                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                      PUBLISH
                                                                       March 5, 2007
                      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. 05-4262
 v.

 M IG U EL A N G EL JA RR ILLO -LUNA,

          Defendant - Appellant.



           A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                        FOR T HE DISTRICT OF UTAH
                           (D .C. No. 05-CR-48-TC)


Karin M . Fojtik, Assistant United States Attorney, (and Stephen J. Sorenson,
Acting United States Attorney, on the brief), Salt Lake City, Utah, for Plaintiff -
Appellee.

Kent R. Hart (and Steven B. Killpack, Federal Public D efender, on the brief), Salt
Lake City, Utah, for Defendant - Appellant.


Before KELLY, A LA RC ÓN, * and HENRY, Circuit Judges.


KELLY, Circuit Judge.


      Defendant-Appellant M iguel Angel Jarrillo-Luna was convicted on a plea


      *
       The Honorable Arthur L. Alarcón, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.
of guilty to one count of illegal reentry by a previously deported alien in violation

of 8 U.S.C. § 1326(a), and he was sentenced to 46 months’ imprisonment

followed by two years’ supervised release. He now appeals his sentence, arguing,

inter alia, that the district court erred by failing to consider his argument that

sentencing disparities resulting from the existence of the fast-track program in

some districts–but not the district of Utah–justified a sentence below the range

dictated by the United States Sentencing Guidelines. See 18 U.S.C. § 3553(a)(6).

W e exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and affirm.



                                      Background

      M r. Jarrillo is a native of M exico, but he has lived much of his life in the

United States. He first crossed the border at age 12 and remained here illegally

until 1998, when, at the age of 27, he was deported following a conviction for

trafficking in methamphetamine and marijuana. Barely two months later, M r.

Jarrillo was arrested in Arizona for misdemeanor possession of marijuana and

received a citation and fine of $750. Then, in M ay 2004, M r. Jarrillo allegedly

attempted to sell two Russian assault rifles to an undercover police officer in

Ogden City, Utah. He was arrested almost a year later, indicted, and charged with

one count of illegally reentering the country. On June 21, 2005, M r. Jarrillo pled

guilty to that charge.

      In preparation for sentencing, the Probation Office prepared a Presentence

                                          -2-
Investigation Report (PSR). M r. Jarrillo’s base offense level was eight, but his

prior felony drug trafficking conviction led to a sixteen-level enhancement. See

U.S.S.G. § 2L1.2. W ith a three-level reduction for acceptance of responsibility,

see id. § 3E1.1, M r. Jarrillo’s total offense level was twenty-one. His prior felony

conviction and misdemeanor citation earned him four criminal history points, see

id. § 4A1.1, leading to a criminal history category of III, see id. ch. 5, pt. A

(sentencing table). Accordingly, the PSR determined that the Guideline

sentencing range for M r. Jarrillo was 46 to 57 months’ imprisonment followed by

24 to 36 months of supervised release.

      M r. Jarrillo submitted a Sentencing M emorandum asserting three reasons

why the district court should impose a sentence below the Guideline range. First,

he contended that his illegal reentry “is non-violent, . . . not drug-related . . .

[and] is, on some level, understandable” because he has a wife and two young

children living in the United States. R. Doc. 18 at 3. He also pointed out that his

children have been living with his mother-in-law and will continue to do so as

long as both of their parents remain incarcerated. Id. Second, M r. Jarrillo argued

that a sentence within the Guideline range would create “unwarranted sentencing

disparities among defendants with similar records who have been found guilty of

similar conduct.” See 18 U.S.C. § 3553(a)(6). He noted that he would have been

eligible for a further four-level reduction in his offense level if he had been




                                           -3-
convicted in a district where the fast-track program 1 was available, and this

reduced offense level would have led to a G uideline range of 30 to 37 months’

imprisonment. Third, M r. Jarrillo contended that his criminal history category, as

calculated by the PSR, overstated the seriousness of his offenses.

      At the sentencing hearing, the district court entertained argument from M r.

Jarrillo’s counsel about the disparity issue, and then it sought a response from the

government. See Aplt. Br. Att. B at 3:6-25. The court questioned the government

about the relevance of United States v. Booker, 543 U.S. 220 (2005), and the

indicia of dangerousness arising from M r. Jarrillo’s prior criminal conduct. Id. at

4:9-10, 22-24. After M r. Jarrillo’s counsel responded to the government’s

arguments, the court asked M r. Jarrillo if he wished to speak, and he declined. Id.

at 6:1-23.

