                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-3-2007

USA v. Garcia-Rivas
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2306




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"USA v. Garcia-Rivas" (2007). 2007 Decisions. Paper 817.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/817


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2306


                          UNITED STATES OF AMERICA,
                                                Appellant

                                           v.

                               GERRY GARCIA-RIVAS


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           D.C. Criminal No. 05-cr-00327-1
                              (Honorable Edwin M. Kosik)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 23, 2007

       Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN*, Circuit Judges.

                                  (Filed: July 3, 2007)


                              OPINION OF THE COURT



SCIRICA, Chief Judge.




   *
    The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
       The Government appeals the District Court’s decision to sentence Gerry Garcia-

Rivas to twelve months and one day in prison for illegal re-entry into the United States

following deportation for an aggravated felony in violation of 8 U.S.C. § 1326(a) and

(b)(2). Our recent decision in United States v. Vargas, 477 F.3d 94 (3d Cir. 2007)

controls this case. We will vacate the sentence and remand for resentencing.

                                              I.

       A grand jury indicted Garcia-Rivas for illegal re-entry into the United States

following deportation for an aggravated felony. Garcia-Rivas pled guilty to the

indictment. The Government prepared a pre-sentence report, to which there were no

objections. The report established the Sentencing Guidelines range as forty-six to fifty-

seven months.

       At sentencing, defense counsel requested a “non-guideline” sentence to avoid

unmerited disparities under 18 U.S.C. § 3553(a)(6): “You see, Your Honor, in some

districts, there are fast-track programs where, in exchange for a prompt guilty plea, as this

Defendant has given, there are reductions, and Courts have recognized that that disparity,

where we don’t have a fast-track program, merits the non-guideline sentence.” The

District Court then questioned defense counsel about fast-track programs. Defense

counsel replied fast-track programs exist in “border states.” Defense counsel stated that

in one of his other cases before the District Court for the Northern District of Illinois, the

court granted a departure under similar circumstances because it did not have a fast-track

program. Defense counsel requested that the District Court consider the lack of a fast-

                                               2
track program as a factor in determining a reasonable sentence, claiming it was only due

to Garcia-Rivas’s misfortune in being arrested in a non-fast-track district that he would

not be given consideration for his prompt guilty plea.

       In fashioning the appropriate sentence, the District Court stated:

       A sentence has to act as a deterrent, and this is where it becomes difficult,
       when there’s disparity in the sentencing. And as counsel pointed out,
       because of the nature of this offense, the Courts, including our own Courts,
       have departed from the guidelines, even though those guidelines are
       appropriate, as calculated when applying an offense.

After considering additional factors, such as Garcia-Rivas’s alcohol problem and family

situation, the District Court imposed a sentence of twelve months and one day in prison.

                                             II.

       We have jurisdiction to review Garcia-Rivas’s sentence for reasonableness under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(b)(1) and (3).

       This case is governed by our recent decision in Vargas. Vargas was indicted by a

grand jury as an aggravated felon1 who re-entered the United States after being deported,

a violation of 8 U.S.C. § 1326(a) and (b)(2). Vargas contended the District Court should

have considered the disparity between fast-track and non-fast-track districts in fashioning

his sentence. Vargas, 477 F.3d at 98. We observed that nearly every court of appeals in

the United States had rejected the argument that the sentencing disparity created by fast-



   1
     Vargas had been convicted of a knife-point felony. Vargas, 477 F.3d at 102–103.
He contended that his family circumstances, including the health problems of his wife and
son, counseled toward reducing his sentence. Id. at 97–98.

                                             3
track programs was unwarranted. Id. at 98–99 (citations omitted). In rejecting this

argument, courts generally relied on Congress’s explicit approval of fast-track programs

in section 401(m) of the Prosecutorial Remedies and Other Tools to End the Exploitation

of Children Today Act, Pub. L. No. 108-21, 117 Stat. 650, 675 (2003). Vargas, 477 F.3d

at 98–99. We agreed that a sentencing disparity authorized by Congress could not be

considered unwarranted under § 3553(a)(6). Id. at 100.

       When arguing for a reduction based on disparate treatment under § 3553(a)(6), the

burden is on the defendant to demonstrate similarity by showing the other defendant’s

circumstances were exactly parallel. Id. (citing United States v. Charles, 467 F.3d 828,

833 n.7 (3d Cir. 2006)). No such showing was made by Vargas. Id. Moreover, the

establishment of fast-track programs is a decision of the Attorney General and

Congress—the establishment of advisory sentencing guidelines is appropriately

considered by the Sentencing Commission, not individual courts. Id.

       When the District Court sentenced Garcia-Rivas on March 14, 2006, we had not

decided the issue in Vargas. The District Court took into account that Garcia-Rivas

would have had a lower sentence had he been arrested in a district with a fast-track

program. Additionally, Garcia-Rivas made no showing that his circumstances were

exactly parallel to those of defendants given lower sentences in non-fast-track districts.

       As in Vargas, it was unreasonable to consider the disparity between fast-track and

non-fast-track districts in issuing a sentence of twelve months and one day when the

advisory guidelines range was forty-six to fifty-seven months.

                                              4
       We also note the District Court appears to have considered Garcia-Rivas’s history

of alcohol abuse as a factor justifying a below guideline sentence. At sentencing, defense

counsel requested that the court consider Garcia-Rivas’s history of alcohol abuse and

alcoholism, claiming this history was “basically responsible” for his criminal history.

The District Court acknowledged that Garcia-Rivas may have been under the influence of

alcohol when he brandished a knife during the robbery. The District Court then stated

that Garcia-Rivas had acted responsibly for most of the time he was in this country,

except for his alcohol problem.

       A trial court is required to consider any pertinent policy statement issued by the

Sentencing Commission in shaping a sentence. 18 U.S.C. § 3553(a)(5). The Sentencing

Guidelines provide that “[d]rug or alcohol dependence or abuse is not reason for a

downward departure.” USSG § 5H1.4. In a recent case, the United States Court of

Appeals for the Eighth Circuit held “drug addiction is not a proper basis for sentencing a

defendant below the advisory Guidelines range, absent extraordinary circumstances.”

United States v. Hodge, 469 F.3d 749, 757 (8th Cir. 2006) (citing United States v. Likens,

464 F.3d 823, 826 (8th Cir. 2006); United States v. Lee, 454 F.3d 836, 839 (8th Cir.

2006)). On remand, the District Court should consider the policy statements promulgated

by the Sentencing Commission together with the other § 3553(a) factors.

                                            III.

       For the foregoing reasons, we will vacate the sentence and remand to the District

Court for resentencing.

                                             5
