                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a1013n.06
                           Filed: December 23, 2005

                                           No. 05-5414

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )
                                                 )    ON APPEAL FROM THE UNITED
JUAN MIGUEL HERNANDEZ-                           )    STATES DISTRICT COURT FOR
CERVANTES,                                       )    THE WESTERN DISTRICT OF
                                                 )    TENNESSEE
       Defendant-Appellant.                      )



Before: GUY and GIBBONS, Circuit Judges; and EDMUNDS, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Appellant Juan Miguel Hernandez-Cervantes

pled guilty to the crime of reentry of a previously deported alien into the United States. Given the

defendant’s extensive criminal history, the court followed the United States Sentencing Guidelines

(“Guidelines”) on an advisory basis and sentenced Hernandez-Cervantes to 84 months in prison.

Hernandez-Cervantes argued that his sentence should be reduced in accordance with the practice

of jurisdictions that have adopted fast-track sentencing procedures. The district court declined to

reduce the sentence and Hernandez-Cervantes now appeals, arguing that the court’s refusal to fast-

track the sentence violates 18 U.S.C. § 3553(a)(6) by creating a disparity in sentence lengths based


       * The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District
of Michigan, sitting by designation.

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on geography. In addition, the defendant alleges that the court violated the separation of powers by

refusing to fast-track a sentence except on the Attorney General’s recommendation. For the

following reasons, we AFFIRM the defendant’s sentence.

                                                   I.

       Camden, Tennessee police apprehended three men on July 4, 2004 for cashing stolen forged

checks. The Camden police contacted the U.S. Citizenship and Immigration Service because one

of the men, who identified himself as Pedro Manuel Ibanes-Marin, was not legally present in the

United States. Ibanes-Marin was taken into federal custody; in the process, his fingerprints were

submitted for identification. This testing revealed that Ibanes-Marin’s true name was Juan Miguel

Hernandez-Cervantes. Hernandez-Cervantes has a lengthy history of illegal entry, detention, and

reentry into the United States and has also been convicted of possession/purchase of cocaine base

for sale, transport/sale of a narcotic controlled substance (twice), forgery, passing stolen checks, and

theft of property.

       The grand jury indicted Hernandez-Cervantes on one count of reentering the United States

after deportation in violation of 8 U.S.C. § 1326(a). He pled guilty to this offense in the United

States District Court for the Western District of Tennessee. In advance of sentencing, a pre-

sentencing report (“PSR”) was prepared; the defense objected to neither its factual conclusions nor

its calculation of the appropriate Guidelines range. Hernandez-Cervantes noted, however, that other

jurisdictions have adopted “fast-track” policies that allow shorter sentences where illegal immigrant

defendants do not file pre-trial motions or contest sentencing issues. He requested, in the interest

of uniform sentencing and because he met the criteria for fast-track sentencing, that the district court

sentence him to a shorter term of imprisonment than that recommended by the Guidelines.


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       Fast-tracking arose initially in border areas with large illegal immigration caseloads.

Prosecutors sought to clear their dockets through either charge-bargaining or agreements to move

for downward departures in return for defendants’ agreements not to file pretrial motions or contest

issues. See United States v. Morales-Chaires, ---F.3d---, 2005 WL 3307395, at **2-3 (10th Cir.

2005) (noting history of fast-track sentencing); Erin T. Middleton, Fast-Track to Disparity: How

Federal Sentencing Policies Along the Southwest Border are Undermining the Sentencing

Guidelines and Violating Equal Protection, 2004 Utah L. Rev. 827, 831 (2004) (explaining pre-

Booker history of fast-tracking). Congress approved and set standards for this process in the

Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003

(“PROTECT Act”), Pub. L. 108-21, 117 Stat. 650, which required the United States 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.” PROTECT Act,

§ 401(m)(2)(b), 117 Stat. 675 (“PROTECT Act provision”). The Sentencing Commission responded

by promulgating a new Guideline authorizing a four-level reduction. U.S.S.G. § 5K3.1.

       The district court declined to reduce the defendant’s sentence on the fast-track rationale. In

so deciding, the judge noted that the Western District of Tennessee has not adopted a fast-track

program because the programs are “designed to work in those jurisdictions that have not just

hundreds of illegal alien cases but thousands.” In addition, the court noted that “fast-track programs

are available only when adopted by and instituted by procedure through the U.S. Attorney’s office

and the courts.” Hernandez-Cervantes presented no other arguments, so the court declined to

deviate from the Guidelines. In explaining its reasoning, the court noted: “You came here to commit


                                                  3
crimes. You have six convictions in seven years . . . . [Y]our criminal history has been taken into

account in calculating your criminal history score, so a sentence near the maximum is not

appropriate. On the other hand, because of the nature of your crimes, drug sales, theft, forgery, it

seems to me that the minimum is not appropriate either.” As a result, the judge sentenced

Hernandez-Cervantes to 84 months of detention.

