                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-10-2009

USA v. Gil-Hernandez
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1125




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                        No. 08-1125
                                       ____________

                           UNITED STATES OF AMERICA

                                            v.

                               JOSE GIL-HERNANDEZ,

                                             Appellant

                                       ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 07-cr-00227)
                     District Judge: Honorable Thomas M. Golden
                                     ____________

                         Argued January 6, 2009
   Before: CHAGARES, HARDIMAN, Circuit Judges and GARBIS,* District Judge

                               (Filed: February 10, 2009)

Robert Epstein (Argued)
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106-0000
      Attorney for Appellant



      *
        The Honorable Marvin J. Garbis, Senior District Judge for the United States
District Court for the District of Maryland, sitting by designation.
Robert A. Zauzmer (Argued)
Anita D. Eve
Office of United States Attorney
Suite 1250
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106-0000
       Attorneys for Appellee

                                      ____________

                               OPINION OF THE COURT
                                    ____________

HARDIMAN, Circuit Judge.

       Jose Gil-Hernandez appeals his sentence for reentry after deportation in violation

of 8 U.S.C. §§ 1326(a) and (b)(2). We will affirm.

                                             I.

       As we write exclusively for the parties, who are familiar with the procedural

context and factual history of the case, we recount only those facts necessary to our

decision.

       Gil-Hernandez entered an open guilty plea in the United States District Court for

the Eastern District of Pennsylvania to a single count of reentry after deportation in

violation of 8 U.S.C. §§ 1326(a) and (b)(2). Under his plea, Gil-Hernandez reserved the

right to challenge the imposition of a sentencing enhancement under 8 U.S.C.

§ 1326(b)(2) and USSG § 2L1.2(b). According to the Presentence Investigation Report,




                                              2
Gil-Hernandez had an offense level of 21 1 and a criminal history category of IV. Neither

Gil-Hernandez nor the Government objected to this calculation, and the District Court

adopted it, resulting in an advisory Guidelines imprisonment range of 57-71 months.

       In both his sentencing memorandum and at the sentencing hearing before the

District Court, Gil-Hernandez sought a downward variance, arguing that because the

Eastern District of Pennsylvania did not have a fast-track program for illegal reentry

defendants, he would be subject to an unwarranted sentencing disparity compared to

illegal reentry defendants in jurisdictions that have such a program. 18 U.S.C.

§ 3553(a)(6). The District Court denied Gil-Hernandez’s motion and sentenced him to 57

months imprisonment. Gil-Hernandez now appeals.2

                                            II.

       District courts must consider “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar conduct.”




       1
        The base offense level was 8 pursuant to USSG § 2L1.2(a). The District Court
then applied a 16-point enhancement based on Gil-Hernandez’s previous deportation for
prior conviction for a drug trafficking offense for which the sentence imposed exceeded
13 months. USSG § 2L1.2(b)(1)(A)(i). Gil-Hernandez then received a three-point
reduction for acceptance of responsibility. USSG § 3E1.1.

       2
        The District Court had jurisdiction over the alleged violation of federal
immigration laws pursuant to 18 U.S.C. § 3231. We exercise jurisdiction over an appeal
of Gil-Hernandez’s sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We
review procedural errors in sentencing for abuse of discretion. Gall v. United States, 128
S. Ct. 586, 591 (2007). Procedural error includes a sentencing court’s refusal to consider
the § 3553(a) factors. Id. at 597.

                                             3
18 U.S.C. § 3553(a)(6). In United States v. Vargas, 477 F.3d 94 (3d Cir.), cert. denied,

128 S. Ct. 199 (2007), we held that a disparity produced by the existence or absence of

fast-track programs could not be considered “unwarranted” because Congress implicitly

sanctioned that disparity when it authorized the selective institution of such programs in

the PROTECT Act, Pub. L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003). See

Vargas, 477 F.3d at 98-99. We found that “the establishment of fast-track programs is a

matter left to Congress and the Attorney General,” and where Congress authorizes a

disparity in sentencing, the disparity cannot serve as a ground to vary from the

Guidelines. Id. at 100.

       Here, the District Court relied exclusively on Vargas in rejecting Gil-Hernandez’s

request for a downward variance pursuant to § 3553(a)(6). Gil-Hernandez argues that

Vargas is no longer good law in light of the Supreme Court’s decision in Kimbrough v.

United States, 128 S. Ct. 558 (2007).

