12–1438-cr
United States v. Lopez
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY 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. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 8th day of May, two thousand thirteen.

PRESENT: RALPH K. WINTER
         GUIDO CALABRESI,
         GERARD E. LYNCH,
                        Circuit Judges.

————————————————————————

UNITED STATES OF AMERICA,
                        Appellee,

                         v.                                            No. 12-1438-cr

JAIRO ANTONIO MOLINA LOPEZ,
also known as Jairo Molina,

                                   Defendant - Appellant.

————————————————————————

FOR APPELLEE:                      P. IAN MCGINLEY, Assistant United States Attorney
                                   (Andrew L. Fish, Assistant United States Attorney, on
                                   the brief), for Preet Bharara, United States Attorney for
                                   the Southern District of New York, New York, New
                                   York.

FOR APPELLANT:                     TONI MESSINA, New York, New York.
       Appeal from the United States District Court for the Southern District of New York

(John G. Koeltl, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant Jairo Antonio Molina Lopez appeals from a judgment of

conviction entered on April 5, 2012, in the United States District for the Southern District

of New York following his guilty plea to illegal reentry after deportation for an aggravated

felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). The district court imposed a

below-guidelines sentence of 40 months’ imprisonment. On appeal, Molina Lopez argues

that differences among districts in the administration of “fast-track” programs and the use of

an illegal re-entrant’s prior felony convictions to compute both his criminal history category

and his offense level (“double-counting”) violate his equal protection and due process rights,

and that his sentence is substantively unreasonable. We assume the parties’ familiarity with

the facts, the procedural history of the case, and the specification of issues on appeal, to

which we refer only as necessary to explain our decision.

       First, Molina Lopez argues that the United States Attorney’s categorical exclusion

of certain defendants from participation in the fast-track program1 creates a sentencing


       1
        Fast-track programs allow defendants charged with illegal reentry under 8 U.S.C.
§ 1326 to plead guilty and waive certain rights, including the rights to file pretrial motions
and to appeal or collaterally attack their sentences, in exchange for a lower sentence. See
United States v. Mejia, 461 F.3d 158, 160-61 (2d Cir. 2006); see also U.S.S.G. § 5K3.1
(authorizing court to depart downward “not more than 4 levels” pursuant to a fast-track
program). Although fast-track programs originated in southwestern border states, the
Department of Justice now authorizes the implementation of fast-track programs in all

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disparity that violates the equal protection guarantee of the Fifth Amendment’s Due

Process Clause. See U.S. Const. amend. V; Bolling v. Sharpe, 347 U.S. 497, 500 (1954).2

Because Molina Lopez did not raise this argument to the district court, we review for

plain error. See United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010). To meet this

burden, Molina Lopez must show (1) an error, (2) that is plain, (3) that affects substantial

rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial

proceedings. See id. Although this Court has not yet addressed the precise question

raised by Molina Lopez, our sister circuits who have addressed it have concluded that

limiting the availability of the fast-track program does not violate equal protection.3


districts prosecuting felony reentry cases. See Office of Deputy Att’y Gen, Dep’t Policy on
Early Disposition or “Fast-Track” Programs, Jan. 31, 2012, available at
http://www.justice.gov/dag/fast-track-program.pdf. Under this authorization, however, “[t]he
United States Attorney retains the discretion to limit or deny a defendant’s participation in
a fast-track program,” based on factors such as the defendant’s prior violent felony
convictions, and prior deportations. Id. The Southern District of New York implemented
its fast-track program on March 5, 2012. The United States Attorney has exercised his
discretion to exclude from the program defendants who have been convicted of a serious
violent felony or serious drug defense, defendants with seven or more criminal history points,
and defendants whose prior criminal history involves certain immigration offenses. Molina
Lopez is ineligible for the fast-track program because he has seven or more criminal history
points.
       2
        To the extent that Molina Lopez argues that the program violates his substantive due
process rights, our analysis is the same. See, e.g., Chapman v. United States, 500 U.S. 453,
465 (1991) (“[A]n argument based on equal protection essentially duplicates an argument
based on due process.”).
       3
          See United States v. Martinez, 482 Fed. Appx. 160, 162 (7th Cir. 2012)
(unpublished); United States v. Lopez, 650 F.3d 952, 963 (3rd Cir. 2011); United States v.
Lopez-Velasquez, 526 F.3d 804, 808 (5th Cir. 2008); United States v. Gaytan, 226 Fed.
Appx. 519, 522 (6th Cir. 2007) (unpublished); United States v. Andujar-Arias, 507 F.3d 734,
749 (1st Cir. 2007), abrogated on other grounds by United States v. Rodriguez, 527 F.3d 221
(1st Cir. 2008); United States v. Campos-Diaz, 472 F.3d 1278, 1279-80 (11th Cir. 2006);
United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir. 2006).

