                                              NOT PRECEDENTIAL



    IN THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                   ________________

                      NO. 09-3693
                   ________________

            UNITED STATES OF AMERICA

                            v.

             FRANCISCO ARCEO-GARCIA
          also known as FRANCISCO ARCEO,
          also known as JESUS RODRIGUEZ,
             also known as JESUS NOYOLA,
             also known as FRANK GARCIA

                 Francisco Arceo-Garcia
                        Appellant

                    _______________

      On Appeal from the United States District Court
         For the Eastern District of Pennsylvania
           (D.C. Crim. No. 2-09-cr-00239-001
          District Judge: Hon. J. Curtis Joyner

                   ________________

     Submitted Pursuant to Third Circuit LAR 34.1(a)
                   November 2, 2010

BEFORE: SCIRICA, STAPLETON and ROTH, Circuit Judges


            (Opinion Filed: November 5, 2010)
                   ________________
STAPLETON, Circuit Judge:

       Appellant Francisco Arceo-Garcia (“Arceo”) pled guilty to illegal reentry into the

United States. He was sentenced to a term of imprisonment of 48 months.

       In his sentencing memorandum and at his sentencing hearing, Arceo, an illegal

immigrant deported three times previously for unlawful entry into the U.S., argued for a

downward variance from his sentencing guidelines range of 46-57 months based on

several factors: his cooperation with the government, the “undue severity” of the sixteen

level enhancement under U.S.S.G. § 2L1.2(a) for a prior drug trafficking conviction, and

the sentencing disparities among fast-track and non-fast-track immigration districts.

Arceo‟s fast-track sentencing disparity argument was the subject of considerable debate

at the sentencing hearing, and the District Court directed a number of questions to

counsel concerning it. At the conclusion of the hearings, the District Court rejected the

downward variance request but did not address the sentence disparity argument or either

of the other factors, stating only “[i]n reference to the defendant‟s motion for this court to

grant a downward variance, that motion is denied.” App. 144-45. 1 In his consideration

of § 3553 factors, the District Court discussed only the nature and circumstances of the

offense, the defendant‟s “involvement with the criminal justice system,” and the need to

punish him and deter others. App. 145-47.

       Although the District Court may well have carefully considered the fast-track

argument and decided that the defendant did not merit any benefit from such a theory,

there is an insufficient record to support such a conclusion. Indeed, the record,

       1
           Arceo-Garcia has only appealed on the basis of the fast-track disparity argument.
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particularly when viewed in the context of our case law at the time, is entirely consistent

with the District Court‟s having reached the result that it did because it believed it was

without authority to consider Arceo‟s fast-track disparity argument.

       Section 3553(a)(6) of Title 28 of the United States Code provides that in

sentencing defendants district courts should consider “the need to avoid unwarranted

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

of similar conduct.” In United States v. Vargas, 477 F.3d 94, 96 (3d Cir. 2007), which

represented the law of our circuit at the time of Arceo‟s sentencing, the defendant argued

that “his sentence created an „unwarranted disparity‟ in light of the „fast- track‟ programs

available to defendants in some other districts.” The District Court refused to consider

such disparity in the course of reaching its sentence. We affirmed and agreed with its

reasoning for doing so:

              [W]e agree with the District Court when, in addressing
              Vargas‟ § 3553(a)(6) claim, it stated the following: “[W]hat
              are prohibited under 3553 are unwarranted sentencing
              disparities. And I think the other two branches of
              Government, the legislative and executive, have made it clear
              that in their view these are warranted sentencing disparities.
              App. at 130-31 (emphasis added). That is, we agree that any
              sentencing disparity authorized through an act of Congress
              cannot be considered “unwarranted” under § 3553(a)(6).

Vargas, 477 F.3d at 99-100. In reaching our conclusion, we cited cases from nine of our

sister circuits which reached a similar conclusion based on Congress‟s approval of fast-

track programs in the PROTECT Act.

       Shortly after Arceo‟s sentencing, this Court revisited the fast-track disparity issue

in United States v. Arrelucea-Zamudio, 581 F.3d 142 (3d Cir. 2009). In that case, we

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addressed the Supreme Court‟s intervening decision in Kimbrough v. United States, 552

U.S. 85 (2007), and Spears v. United States, ___ U.S. ___, 129 S. Ct. 840 (2009), and the

ensuing circuit split regarding the effect of these decisions on the propriety of a

sentencing court considering fast-track disparity. While we did not overrule Vargas, we

recognized the necessity of clarifying its holding:

                      We must clarify Vargas post-Kimbrough, however, to
              the extent that is has been read – as the District Court did here
              – as prohibiting a sentencing court‟s discretion to consider a
              fast-track disparity argument because such a disparity is
              warranted by Congress under§ 3553(a)(6). That
              interpretation is no longer the view of our Court in light of
              Kimbrough‟s analytic reasoning.

                      The fast-track issue should not be confined to
              subsection (a)(6), which concerns “avoid[ing] unwarranted
              sentencing disparities.” Instead, we hold that a sentencing
              judge has the discretion to consider a variance under the
              totality of the § 3553(a) factors (rather than one factor in
              isolation) on the basis of a defendant‟s fast-track argument,
              and that such a variance would be reasonable in an
              appropriate case.

Arrelucea-Zamudio, 581 F.3d at 149 (footnote omitted). Because the District Court in

Arrelucea-Zamudio had understandably read Vargas as precluding acceptance of the fast-

track disparity argument in all cases, we remanded to provide it with an opportunity to

reconsider that argument in the course of resentencing.

       Given the context of the sentencing in this case and the District Court‟s failure to

give any affirmative indication of an understanding that it was authorized in appropriate

circumstances to give weight to fast-track disparities, we are unable to exercise our

review responsibilities. Accordingly, as in Arrelucea-Zamudio, we will remand to the


                                              4
District Court to afford it an opportunity to clarify its position in light of our decision

there.

         While the court would be within its discretion to sentence Arceo to a within-

Guidelines sentence, and the court gave adequate reasons of punishment and deterrence

for sentencing Arceo as it did, the court committed procedural error in not ruling on the

defendant‟s disparity argument. When a matter is controverted, the District Court must

state on the record its reasons for denying a defendant‟s motion, Fed. R. Crim. P.

32(i)(3)(B); United States v. Wise, 515 F.3d 207, 216 (3d Cir. 2008).

         We will vacate the judgment of sentence and remand for further proceedings

consistent with this opinion.




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