                              In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 05-2713
UNITED STATES OF AMERICA,
                                                    Plaintiff-Appellee,
                                  v.

HECTOR MARTINEZ-MARTINEZ,
                                               Defendant-Appellant.
                           ____________
             Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
            No. 04 CR 204—Larry J. McKinney, Chief Judge.
                           ____________
    ARGUED JANUARY 24, 2006—DECIDED MARCH 23, 2006
                           ____________


  Before RIPPLE, ROVNER and EVANS, Circuit Judges.
  RIPPLE, Circuit Judge. Hector Martinez pleaded guilty
to reentering the United States after having been deported
following a conviction for an aggravated felony. See 8 U.S.C.
§ 1326(a), (b)(2). At sentencing, Mr. Martinez requested a
sentence of 24 months’ imprisonment or less; he contended
that a longer sentence would create a sentencing disparity
between himself and similarly situated defendants prose-
cuted in districts that employ a “fast-track” sentencing
program for this type of crime. The district court rejected
Mr. Martinez’s request and sentenced him to 41 months’
imprisonment—the low end of the advisory guideline range
2                                                 No. 05-2713

for his offense level and his criminal history category. The
district court also imposed a term of three years’ supervised
release. Mr. Martinez now contends that his sentence is
unreasonable in light of the sentencing considerations set
forth in 18 U.S.C. § 3553(a). For the reasons set forth in this
opinion, we affirm the judgment of the district court.


                              I
                     BACKGROUND
  In 1990, Mr. Martinez, a citizen of Mexico, was convicted
of two counts of attempted murder and served five-and-
one-half years in prison before he was deported to Mexico.
In December 2004, immigration agents, acting on an anony-
mous tip, found Mr. Martinez working at a restaurant in
Kokomo, Indiana. Mr. Martinez admitted to these agents
that he reentered the United States, and was immediately
arrested. He later pleaded guilty to one count of illegal
reentry.
  Mr. Martinez was sentenced after the Supreme Court
decided United States v. Booker, 543 U.S. 220 (2005). The
district court, therefore, treated the Guidelines as advisory
and looked to the sentencing factors set forth in 18 U.S.C.
§ 3553(a) to determine the proper sentence. At sentenc-
ing, Mr. Martinez did not object to his offense level or
criminal history score, as set forth in his presentence
investigation report. Instead, emphasizing that 18 U.S.C.
§ 3553(a)(6) required the district court to consider the
need to avoid unwarranted sentence disparities, Mr.
Martinez requested a sentence no longer than 24 months. He
relied upon several cases in other district courts in which
seemingly similarly situated defendants were sentenced
No. 05-2713                                                       3

below the Guidelines recommendation.1 These courts
recognized a disparity in sentences between those districts
that employ fast-track procedures for sentencing defendants
convicted under 8 U.S.C. § 1326, and districts that do not.
Accordingly, these courts took that discrepancy into account
in determining the sentence imposed on the defendant.
  In this case, the district court stated that it considered
the factors outlined in § 3553(a), but nevertheless concluded
that the recommended sentencing range of 41 to 51 months
was “reflected in the application of [§] 3553(a)” and that the
range was “[m]ore than reasonable.” R.30 at 34-35. The
district court did not discuss specifically the pos-
sible disparity between sentences in districts that employ a
fast-track procedure and those that do not. Nevertheless, it
did acknowledge Mr. Martinez’s arguments when it stated
that “[§] 3553(a) carries a lot of suggestions for the Court,
not the least of which are those suggested by your lawyer.”
Id. at 34. The district court then went on to consider other
§ 3553(a) factors including the nature and circumstances of
Mr. Martinez’s offense, his history and character and the
need to impose a sentence that reflects the seriousness of the
offense and promotes respect for the law.