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“Whether an error is plain is determined by reference to the law as of the time of appeal.”

United States v. Gamez, 577 F.3d 394, 400 (2d Cir. 2009) (internal quotation marks

omitted). “Typically, we will not find plain error where the operative legal question is

unsettled.” Id. Molina Lopez fails to identify any precedent supporting his argument;

moreover, if, as we have held, a reduced sentence is not required by the disparity created

when some districts have fast-track programs and others have none at all, see, e.g., United

States v. Hendry, 522 F.3d 239, 241 (2d Cir. 2008); Mejia, 461 F.3d at 163, the more

limited disparities in the administration of such programs can hardly be problematic.

Under these circumstances, Molina Lopez cannot establish plain error.

       Second, also for the first time on appeal, Molina Lopez contends that U.S.S.G.

§ 2L1.2, which imposes a 16-level enhancement if the defendant was removed after “a

conviction for a felony that is . . . a drug trafficking offense for which the sentence

imposed exceeded 13 months” or for “a crime of violence[,]” U.S.S.G.

§ 2L1.2(b)(1)(A)(i)-(ii), denies him equal protection and due process to the extent that the

prior conviction also increases his criminal history category. We have repeatedly rejected

such “double-counting” objections to illegal reentry sentences, see, e.g., United States v.

Pereira, 465 F.3d 515, 522 (2d Cir. 2006); United States v. Carrasco, 313 F.3d 750, 757

n.2 (2d Cir. 2002); United States v. Torres-Echavarria, 129 F.3d 692, 698-99 (2d Cir.

1997), and other circuits have expressly rejected the specific constitutional arguments

made by Molina Lopez, see, e.g., United States v. Ruiz-Chairez, 493 F.3d 1089, 1091-92

(9th Cir. 2007); United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992). We thus

find no error, let alone plain error, in his sentence.

                                               4
       Finally, Molina Lopez contends that his sentence was substantively unreasonable

because his criminal history category overstated the severity of his past crimes, and

because the sentence he received was unduly harsh compared to the seven-month

sentence his wife received for the same offense. We are not persuaded.

       “Assuming that the district court’s sentencing decision is procedurally sound, the

appellate court should then consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51

(2007). “[W]hen conducting substantive review, we take into account the totality of the

circumstances, giving due deference to the sentencing judge’s exercise of discretion, and

bearing in mind the institutional advantages of district courts.” United States v. Cavera,

550 F.3d 180, 190 (2d Cir. 2008) (en banc). The weight to be given to sentencing

disparities, “like the weight to be given any § 3553(a) factor, is a matter firmly committed

to the discretion of the sentencing judge.” United States v. Florez, 447 F.3d 145, 158 (2d

Cir. 2006) (internal quotation marks omitted). Only in exceptional cases, “where the trial

court’s decision cannot be located within the range of permissible decisions,” Cavera, 550

F.3d at 189 (internal quotation marks omitted), will we set aside a district court’s

substantive determination. “[I]n the overwhelming majority of cases, a Guidelines

sentence will fall comfortably within the broad range of sentences that would be

reasonable in the particular circumstances.” United States v. Perez-Frias, 636 F.3d 39, 43

(2d Cir. 2011) (internal quotation marks and citation omitted). “It is therefore difficult to

find that a below-Guidelines sentence is unreasonable.” Id.


                                              5
       Applying the foregoing principles, we conclude that Molina Lopez’s sentence,

which was 17 months below the bottom of the applicable guideline range, was

reasonable. The district court carefully considered Molina Lopez’s criminal history and

the need to avoid unwarranted sentencing disparities. Moreover, the difference between

Molina Lopez’s sentence and his wife’s is reasonable given that she was in Criminal

History Category I, based on a single prior conviction, while Molina Lopez, had nine

prior criminal convictions, and was in Criminal History Category IV. The district court’s

sentence, therefore, was well within the range of permissible decisions.

       We have considered all of Molina Lopez’s remaining arguments and find them to

be without merit.

       For the foregoing reasons, the judgment of the district court is AFFIRMED.




                                   FOR THE COURT:
                                   Catherine O’Hagan Wolfe, Clerk of Court




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