       We have not yet spoken precedentially on the complicated and important question

of Kimbrough’s impact, if any, on fast-track sentencing disparities.3 We decline to do so


       3
        Circuit courts of appeals have answered the question differently. Compare United
States v. Seval, No. 07-1204-cr., 2008 WL 4376826 (2d Cir. Sept. 25, 2008), and United
States v. Rodriguez, 527 F.3d 221, 229 (1st Cir. 2008) (finding that a variance was
appropriate after Kimbrough “absent an unambiguous congressional directive barring
sentencing courts from considering” the disparity), with United States v. Vega-Castillo,
540 F.3d 1235, 1238-39 (11th Cir. 2008), and United States v. Gomez-Herrera, 523 F.3d
554, 562-63 (5th Cir. 2008), cert. denied, 129 S. Ct. 624 (Dec. 1, 2008) (holding that
Kimbrough is not controlling on the issue of fast-track disparity because it “addressed
only a district court’s discretion to vary from the Guidelines based on disagreement with

                                             4
in this case, however, because our review of the record makes it ineluctably clear that Gil-

Hernandez did not proffer any evidence that he was treated differently than any similarly-

situated person who was prosecuted in a fast-track jurisdiction. Gil-Hernandez bore the

burden of demonstrating similarity “by showing that other defendants’ ‘circumstances

exactly paralleled’ his.” Vargas, 477 F.3d at 100 (quoting United States v. Charles, 467

F.3d 828, 8333 n.7 (3d Cir. 2006)). Gil-Hernandez made only general reference to the

fact that individuals in fast-track jurisdictions are treated more favorably than those

arrested in other jurisdictions, such as the Eastern District of Pennsylvania. Such

generalized statements are plainly insufficient to demonstrate that Gil-Hernandez suffered

an unwarranted sentencing disparity pursuant to § 3553(a)(6) and a court should not

consider sentences imposed on defendants in other cases in the absence of evidence.

Vargas, 477 F.3d at 100.

       At oral argument, Gil-Hernandez’s counsel maintained that marshalling evidence

at his sentencing hearing regarding the punishments given to similarly-situated defendants

would have been a pointless exercise because Vargas foreclosed any argument under

§ 3553(a)(6) by making it clear that disparities between defendants in fast-track and non-

fast track jurisdictions were warranted. We disagree. Gil-Hernandez was sentenced on

January 7, 2008; Kimbrough – the case which Gil-Hernandez contends overruled Vargas




Guidelines, not Congressional policy”) (emphasis in original).

                                              5
– was decided almost a month earlier on December 10, 2007.4 Accordingly, Gil-

Hernandez was free to argue that Kimbrough abrogated our holding in Vargas and he

could have presented evidence regarding the sentencing disparity to allow the District

Court to make an individualized assessment in his case.5 Gall, 128 S. Ct. at 597. Gil-

Hernandez failed to do so and, therefore, did not carry his burden of proof in this case.

                                             III.

       Gil-Hernandez also challenges the use of a prior conviction to raise his statutory

maximum punishment. The District Court applied 8 U.S.C. § 1326(b)(2), which increases

the maximum penalty for illegal reentry from 2 years to 20 years for defendants who were

previously deported following an aggravated felony conviction. Gil-Hernandez argues

that his Fifth and Sixth Amendment rights were violated because the fact of his prior

conviction was neither charged in the indictment nor admitted at his guilty plea or proved

to a jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

As Gil-Hernandez concedes, this argument is foreclosed by the Supreme Court’s holding

in Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), and our decisions in


       4
        Gil-Hernandez’s sentencing memorandum, filed on November 20, 2007,
referenced the Supreme Court’s grant of certiorari in Kimbrough in order to preserve his
objection on the unwarranted disparity issue. However, Gil-Hernandez made no
reference to facts sufficient to show that he was treated differently than similarly-situated
defendants in either his sentencing memorandum (which preceded Kimbrough) or at the
sentencing hearing (which post-dated Kimbrough).

       5
       If Gil-Hernandez needed time to marshal evidence after Kimbrough was decided,
he could have filed a motion to continue the sentencing hearing.

                                              6
United States v. Coleman, 451 F.3d 154, 159-60 (3d Cir. 2006), and United States v.

Ordaz, 398 F.3d 236, 241 (3d Cir. 2005).

                                           IV.

      For the foregoing reasons, we will affirm the judgment of the District Court.




                                           7