       Hernandez-Cervantes now appeals his sentence, claiming that the district court’s decision

to sentence him to a longer sentence than he would have received in a fast-track jurisdiction caused

his sentence to be unreasonable under 18 U.S.C. § 3553(a)(6) (requiring sentencing courts to

consider “the need to avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct”) and that the district court’s deference to the

executive branch in determining whether to apply the fast-track sentence is unconstitutional.

                                                 II.

       The defendant argues that the district court failed to consider disparities in sentencing under

§ 3553(a) such that his sentence is unreasonable. This appeal is based on a sentencing decision that

occurred after the Supreme Court overturned the mandatory application of the Guidelines. United

States v. Booker, 125 S.Ct. 738 (2005); United States v. Barnett, 398 F.3d 516, 524 (6th Cir. 2005).

Where the Guidelines are not the mandatory basis for sentencing, the sentence is reviewed for

unreasonableness. United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). The courts may find

a sentence unreasonable “when the district judge fails to ‘consider’ the applicable Guidelines range

or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a) and instead simply selects

what the judge deems an appropriate sentence without such required consideration.” Id. Courts,

however, are not required to “engage in a ritualistic incantation of the § 3553(a) factors.” United


                                                 4
States v. Chandler, 419 F.3d 484, 488 (6th Cir. 2005) (quoting United States v. Washington, 147

F.3d 490, 491-92 (6th Cir. 1998)).

        Hernandez-Cervantes claims that his sentence is unreasonable because the district court’s

rejection of his request for a fast-track-like sentence reduction creates disparities in sentencing based

on jurisdiction in violation of 18 U.S.C. § 3553(a)(6). Disparities in sentencing are only one

consideration in sentencing under § 3553(a), however. Here, the court began with the statement that

the Guidelines would be a “starting point” for the sentencing determination, and the defendant failed

to make any arguments (other than fast-tracking) as to why application of the § 3553(a) factors

demanded deviation from those Guidelines in this case. In fact, the court explained its sentencing

decision by reference to other factors. The court noted the nature of the defendant’s crimes, thereby

considering, at a minimum, the “seriousness of the offense” under § 3553(a)(2)(A). The court also

discussed the defendant’s recidivist criminal history, noting that the defendant “came here to commit

crimes.” This statement strongly implies that the court considered the need “to afford adequate

deterrence to criminal conduct” and “to protect the public from further crimes of the defendant.” 18

U.S.C. § 3553(a)(2).

        The district court then turned to the defendant’s fast-tracking argument. The court noted that

Hernandez-Cervantes might indeed have received a different sentence in a fast-track jurisdiction that

applied the Guidelines. The court explained that the fast-track deviation was provided to districts

where the alien reentry case docket was overloaded – a situation that does not exist in the Western

District of Tennessee. In addition, the district court indicated that its discretion was limited without

executive branch approval. Hernandez-Cervantes challenges this claimed lack of authority to

deviate from the Guidelines, arguing that the district court might have deviated from the Guidelines


                                                   5
had it felt empowered to do so.1

       It is clear that fast-tracking does create sentence disparities based on geography. If those

disparities are unwarranted, then § 3553(a)(6) empowers courts to consider the effects of fast-

tracking when imposing sentences. The court could thus arguably commit error by declining to

consider deviation on this basis. On the other hand, Congress authorized, in the PROTECT Act, the

precise disparities at issue in this case, so a court would have to override that legislative judgment

in order to reduce a defendant’s sentence on the fast-track basis. See United States v. Martinez-

Flores, 428 F.3d 22, 30 n.3 (1st Cir. 2005) (noting in dicta that “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.”); Morales-Chaires, 2005 WL 3307395, at *5 (collecting cases

both departing and declining to depart from the Guidelines).

       The PROTECT Act legislative judgment is dispositive of the fast-tracking sentence disparity

issue. The legislature instructed the courts, in § 3553(a)(6), to avoid “unwarranted sentence

disparities” but explicitly authorized disparities based on fast-tracking in the PROTECT Act. There

is no conflict between these statutes: Congress determined, based on sound principles of judicial

economy, that geographic sentencing disparities due to fast-tracking are not “unwarranted.” These

disparities therefore do not violate § 3553(a)(6) and the district court did not err by refusing

Hernandez-Cervantes’ fast-tracking argument.


       1
        Courts generally agreed that the fast-track provision was an acceptable basis for
sentence disparity under the mandatory Guidelines scheme that existed pre-Booker. See
Morales-Chaires, 2005 WL 3307395, at *3 (noting agreement in the Second, Ninth (en banc),
and Tenth circuits). The Sixth Circuit has not addressed this issue, and because the Guidelines
were advisory in this case we do not need to decide it here.

