [8] To prevail on plain error review, the government must
also show that the district court’s error affected its substantial
rights. Perez, 116 F.3d at 846. The government’s substantial
rights may be affected when a defendant receives an inappro-
priate sentence. See United States v. Willingham, 497 F.3d
541, 545 (5th Cir. 2007); United States v. Barnett, 410 F.3d
1048, 1050-51 (8th Cir. 2005); United States v. Dickerson,
381 F.3d 251, 257 (3d Cir. 2004) (collecting cases); United
States v. Clark, 274 F.3d 1325, 1329 (11th Cir. 2001); United
States v. Perkins, 108 F.3d 512, 517 (4th Cir. 1997); United
States v. Barajas-Nunez, 91 F.3d 826, 833 (6th Cir. 1996). To
meet the substantial rights test, the government must show a
reasonable probability that Gonzalez-Zotelo would have
               UNITED STATES v. GONZALEZ-ZOTELO               159
received a different sentence but for the district court’s error.
See United States v. Dallman, 533 F.3d 755, 762 (9th Cir.
2008); Willingham, 497 F.3d at 545. Here, the government
meets the “substantial rights” test. The district judge stated
that he would have given a 57-month sentence to Gonzalez-
Zotelo and the defendant he sentenced earlier that day if per-
mitted. The judge went on to give Gonzalez-Zotelo a 30-
month sentence based solely on a perceived disparity with the
fast-track defendant. Thus, the government has shown a rea-
sonable probability that Gonzalez-Zotelo would have received
a different sentence but for the error.

   [9] We exercise our discretionary power to correct the plain
error because the error “seriously affect[s] the fairness, integ-
rity, or public reputation of judicial proceedings.” Perez, 116
F.3d at 846. Because there is a reasonable probability that the
district judge would have given a different sentence but for
the error, “everyone will be left to wonder about whether the
sentencing court might have acted differently” unless this case
is remanded for resentencing. United States v. Ameline, 409
F.3d 1073, 1080-81 (9th Cir. 2005). Such a situation would
undermine the fairness and integrity of judicial proceedings.
Id. Accordingly, we vacate the sentence and remand for re-
sentencing.

   We note that even if Marcial-Santiago were no longer con-
trolling, the district court’s failure to impose an individualized
sentence in this case would require remand. A district judge
is required to make an “individualized determination” of a
sentence based on the facts. United States v. Carty, 520 F.3d
984, 991 (9th Cir. 2008). Although the judge is not required
to “tick off each of the § 3553(a) factors to show that it has
considered them,” id. at 992, he is required to provide
“defendant-specific reasons for imposing a certain sentence”
in order to comply with § 3553. United States v. Delgado, 357
F.3d 1061, 1071 (9th Cir. 2004). The sentencing transcript
here shows that the district judge would have been comfort-
able imposing a 57-month sentence but for the happenstance
160           UNITED STATES v. GONZALEZ-ZOTELO
of the sentence he gave to a different defendant that morning.
A sentence that is calculated solely on that basis does not
comply with Carty. The judge failed to make an individual-
ized determination of Gonzalez-Zotelo’s sentence based on
facts specific to him. Thus, we vacate the sentence and
remand also to permit an individualized determination of
Gonzalez-Zotelo’s sentence based on the facts of his case.

III.   Conclusion

   For the reasons stated, the defendant’s sentence is
VACATED and the matter is REMANDED for resentencing
in accordance with this opinion.
