09-2674-cr
U nited States v. G ray

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 14 th day of July, two thousand ten.

PRESENT:         REENA RAGGI,
                 GERARD E. LYNCH,
                 DENNY CHIN,
                                          Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,

                                         Appellee,

                          v.                                              No. 09-2674-cr

DAWN GRAY,

                                          Defendant-Appellant.
-----------------------------------------------------------------------

APPEARING FOR APPELLANT:                          DAVID A. LEWIS, Federal Defenders of New
                                                  York, Inc., New York, New York.

APPEARING FOR APPELLEE:                           MELISSA B. MARRUS, Assistant United States
                                                  Attorney (Peter A. Norling, Assistant United
                                                  States Attorney, on the brief), for Benton J.
                                                  Campbell, United States Attorney for the Eastern
                                                  District of New York, Brooklyn, New York.

            Appeal from the United States District Court for the Eastern District of New York

(Brian M. Cogan, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on June 15, 2009, is AFFIRMED.

       Dawn Gray, who was convicted upon a guilty plea of one count of illegal reentry after

a felony conviction, see 8 U.S.C. § 1326(a), (b)(2), and found in violation of supervised

release on her past conviction, challenges the reasonableness of her 30-month sentence, a

variance from the 46-to-57-month prison term recommended by the applicable Sentencing

Guidelines range.     Gray submits that the district court committed legal error in

misapprehending the scope of its authority to mitigate her sentence further to avoid

unwarranted sentencing disparity, see 18 U.S.C. § 3553(a)(6), resulting from the absence of

a fast-track program in the district of her conviction.        We review a sentence for

reasonableness, see United States v. Booker, 543 U.S. 220, 261-62 (2005), a standard akin

to review for abuse of discretion, see United States v. Cavera, 550 F.3d 180, 187-88 (2d Cir.

2008) (en banc). “Reasonableness review involves consideration of both the length of the

sentence (substantive reasonableness) and the procedures used to arrive at the sentence

(procedural reasonableness).” United States v. Canova, 485 F.3d 674, 679 (2d Cir. 2007).

In undertaking this review, we assume the parties’ familiarity with the facts and the record

of prior proceedings, which we reference only as necessary to explain our decision to affirm.

       In several districts “where the number of illegal re-entry cases was overwhelming the

capacity to prosecute violators,” the United States Attorneys have instituted fast-track

programs, whereby they recommend reduced sentences in return for defendants’ waiver of

various rights, including grand jury indictment, jury trial, presentation of a pre-sentence


                                             2
report, and appellate review. United States v. Mejia, 461 F.3d 158, 160 (2d Cir. 2006).

Pursuant to congressional directive, see Prosecutorial Remedies and Other Tools To End the

Exploitation of Children Today Act, Pub. L. No. 108-21, § 401(m), 117 Stat. 650, 675

(2003), the United States Sentencing Commission promulgated U.S.S.G. § 5K3.1, which

states that, upon motion of the Government, a court calculating a defendant’s Guidelines

range “may depart downward not more than 4 levels” in consideration of the defendant’s

participation in a fast-track program. In United States v. Mejia, 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 unreasonable.” 461 F.3d at 164. Gray nevertheless contends that

the district court erred here in concluding that it could not reduce her sentence based on the

fast-track disparity without first finding that she had waived the same rights as those

receiving fast-track sentences under U.S.S.G. § 5K3.1. See Kimbrough v. United States, 552

U.S. 85 (2007); United States v. Booker, 543 U.S. 220 (2005).

       This court has not yet addressed the question of whether a district court “has the

authority to impose a non-Guidelines sentence in response to the fast-track sentencing

disparity if it deems such a reduced sentence to be warranted.”             United States v.

Liriano-Blanco, 510 F.3d 168, 172 (2d Cir. 2007). We need not do so here because, even

assuming such authority, we identify no legal error in Gray’s sentence. Although the district

court noted that Gray’s fast-track disparity argument was “not widely accepted,” it stated that

it was “not opposed to accepting th[e] argument on the right facts.” Sent’g Tr. at 20. In

short, the court assumed its authority to mitigate Gray’s sentence for the absence of a fast-

                                              3
track program even without a § 5K3.1 motion. The court explained that it did not do so

because the “facts” in Gray’s case did not reflect unwarranted disparity. Gray “ha[d not]

made the trade-offs that somebody in one of [the fast-track] programs typically makes.” Id.

This record does not reflect a district court’s mistaken belief that it was bound to follow a

Guideline. Rather, it reflects a district court’s reasonable, independent determination that

Gray was not sufficiently similarly situated to defendants who received § 5K3.1

consideration to support a finding of unwarranted disparity. Gray points to no other evidence

indicating that the district court wished to vary from the Guidelines but considered itself

unable – as a matter of law – to do so. To the contrary, the record shows that the district

court fully understood – and exercised – its discretion to impose a non-Guidelines sentence

based on its assessment of the totality of the § 3553(a) factors. The court acknowledged the

particular difficulties of Gray’s personal circumstances but concluded that the facts signaled

a need for incarceration to deter her further illegal reentry. We identify no legal error in the

challenged sentence.

       We have considered Gray’s remaining arguments on appeal and conclude that they

lack merit. For the foregoing reasons, the district court’s June 15, 2009 judgment is

AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




                                               4