                                                   6
       Even if the district court’s decision not to consider fast-tracking in imposing sentence in this

case had violated § 3553(a)(6), such error would have been harmless. “Under the harmless error

test, a remand for an error at sentencing is required unless we are certain that any such error was

harmless–i.e. any such error ‘did not affect the district court's selection of the sentence imposed.’”

United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (quoting Williams v. United States,

503 U.S. 193, 203 (1992)). The purported error in this case was harmless for several reasons. First,

the court provided an independent policy basis for its decision not to fast-track the defendant. In

addition, it adequately considered other sentencing factors – notably, criminal history and recidivism

– in determining the length of the sentence to be applied. See Morales-Chaires, 2005 WL 3307395,

at *6 (declining to address fast-track argument where the district court based its sentence on other

sentencing factors). Though a more explicit consideration of the § 3553(a) factors would have aided

us in deciding this case, the implied consideration undertaken here is sufficient to support the

reasonableness of the ultimate sentencing decision based on this court’s decisions in Webb and

Chandler.    The court was therefore clear enough to indicate that it would impose an identical

sentence were the case remanded, and Hernandez-Cervantes’ appeal must fail.

                                                 III.

       Hernandez-Cervantes also argues that the district court’s refusal to fast-track without

executive branch approval, if upheld by this court, creates an unconstitutional restraint on the

separation of powers. This deference to prosecutorial decision-making, he claims, violates the

principle of separation of powers that undergird the American constitutional system. Because we

have upheld the sentence imposed, we must consider the defendant’s constitutional argument.

        Hernandez-Cervantes relies on Mistretta v. United States, in which the Supreme Court


                                                  7
upheld the Guidelines against a separation of powers challenge but noted in a footnote that “[H]ad

Congress decided to confer responsibility for promulgating Guidelines on the Executive Branch, we

might face the constitutional questions whether Congress unconstitutionally had assigned judicial

responsibilities to the executive or unconstitutionally had united the power to sentence within one

Branch.” 488 U.S. 361, 391 n.17 (1989). In this case, the defendant challenges the constitutionality

of § 401(m)(2)(B) of the PROTECT Act, which directed the Sentencing Commission to promulgate

what is now U.S.S.G. § 5K3.1, allowing downward departure for fast-tracking upon motion by the

government.     Hernandez-Cervantes claims that this statute, and the Guideline it created,

impermissibly limits the power of the judiciary to determine the length of sentences.

        Hernandez-Cervantes failed to raise this argument before the district court, so it must be

reviewed for plain error on appeal. United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005). To

show plain error, the appellant must show that (1) there was error; (2) that was plain; and (3) that

affected the substantial rights of the defendant. Id. If so, the court may reverse the district court

decision if that decision “seriously affects the fundamental fairness, integrity, or public reputation

of judicial proceedings.” Id.

        The district court did not commit plain error by deferring to the executive branch in this case.

First, it is doubtful that the court’s deference here constituted error. In Mistretta, the Supreme Court

held that the Guidelines are not an unconstitutional limitation on the separation of powers. 488 U.S.

at 390 (“[T]he sentencing function long has been a peculiarly shared responsibility among the

Branches of Government and has never been thought of as the exclusive constitutional province of

any one Branch.”). Contrary to the defendant’s argument here, the PROTECT Act amendments did

not change the balance of those powers. Prosecutors have always been able to affect the length of


                                                   8
sentences through plea agreements, motions for downward departures, and other means. Before the

PROTECT Act was passed, prosecutors adopted fast track procedures through existing means, see

Morales-Chaires, 2005 WL 3307395, at *2; the PROTECT Act merely made explicit and regulated

such arrangements. Deference by courts to the fast-tracking decisions of the executive may

therefore be aptly viewed as a form of prosecutorial discretion within the preexisting, constitutional

Guidelines structure. As a result, the defendant’s argument likely remains constrained by Mistretta.



         We decline to decide this question, however, because even assuming arguendo that the

district court’s deference to the executive branch under the PROTECT Act did constitute error, that

error did not affect the defendant’s substantial rights. The defendant’s constitutional argument

requests the same relief as his statutory claim, but we have already concluded, in Part II, that the

court has provided sufficient indication that Hernandez-Cervantes would receive an identical

sentence were the case remanded. As a result, we held that any error from fast-tracking was

harmless. “An error may be harmless only where the government is able to prove that none of the

defendant's substantial rights has been affected by the error.” Barnett, 398 F.3d at 530. Plain error

requires infringement of the defendant’s substantial rights, so harmless error cannot be plain.

Because the defendant’s substantial rights were unaffected here, the court did not commit plain

error.

                                                 IV.

         For the foregoing reasons, the district court decision is AFFIRMED. The district court

considered the § 3553(a) sentencing factors, and its determination of a sentence was reasonable

notwithstanding the geographical sentence discrepancies created by fast-track jurisdictions. The


                                                  9
court did not commit plain error by deferring to the executive branch while applying the Guidelines

as an advisory guide to sentencing.




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