      The court sentenced M r. Jarrillo to 46 months in prison followed by 24

      1
          As we recently explained:

      To expedite the handling of large volumes of cases involving persons
      accused of immigration offenses, certain judicial districts employ
      fast-track programs. These programs allow defendants to obtain a
      [reduction] in their offense level under the [Guidelines] in exchange
      for pleading guilty and waiving their rights to file certain motions
      and to appeal. Congress authorized these programs in a provision of
      the Prosecutorial Remedies and Other Tools to End the Exploitation
      of Children Today Act of 2003 (the PROTECT Act). The decision to
      adopt the program in a district is made by the United States Attorney
      General and the United States A ttorney for the district.

United States v. M artinez-Trujillo, 468 F.3d 1266, 1267 (10th Cir. 2006) (internal
citations omitted).

                                         -4-
months of supervised release. In so doing, it explained:

             I recognize that the Guidelines are just advisory, and I really
      think that I’m going to look very carefully at the circumstances of
      this man and his offense, as [18 U.S.C. §] 3553 requires me to do, I
      do believe that the Guideline low end [of] 46 months is reasonable.

            And the two things that are most compelling to me, first, the
      conviction in paragraph 23. I don’t know the amount of
      methamphetamine involved and marijuana. However, it’s a large
      amount. And when I see that there’s a ten year prison sentence,
      although 8.5 were suspended, probably because of the thought that he
      could be deported, et cetera, it seems to me that we have a man here
      who is not a small-time dealer.

            Then again after that he clearly was not repentant. He’s
      involved in other controlled substance offenses. And I believe that
      46 months is an appropriate sentence.

Id. at 6:24-7:13.



                                     Discussion

I.    Procedural Reasonableness

      In the w ake of Booker, we review sentences imposed by the district court

for reasonableness. United States v. Sanchez-Juarez, 446 F.3d 1109, 1114 (10th

Cir. 2006). “In conducting this review , we consider whether the district court

correctly applied the Guidelines and whether the ultimate sentence is reasonable

in light of the factors set forth in 18 U.S.C. § 3553(a).” Id. Although a sentence

within the Guideline range is presumptively reasonable in terms of its length, M r.

Jarrillo argues that his sentence was procedurally unreasonable because the



                                        -5-
district court failed to explain why it rejected his arguments that he should be

sentenced below the Guideline range. See id. at 1114-15; see also United States

v. Hall, 473 F.3d 1295, 1313-14 (10th Cir. 2007). M r. Jarrillo failed to object on

this basis, but we need not look past the first prong of plain error review because

the district court committed no error. See United States v. Lopez-Flores, 444

F.3d 1218, 1222 (10th Cir. 2006).

      It is well-established that we do not “demand that the district court recite

any magic words to show us that it fulfilled its responsibility to be mindful of the

factors [in § 3553(a)] that Congress has instructed it to consider.” United States

v. Contreras-M artinez, 409 F.3d 1236, 1242 (10th Cir. 2005). However, it is

equally clear that, “although the district court is not obligated to expressly weigh

on the record each of the factors set out in § 3553(a), it must state its reasons for

imposing a given sentence.” Sanchez-Juarez, 446 F.3d at 1116 (quotation marks

omitted); 18 U.S.C. § 3553(c). W e require a statement of reasons because “the

court’s failure to give reasons for its decision would leave us in a zone of

speculation on appellate review.” Sanchez-Juarez, 466 F.3d at 1116 (quotation

marks omitted); see also Hall, 473 F.3d at 1314.

      Undeniably, the district court in this case never said explicitly why it was

unconvinced by M r. Jarrillo’s arguments for leniency. Instead, the court stated

the two “most compelling” reasons w hy it chose a sentence of 46 months: first,

M r. Jarrillo’s prior drug trafficking crime involved “a large amount” of

                                          -6-
methamphetamine and marijuana; and, second, his continued criminal activity

following his conviction and deportation showed that he was not repentant. See

Aplt. Br. Att. B at 7:4-13.

      M r. Jarrillo argues that this statement of reasons affirmatively justifying a

Guideline sentence did not sufficiently address his request for a sentence below

the Guideline range. He contends that our holding in Sanchez-Juarez requires

explicit consideration of “a nonfrivolous argument that the § 3553(a) factors

warrant a below-Guidelines sentence.” 446 F.3d at 1117. Like M r. Jarrillo, the

defendant in Sanchez-Juarez was convicted of illegal reentry, and he also received

a sixteen-level enhancement for a prior felony. Although the defendant argued

that the sixteen-level enhancement was overly severe when considered in light of

the actual conduct that resulted in his prior conviction for alien smuggling, the

district court “stated no reasons for the sentence it imposed, other than first

noting that it had reviewed the PSR’s factual findings and considered the

Guidelines applications, and then citing [the defendant’s] offense conduct.” Id. at

1115. W e held that this discussion was insufficient and remanded for

resentencing. Id. at 1118.

