                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  January 6, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 09-2208
          v.                                             (D. of N.M.)
 LONGINO CHAVEZ-TORRES,                           (D.C. No. CR-09-966-JEC)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **



      Defendant-Appellant Longino Chavez-Torres (Chavez) appeals the 30-

month sentence imposed after he pleaded guilty to conspiracy to possess with the

intent to distribute marijuana in violation of 21 U.S.C. § 846. Chavez argues that

the district court abused its discretion in denying his motion for a downward




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
adjustment to bring his sentence into conformity with the sentences given to his

co-defendants.

      Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

                                 I. Background

      Chavez and eight co-defendants were arrested in Arizona for attempting to

smuggle marijuana into the United States from Mexico. Chavez, a Mexican

citizen, had previously been removed from the United States multiple times, and

twice in a short period was convicted of illegal entry of an alien, a misdemeanor.

None of Chavez’s co-defendants had a previous conviction.

      Chavez pleaded guilty to the conspiracy charge, which had a base offense

level of 26 due to the amount of marijuana involved, roughly 150 kilograms. The

presentence report recommended a four-level reduction for Chavez’s minimal role

in the offense, pursuant to USSG § 3B1.2(a), and a three-level reduction for

acceptance of responsibility, pursuant to USSG § 3E1.1, resulting in a total

offense level of 19. Chavez’s previous convictions resulted in a criminal history

category of II. The combination of offense level and criminal history resulted in

a guidelines sentence range of 33 to 41 months.

      During sentencing, Chavez requested a downward departure from criminal

history category II to category I, and a further downward variance based on the

disparity between Chavez’s proposed sentence and those of his co-defendants,

who took advantage of the district’s “fast-track” program. The district court

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granted the criminal history downward departure, agreeing with Chavez that the

criminal history category over-represented the seriousness of his criminal history.

The district court declined to grant a further variance, and sentenced Chavez to 30

months’ imprisonment, the low end of the new guidelines range. Chavez timely

appealed.

                                   II. Discussion

      On appeal, we review sentences for reasonableness, using a deferential

abuse of discretion standard. United States v. Haley, 529 F.3d 1308, 1311 (10th

Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 46 (2007)). When, as here,

a sentence is within the guidelines range, the reviewing court may employ a

rebuttable presumption of reasonableness. United States v. Kristl, 437 F.3d 1050,

1054 (10th Cir. 2006). This presumption can be rebutted by showing that the

sentence is unreasonable in light of the factors found in 18 U.S.C. § 3553(a).

Kristl, 437 F.3d at 1054.

      Chavez argues his sentence was substantively unreasonable because the

district court failed to enter a sentence “sufficient, but not greater than necessary,

to comply with the purposes set forth” by Congress in § 3553(a). Chavez relies

only on § 3553(a)(6), which emphasizes “the need to avoid unwarranted sentence

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

similar conduct.” Aplt. Br. at 5–7. He cites several cases in which courts granted




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a downward variance based on a disparity in sentences among co-defendants

found guilty of similar conduct.

      Although it may be appropriate for courts in their discretion to grant a

downward variance based on sentence disparity among co-defendants, it is not

required. Chavez fails to demonstrate why it was an abuse of discretion for the

district court to decline to do so in his case. Section 3553(a)(6) concerns

disparate sentences given to defendants “with similar records.” Chavez’s criminal

record, while perhaps minimal, is not “similar” in this sense to that of his co-

defendants, who had no previous criminal history. Chavez, in contrast, had

illegally entered the United States at least five times before his drug smuggling

conviction. We have previously held that disparate sentences are permissible

when they are warranted by the facts of the particular case. United States v.

Alapizco-Valenzuela, 546 F.3d 1208, 1223 (10th Cir. 2008). Here, the disparity is

easily explained by the differences in criminal history, and therefore the disparity

alone does not render Chavez’s sentence unreasonable.

      The disparity in sentence is further explained by the fact that Chavez’s co-

defendants were “eligible for the ‘fast-track’ early disposition program in the

District of New Mexico.” Aple. Br. at 7 n.5. Due to his criminal history, Chavez

was not eligible for this program. Our court has addressed the issue of the

sentence disparity resulting from the application of this program to some

defendants but not others. We have concluded that the disparities resulting from

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the application of the fast-track program are not “unwarranted,” since Congress

had provided for these programs without amending the sentencing factors found

in § 3553(a). United States v. Martinez-Trujillo, 468 F.3d 1266, 1268–69 (10th

Cir. 2006).

      In sum, the district court imposed a substantively reasonable sentence in

this case.

                                  III. Conclusion

      For the foregoing reasons, we find that the district court did not abuse its

discretion in declining to grant a variance based on the disparity of sentences

among co-defendants. We therefore AFFIRM.


                                                    Entered for the Court

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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