                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2007

USA v. Villar
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1762




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"USA v. Villar" (2007). 2007 Decisions. Paper 1275.
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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No: 06-1762

                           UNITED STATES OF AMERICA

                                             v.

                                   MELVIN VILLAR,

                                            Appellant

                          Appeal from the District Court of the
                          Virgin Islands, Division of St. Thomas
                                       and St. John
                                      (05-cr-00041)
                          District Judge: Hon. Curtis V. Gomez

                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                  December 4, 2006

             Before: McKEE, BARRY, and STAPLETON, Circuit Judges

                             (Opinion filed: April 17, 2007 )

                                        OPINION

McKEE, Circuit Judge.

       Melvin Villar appeals the sentence that was imposed for illegally reentering the

United States. For the reasons that follow, we will affirm.

                                            I.

       On May 23, 2005, a one count information was filed charging Villar with reentry

of removed aliens, in violation of 8 U.S.C. § 1326(a) and (b)(2). Villar thereafter pled

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guilty to that information. The sentencing range under the advisory guidelines was 57 to

71 months. However, Villar “sought adjustment of his sentence under the ‘fast track’ of

Section 5K3.1, U.S. Sentencing Guidelines and Title 18 Section 3553(a)(6).”

Appellant’s Br. at 13. The district court imposed sentence without expressly addressing

that requested adjustment. Instead, the court merely explained:

      [H]aving considered both the advisory guideline range of 57 to 71 months,
      which is based on an offense level of 21, and a criminal history category
      IV, and the sentencing factors enumerated at Title 18, U.S. Code, Section
      3553, and pursuant to the Sentencing Reform Act of 1984, it is the
      judgment of the Court that the defendant, Melvin Villar, is hereby
      committed to the custody of the U.S. Bureau of Prisons, to be imprisoned
      for a term of 57 months.

This appeal followed.

                                           II.

      “In 2003, Congress directed the Sentencing Commission to promulgate a policy

statement ‘authorizing a downward departure of not more than 4 levels if the Government

files a motion for such departure pursuant to an early disposition program authorized by

the Attorney General and the United States Attorney.’” United States v. Sebastian, 436

F.3d 913, 915-16 (8th Cir. 2006) (quoting Prosecutorial Remedies and Other Tools

Against the Exploration of Children Today (“PROTECT”) Act, Pub.L. No. 108-21, §

401(m)(2)(B), 117 Stat. 650, 675 (2003)). “The directive apparently was motivated by

the large volume of immigration cases presented for prosecution in certain judicial

districts, and the perceived need for an administrative mechanism to permit more

efficient processing of these cases.” Id. at 916 (citing 149 Cong. Rec. H2405, 2421

                                            2
(daily ed. Mar. 27, 2003) (commentary to an amendment offered by Rep. Feeney)). The

Commission responded to the directive by adopting U.S.S.G. § 5K3.1, which provides as

follows:

              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 General of
              the United States and the United States Attorney for the
              district in which the court resides.

“Since then, the Attorney General has authorized such programs in several districts along

the southwest and western borders of the United States, as well as in Nebraska and North

Dakota.” Sebastian, 436 F.3d at 916.

       There is no early disposition or “fast-track” program in the Virgin Islands, and

Villar relies upon the resulting sentencing patterns to argue that “fast-track” departures in

some districts but not others creates a sentencing disparity between similarly situated

defendants that the district court should have considered pursuant to 18 U.S.C. §

3553(a)(6). That statute allows sentencing courts to consider “the need to avoid

unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct.”

       The Court of Appeals for the Ninth Circuit has explained:

       When Congress passed the PROTECT Act, it did so with knowledge that
       18 U.S.C. § 3553(a)(6) was directing sentencing courts to consider the need
       to avoid unwarranted sentencing disparities. By authorizing fast-track
       programs without revising the terms of § 3553(a)(6), Congress was
       necessarily providing that the sentencing disparities that result from these
       programs are warranted, and, as such, to not violate § 3553(a)(6).


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United States v. Marcial-Santiago, 447 F.3d 715, 718 (9th Cir. 2006) (citation omitted);

see also United States v. Castro, 455 F.3d 1249, 1252 (11th Cir. 2006) (“Any disparity

created by section 5K3.1 does not fall within the scope of section 3553(a)(6). When

Congress directed the Sentencing Commission to allow the departure for only

participating districts, Congress implicitly determined that the disparity was warranted.”)

(citations omitted).

       Although we have not yet addressed this claim in a precedential opinion, it is clear

that the disparity Villar complains of has been sanctioned by Congress and a sentencing

court is therefore not required to mitigate it when fashioning an appropriate sentence

under 18 U.S.C. § 3553(a). We therefore reject Villar’s argument, and we will affirm the

sentence that was imposed.




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