      M r. Jarrillo reads Sanchez-Juarez as indicating that a district court must

address each and every argument for leniency that it rejects in arriving at a




                                         -7-
reasonable sentence. 2 Properly understood, however, the case merely stands for

the proposition that a sentencing judge confronted with a nonfrivolous argument

for leniency must somehow indicate that he or she did not “rest on the guidelines

alone, but considered whether the guideline sentence actually conforms, in the

circumstances, to the statutory factors.” Id. at 1117 (quoting United States v.

Cunningham, 429 F.3d 673, 676 (7th Cir. 2005)) (internal modifications omitted);

see also United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). Accordingly,

we have subsequently noted in an unpublished case that “[e]xplaining why, in

light of the factors, the court rejected a defendant’s arguments for a below-

guidelines sentence is one way” the district court can show it considered the §

3553(a) factors. United States v. Vaca-Perez, 178 F.App’x 841, 843 (10th Cir.

2006) (emphasis added).

      W e have never held, however, that the district court must list the reasons

why it could have chosen a different sentence and then explain why it rejected



      2
         He also relies upon the Sixth Circuit’s holding that “[w]here a defendant
raises a particular argument in seeking a lower sentence, the record must reflect
both that the district judge considered the defendant’s argument and that the judge
explained the basis for rejecting it.” United States v. Richardson, 437 F.3d 550,
553 (6th Cir. 2006). Following that precedent, the court remanded for
resentencing in U nited States v. Vonner because even if “the district court
considered all of V onner’s arguments [for leniency], there is nothing in the record
that explains why the district court rejected those arguments.” 452 F.3d 560, 569
(6th Cir. 2006). Notably, however, the Sixth Circuit granted the government’s
motion for rehearing en banc in Vonner on October 12, 2006. W e do not find
Richardson’s reasoning persuasive, and we reject M r. Jarrillo’s invitation to
follow it.

                                        -8-
them. 3 As noted, the purpose of requiring a statement of reasons is to facilitate

meaningful appellate review of the district court’s determination that the given

sentence is reasonable. Sanchez-Juarez, 446 F.3d at 1116; H all, 473 F.3d at 1314.

The fact that one sentence is reasonable does not, however, indicate that all other

possible sentences are unreasonable. Indeed, a range of possible sentences might

be upheld as reasonable on appeal. Thus, the district court is not required to

convince us that all other sentences are unreasonable or even that the sentence

chosen is the best of the reasonable sentences. To affirm, we must simply be

satisfied that the chosen sentence, standing alone, is reasonable. Booker, 543

U .S. at 261. Lest any doubt remain about the meaning of Sanchez-Juarez, we

hold that a district court’s duty to explain why it chose the given sentence does

not also require it to explain why it decided against a different sentence.

      Applying that principle to the facts of this case, we are confident that the

district court discharged its obligation to give reasons for choosing a 46 month

sentence. By looking “very carefully at the circumstances of this man and his

offense” and then explaining what it considered “the two things that are most



      3
          Indeed, we recently rejected a similar argument in United States v. Ruiz-
Terrazas, — F.3d— , 2007 W L 567034 (10th Cir. 2007). There, we held that a
district court satisfied its duty to give reasons for its sentence by entertaining the
defendant’s arguments and giving reasons for the sentence imposed, even though
the court did not specifically explain why it rejected the defendant’s arguments
for a below-Guidelines sentence. Id. at *5. Our decision today embraces an
identical understanding of a district court’s obligations under Sanchez-Juarez and
its progeny.

                                         -9-
compelling” from M r. Jarrillo’s past, Aplt. Br. Att. B at 6-7, the district court

made clear that it had considered “whether the guideline sentence actually

conforms, in the circumstances, to the statutory factors,” Sanchez-Juarez, 446

F.3d at 1117. The district court’s failure to go further and explain why it found

M r. Jarrillo’s three arguments for leniency unpersuasive w as therefore not error.

II.   The Substantive Argument

      M r. Jarrillo also argues that, even if the district court was not required to

address his request for a below-guidelines sentence, the implicit determination

that the fact-track program does not create unwarranted sentencing disparities was

erroneous. This argument is meritless. In United States v. M artinez-Trujillo, w e

made clear that § 3353(a)(6) cannot be read to permit a district court in a non-

fast-track jurisdiction to consider what the Guideline range would have been in a

fast-track jurisdiction. 468 F.3d 1266, 1268 (10th Cir. 2006). W e explained that

Congress made the decision to create the fast-track program and entrusted the

Executive Branch with the responsibility of deciding where it should be used. Id.

Because the statute obviously contemplated that fast-track sentences would not be

available in all districts, Congress itself created the fast-track disparity. A

disparity enacted by Congress simply cannot be “unwarranted” within the

meaning of § 3553(a)(6). Id.

      A FFIR ME D.




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