1
  See United States v. Ramirez-Ramirez, 365 F. Supp. 2d 728 (E.D.
Va. 2005); United States v. Huerta-Rodriguez, 355 F. Supp. 2d 1019
(D. Neb. 2005); United States v. Galvez-Barrios, 355 F. Supp. 2d 958
(E.D. Wis. 2005).
4                                                No. 05-2713

                             II
                       DISCUSSION
  Mr. Martinez contends that his 41-month sentence was
unreasonable because the district court created an un-
warranted sentencing disparity in contravention of
§ 3553(a)(6). Mr. Martinez’s sentence is within a properly
calculated guideline range and is therefore presump-
tively reasonable. See United States v. Paulus, 419 F.3d 693,
700 (7th Cir. 2005); United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). Thus, in order to prevail, Mr. Martinez
must rebut this presumption of reasonableness. Mykytiuk,
415 F.3d at 608.
  Mr. Martinez bases his unreasonableness claim on the
disparity between his sentence and sentences of other
defendants who are similarly situated. He claims that
this disparity is caused by the practice of some federal
judicial districts’ to employ a fast-track sentencing program.
Fast-tracking is a procedure that began in states bordering
Mexico, where district courts were experiencing high case
loads due to immigration matters. See United States v.
Morales-Chaires, 430 F.3d 1124, 1127 (10th Cir. 2005). In its
original form, prosecutors offered defendants reduced
sentences through charge-bargaining or through a motion
for downward departure in exchange for pre-indictment
guilty pleas. Id.
  Congress has, through various measures, indicated its
approval of fast-track procedures. In 2003, Congress enacted
the Prosecutorial Remedies and Tools Against the Exploita-
tion of Children Today Act of 2003 (“PROTECT Act”),
which, although not addressing specifically the practice of
charge-bargaining, specifically sanctioned the use of fast-
track programs. The PROTECT Act required the United
No. 05-2713                                                  5

States Sentencing Commission to develop a guideline
“authorizing a downward departure of not more than 4
levels if the Government files a motion for such a departure
pursuant to an early disposition program authorized by the
Attorney General and the United States Attor-
ney.” PROTECT Act, Pub. L. No. 108-21, § 401(m)(2)(B),
117 Stat. 650 (2003), 28 U.S.C. § 994 (note). Prior to the
enactment of the PROTECT Act, the House of Representa-
tives issued a report regarding a companion bill, the
Child Abduction Prevention Act of 2003, and commented on
its reasons for legislating in this area. H.R. Rep. No. 108-48,
at 7 (2003). According to this report, Congress intended to
provide relief to districts with crowded immigration dockets
by recognizing the authority of the courts to grant “limited
departures” in accordance with structured early disposition
programs. Id. Yet, the report noted that such programs
should be reserved for offenses “whose high incidence
within the district has imposed an extraordinary strain on
the resources of that district as compared to other districts.”
Id. Congress thus recognized that disparities would exist
between the sentences of those in fast-track jurisdictions and
those outside of those jurisdictions. Congress further noted
that its recognition of early disposition programs “does not
confer authority to depart downward on an ad hoc basis in
individual cases.” Id. The Sentencing Commission devel-
oped U.S.S.G. § 5K3.1 to implement Congress’ directive:
    Upon motion of the Government, the court may depart
    downward not more than 4 levels pursuant to an early
    disposition program authorized by the Attorney Gen-
    eral of the United States and the United States Attorney
    for the district in which the court resides.
  Given Congress’ explicit recognition that fast-track
procedures would cause discrepancies, we cannot say that a
sentence is unreasonable simply because it was imposed in
6                                                No. 05-2713

