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


3-13-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3571




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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                         No. 06-3571

                            UNITED STATES OF AMERICA

                                             v.

                                        KEVIN BRYAN,

                                                  Appellant

                              Appeal from the District Court
                of the Virgin Islands, Division of St. Thomas and St. John
                                       (05-cr-00094)
                          District Court: Hon. Curtis V. Gómez

                     Submitted pursuant to Third Circuit LAR 34.1(a)
                                   December 8, 2006

              Before: McKEE, BARRY and STAPLETON, Circuit Judges

                              (Opinion filed: March 13, 2007)

                                          OPINION

McKEE, Circuit Judge.

       Kevin Bryan appeals the sentence that was imposed after he pled guilty to illegally

reentering the United States after being deported. For the reasons that follow, we will

affirm the district court’s sentence.

                                             I.

       Kevin Bryan was charged in a one count indictment with unlawfully reentering

the United States after having been deported in violation of 8 U.S.C. §§ 1326(a) and
(b)(2). He pled guilty and was thereafter sentenced to thirty months imprisonment

followed by three years of supervised release, and ordered to pay a special assessment of

$100.

        Bryan concedes that the district court’s Guideline computations were correct and

that the court determined the correct offense level and criminal history category. Prior to

sentencing, Bryan submitted a motion in which he argued that he should receive: (1) a

four-level departure under U.S.S.G. § 5K3.1 to avoid improper sentencing disparity with

persons sentenced under fast-track programs; (2) a downward departure for cultural

assimilation; and (3) an additional point under U.S.S.G. § 3E1.1(b) for extraordinary

acceptance of responsibility.

        Bryan now challenges the district court’s failure to exercise its discretion under

the Guidelines as he requested.

                                             A.

        Bryan argues that he should have received a reduced sentence pursuant to 18

U.S.C. §3553(a)(6) to address the sentencing disparity that results when lower sentences

are imposed under the fast-track programs established in certain jurisdictions.1 This



        1
        “Fast-tracking” is a procedure that originated in states along the Mexican border,
where district courts experience high caseloads as a result of immigration violations.
United States v. Perez-Pena, 453 F.3d 236, 238 (4th Cir. 2006). In an effort to preserve
resources and increase prosecutions, prosecutors in those jurisdictions often try to obtain
pre-indictment pleas by offering defendants lower sentences through charge-bargaining
or through motions for downward departure. Id.

                                              2
Court recently joined the majority of our sister circuits in rejecting the argument by

non-fast-track defendants such as Bryan, “that any disparity created by fast-track

programs is unwarranted . . . .” United States v. Vargas, No. 06-1368, slip op. at 8 (3d

Cir. Feb. 16, 2007).2 Congress specifically authorized the disparity Bryan complains of

when it enacted the Prosecutorial Remedies and Other Tools to End the Exploitation of

Children Today Act, Pub. L. No. 108-21, § 401, 117 Stat. 650, 670 (2003) (codified at 18

U.S.C. § 3742(e)(3)(B)) (the “PROTECT Act”). We concluded in Vargas that any

sentencing disparity authorized through an act of Congress could not be considered

“unwarranted” under § 3553(a)(6). Vargas, slip op. at 11. Thus, the district court’s

refusal to adjust Bryan’s sentence to compensate for the absence of a fast-track program

did not make his sentence unreasonable. See id. at 10-11.

       Bryan also argues that our decision in United States v. Parker, 462 F.3d 273 (3d

Cir. 2006) supports his position. However our discussion in Parker did not address the


       2
         See, e.g., United States v. Mejia, 461 F.3d 158, 163 (2d Cir. 2006); United States
v. Perez-Pena, 453 F.3d 236, 243 (4th Cir. 2006); United States v. Aguirre-Villa, 460
F.3d 681, 683 (5th Cir. 2006); United States v. Hernandez-Fierros, 453 F.3d 309, 314
(6th Cir. 2006) United States v. Martinez-Martinez, 442 F.3d 539, 543 (7th Cir. 2006);
United States v. Sebastian, 436 F.3d 913, 916 (8th Cir. 2006) United States v. Marcial-
Santiago, 447 F.3d 715, 719 (9th Cir. 2006); United States v. Martinez-Trujillo, 468 F.3d
1266, 1268 (10th Cir. 2006); United States v. Castro, 455 F.3d 1249, 1252 (11th Cir.
2006); see also United States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (not
addressing disparity issue directly, but finding “[w]hether it would even be permissible to
give a lower sentence on the ground [of a fast-track disparity] is itself an open question”
because such a disparity is the result of a “congressional choice made for prudential
reasons”) (citation omitted).


                                             3
kind of disparity Bryan is complaining of. Rather, that case addressed sentencing

disparity between co-defendants in the same case. Moreover, in explaining the

sentencing court’s rejection of Parker’s argument, we stated: “[a]lthough § 3553(a) does

not require district courts to consider sentencing disparity among co-defendants, it also

does not prohibit them from doing so.” 462 F.3d at 277 (emphasis added).

                                             B.

       Some courts of appeals have concluded that cultural assimilation may constitute a

proper basis for granting a downward departure in prosecutions for violating 8 U.S.C. §

1326 when persons who have come to the United States as young children illegally

return following deportation because they have been so thoroughly acculturated into this

society and culture. See, e.g., United States v. Rivas-Gonzalez, 384 F.3d 1034, 1044 (9th

Cir. 2004). We agree that in the appropriate case and under appropriate circumstances,

“cultural assimilation” may provide a basis for a departure. However, a departure for

cultural assimilation, like a departure for family ties, may only be granted “in

extraordinary circumstances.” Id. at 1045; see also United States v. Bautista, 258 F.3d

602, 607 (7th Cir. 2001) (concluding that a downward departure on the grounds of

cultural assimilation “would be akin to one based on ‘family ties’-a discouraged factor

that is grounds for departure only in extraordinary circumstances.”).

       The district court understood that the Guidelines were only advisory and

appreciated that it could depart downward within the confines of § 3553(a). The court’s


                                             4
refusal to do so was a lawful exercise of its discretion which we lack jurisdiction to

review. See United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989) (“To the extent

this appeal attacks the district court’s exercise of discretion in refusing to reduce the

sentences below the sentencing guidelines, it will be dismissed for lack of appellate

jurisdiction.”); see also United States v. Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006).

                                              II.

       Bryan also contends that he was denied the equal protection of the law because the

government did not move to reduce his offense level by one additional level under

U.S.S.G. § 3E1.1(b) for extraordinary acceptance of responsibility. He argues that the

district court should therefore have exercised its discretion to grant the one point

reduction sua sponte.

       Bryan conceded at sentencing that an adjustment under U.S.S.G. § 3E1.1(b) “may

only be granted upon a formal motion by the Government at the time of sentencing.”

U.S.S.G. § 3E1.1(b), cmt. n.6. Without accepting the merit of Bryan’s contention that

the court can exercise its discretion in a manner that circumvents the requirement for the

government’s consent, we note that the record establishes that the district court did

inquire into the government’s reasons for concluding that Bryan’s cooperation did not

justify “cutting a break” for extraordinary acceptance of responsibility. The court

accepted the government’s explanation for not moving for an additional point and chose

not to make any additional downward adjustments pursuant to § 3553.


                                              5
                                           III.

      The record establishes that the district court properly considered the sentencing

factors set forth in § 3553(a) in deciding upon a reasonable sentence for Bryan. Bryan

has failed to show that the resulting sentence was unreasonable or based on an

unconstitutional motive. For the foregoing reasons, we will affirm the judgment of

sentence.




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