                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         June 9, 2006
                      UNITED STATES CO URT O F APPEALS               Elisabeth A. Shumaker
                                                                         Clerk of Court
                                   TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                         No. 05-4301
 v.
                                                   (D.C. No. 2:05-cr-00298)
                                                          (D. Utah)
 JU A N TELLEZ-A CO STA ,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      After pleading guilty to illegal re-entry following removal from the United

States, see 8 U .S.C. § 1326, Juan Tellez-Acosta was sentenced to 46 months’

imprisonment, the low end of the applicable Guidelines range. He now appeals,

claiming that the district court erred by failing to consider sentence disparities




      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G ). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
caused by the use of so-called “fast-track” programs in other jurisdictions. 1 W e

conclude that the district court did not err and affirm M r. Tellez-Acosta’s

sentence.

      Following his guilty plea, M r. Tellez-Acosta filed a motion for a downward

departure. Citing statistics published by the United States Sentencing

Commission, the motion argued that the District of Utah both imposes

significantly higher sentences and grants substantially fewer downward departures

for immigration violations than districts that use fast-track programs. M r. Tellez-

Acosta asked the district court to correct this disparity.

      At the sentencing hearing, the district court noted M r. Tellez-Acosta’s

argument but rejected it:

      On the issue of fast track sentencing disparity, while the C ourt
      acknowledges the numerical disparity created between districts which
      employ the so-called fast-track program for illegal reentry cases and
      those which do not, this is not a matter appropriately before this Court.
      This Court declines to sua sponte impose a fast-track program in this
      district, believing that in doing so it would ironically create disparity
      in and of itself.
             Further, the Court cannot ignore the fact that the vast majority of
      districts in the federal court system do not have such a program. To
      attempt to account for the fast-track program, which is in place in only
      approximately 15 percent of districts, would undermine the federal
      sentencing system, which is uniformity am ong similarly situated

      1
        In a “fast-track” program, “defendants accused of certain immigration
offenses . . . plead guilty early in the process and waive their rights to file certain
motions and to appeal, in exchange for a shorter sentence. The shorter sentence
[i]s accomplished either by charge-bargaining or by promising to recommend a
downward departure at sentencing.” United States v. M orales-Chaires, 430 F.3d
1124, 1127 (10th Cir. 2005).

                                          -2-
      defendants. For these reasons, the C ourt declines to depart downward
      on this basis.

Tr. of Sentencing at 11, R. Vol. II. M r. Tellez-Acosta timely appealed, claiming

that “any sentence failing to consider these disparities should be inherently

unreasonable.”

      In reviewing the reasonableness of a sentence, we review legal questions

de novo and factual questions for clear error. United States v. Kristl, 437 F.3d

1050, 1055 (10th Cir. 2006). A sentence within the Guidelines range is

presumptively reasonable, although the presumption may be rebutted by a

showing “that the sentence is unreasonable when viewed against the other factors

delineated in [18 U.S.C.] § 3553(a).” Id. at 1054.

      Because M r. Tellez-Acosta’s sentence was within the advisory Guidelines

range, we presume that it was reasonable unless he has met his burden of showing

otherwise. W e conclude that he has not done so. In the recent case of United

States v. M orales-Chaires, we w ere faced with a claim nearly identical to M r.

Tellez-Acosta’s. See 430 F.3d 1124. The defendant in M orales-Chaires argued

for a downward departure because of “the disparities between sentences imposed

in districts where a ‘fast-track’ program exists for aliens accused of illegal reentry

and in districts, like Colorado, where no such ‘fast-track’ program exists.” Id. at

1126. The district court rejected his argument, “finding that ‘for the Court to

depart on this basis is in essence a violation of the doctrine of separation of



                                         -3-
powers because of interference with a prosecutor’s exercise of discretion in

charging and plea bargaining.’” Id. On appeal, we concluded that “we need not

resolve whether sentencing disparities caused by the existence of fast-track

programs in some jurisdictions are or are not, or may be in certain circumstances,

considered unwarranted under § 3553(a)(6).” 2 Id. at 1131. Rather, noting that

§ 3553(a)(6) “is but one of several factors for a court to consider in determining a

reasonable sentence,” we concluded that the district court’s analysis was

sufficient because it “reviewed all the factors listed in § 3553(a), including

§ 3553(a)(6), and concluded that they fully supported the sentence imposed.” Id.

      Similarly, in this case the district court’s analysis was sufficient. Although

unlike the court in M orales-Chaires, the district court in this case did not

explicitly “[go] through each of the statutory sentencing factors” at the sentencing

hearing, id. at 1126, we have repeatedly held that district courts need not “march

through § 3553(a)’s sentencing factors” before imposing sentences. United States

v. Rines, 419 F.3d 1104, 1107 (10th Cir. 2005), cert. denied, 126 S. Ct. 1089

(2006); United States v. Lopez-Flores, 444 F.3d 1218, 1222–23 (10th Cir. 2006);

United States v. Corchado, 427 F.3d 815, 821 (10th Cir. 2005), cert. denied, 126

S. Ct. 1811 (2006). M ore importantly, the district court did specifically address

§ 3553(a)(6), the sole factor on which M r. Tellez-A costa’s argument is based.

      2
       Section 3553(a)(6) directs sentencing courts to consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.”

                                         -4-
The court recognized the “numerical disparity” created by the use of fast-track

programs in other jurisdictions, but concluded that sua sponte applying fast-track

sentencing in Utah would “create disparity in and of itself.” Tr. of Sentencing at

11, R. Vol. II. Further, the court concluded that trying to account for fast-track

programs, “which [are] in place in only approximately 15 percent of districts,

would undermine . . . uniformity among similarly situated defendants.” Id.

(emphasis added). The record thus shows that the district court did not fail to

consider sentence disparities; rather, it simply rejected M r. Tellez-Acosta’s

argument as to the significance of fast-track programs w ith regard to

§ 3553(a)(6). W e cannot say in this case that the court’s evaluation of the

§ 3553(a) factors w as error.

      Because M r. Tellez-Acosta has not rebutted the presumption of

reasonableness for his Guidelines sentence, we AFFIRM his sentence.


                                       ENTERED FOR THE COURT



                                       David M . Ebel
                                       Circuit Judge




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