a district that does not employ an early disposition pro-
gram. Congress simply has authorized prosecutorial
authorities to weigh the benefits of a longer sentence against
the burdens of delay and oppressive case management
issues and, in such situations, to determine that the public
good requires that the latter value be given preference. The
First Circuit has suggested: “It is arguable that even post-
Booker, it would never be reasonable to depart downward
based on disparities between fast-track and non-fast-track
jurisdictions given Congress’ clear (if implied) statement in
the PROTECT Act provision that such disparities are
acceptable.” United States v. Martinez-Flores, 428 F.3d 22, 30
n.3 (1st Cir. 2005).
  Mr. Martinez argues that the lack of a fast-track pro-
gram unfairly disadvantaged him as compared to those
defendants sentenced for the same crime in districts that
do have such a program. He also argues that his sen-
tence is unreasonable because some courts in districts
that do not have fast-track procedures, in an effort to
avoid sentencing disparity, have imposed sentences
shorter than the one recommended by the Guidelines for
defendants convicted under § 1326. See, e.g., United States v.
Santos, 406 F. Supp. 2d 320, 325-29 (S.D.N.Y. 2005); United
States v. Ramirez-Ramirez, 365 F. Supp. 2d 728, 732-33 (E.D.
Va. 2005); United States v. Huerta-Rodriguez, 355 F. Supp. 2d
1019, 1030-31 (D. Neb. 2005); United States v. Galvez-Barrios,
355 F. Supp. 2d 958, 963-64 (E.D. Wis. 2005). That some
courts have chosen to avoid disparity does not mean that all
district courts are compelled to adjust a sentence downward
from the advisory guidelines range in order for that sen-
tence to be reasonable. As the Tenth Circuit recognized, fast-
tracking in other jurisdictions creates the possibility of
sentencing disparities; yet such a disparity is merely one of
several factors that must be considered in crafting a particu-
No. 05-2713                                                   7

lar defendant’s sentence. Morales-Chaires, 430 F.3d at 1131.
A sentence within the advisory guidelines range presump-
tively takes into consideration all of the other factors set
forth in § 3553(a), and Mr. Martinez has not satisfied his
burden of rebutting the reasonableness of his sentence.
   The district court considered Mr. Martinez’s argument
on sentence disparity along with several other factors
listed in § 3553(a). The district court understandably
found most persuasive the nature and circumstances of
his illegal reentry shortly after being deported and his
prior aggravated felony conviction. The district court also
stated emphatically that the sentence imposed was ne-
cessary to reflect the seriousness of the offense, to pro-
mote respect for the law and to provide just punishment for
the offense. Any disparity between Mr. Martinez’s sentence
and the sentences of individuals sentenced in fast-track
jurisdictions, or between his sentence and those of individu-
als receiving reduced sentences based on the perception of
sentencing disparities due to the use of fast-track proce-
dures, was considered appropriately as a single, and not
controlling, factor. We cannot say that Mr. Martinez’s
sentence was unreasonable.
  Mr. Martinez next argues that the district court committed
procedural error when it failed to discuss specifically §
3553(a)(6) and its concern with the disparity in sentences. At
a minimum, due process requires sentencing courts to
calculate the defendant’s guidelines range and to provide
the defendant an opportunity to request a sentence different
from the one recommended under the Guidelines. United
States v. Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir.
2005). The court must then consider the § 3553(a) factors and
articulate those factors relevant to the sentence that it
decides to impose. Id.; see also United States v. Dean, 414 F.3d
725, 729 (7th Cir. 2005).
8                                                  No. 05-2713

   Mr. Martinez cannot show that the district court com-
mitted a procedural error in calculating his sentence. The
district court properly calculated the applicable guide-
lines range and provided Mr. Martinez the opportunity
to argue why he was entitled to a different sentence based
on any of the § 3553(a) factors. The court then reminded Mr.
Martinez that his crime carries a statutory maxi-
mum sentence of 20 years and enumerated the § 3553(a)
factors that justify the 41-month sentence. Although the
district court did not specifically articulate its view on the
weight to be accorded the issue of sentencing disparity
in light of § 3553(a)(6), it was not required to discuss
each factor’s effect on the sentence. See United States v.
George, 403 F.3d 470, 472-73 (7th Cir. 2005). It is enough that
the district court acknowledged Mr. Martinez’s argu-
ments and justified the sentence on the basis of other factors.
See United States v. Brock, 433 F.3d 931, 935-36 (7th Cir. 2006);
Rodriguez-Alvarez, 425 F.3d at 1046; Dean, 414 F.3d at 729;
George, 403 F.3d at 472-73. The district court therefore did
not commit procedural error when sentencing Mr. Martinez.


                         Conclusion
  For the foregoing reasons, we affirm the judgment of the
district court.
                                                     AFFIRMED
No. 05-2713                                             9

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—3-23-06
