The Tenth Circuit Court of Appeals published its opinion in United States v. Ventura-Perez on Wednesday, January 18, 2012.

The Tenth Circuit affirmed the district court’s decision and sentence. Petitioner pleaded guilty to illegal reentry after deportation subsequent to an aggravated-felony conviction. On appeal, he raises two challenges. “First, he contends that the district court miscalculated his offense level under the Sentencing Guidelines. The court increased his offense level by 16 on the ground that his Texas conviction of burglary of a habitation was for ‘burglary of a dwelling’ and therefore a crime of violence.” Second, he contends that when the court imposed its sentence, it improperly refused to consider sentencing disparities created by fast-track programs in other districts.

The Court disagreed with Petitioner’s contentions. The Court held that “even if the Texas offense of burglary of a habitation encompasses more than burglary of a dwelling, the particulars of [Petitioner]’s prior conviction are relevant and his counsel admitted at sentencing in federal court that he had been convicted of burglary of an apartment, which is clearly burglary of a dwelling. . . . On the second contention we follow recent circuit precedent and hold that [Petitioner] cannot complain of sentencing disparities because he did not present to the sentencing court any evidence that he would have been eligible for fast-track treatment in another district.”

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lopez-Avila on Friday, December 2, 2011.

The Tenth Circuit affirmed the district court’s sentence. Petitioner is a native and citizen of Honduras. He was deported from the United States in 2006 and again in 2007, and again returned to the United States unlawfully in April 2009. He was arrested a few months later on a complaint of domestic violence, and is now charged with illegal re-entry. He entered a guilty plea and did not object to the presentence report (PSR), and the advisory guidelines sentence was for 37-46 months’ imprisonment. The district court denied Petitioner’s request for a downward variance and imposed a sentence at the bottom of the guidelines range at 37 months of imprisonment. Petitioner appealed, contending that his sentence “was procedurally unreasonable because the district court erroneously concluded that it could not consider the disparities created by the existence of fast-track programs when determining his sentence.”

“The primary issue raised by [Petitioner] has now been resolved in this circuit. In United States v. Lopez-Macias, [the Court] held that ‘where the circumstances warrant, a district court in a non-fast-track district has the discretion to vary from a defendant’s applicable guideline range based on fast-track sentence disparities . . . .’” The Court also held, however, that “a ‘generalized argument’ in which a defendant simply points to the disparity created by fast-track programs ‘is alone not sufficient to justify such a variance.’” In this case, Petitioner presented only such a generalized argument. Therefore, the Court rejected Petitioner’s claim of error in the district court’s decision.

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lopez-Macias on Monday, November 7, 2011.

The Tenth Circuit affirmed the district court’s decision and sentence. Petitioner, a citizen of Mexico, was arrested following a routine traffic stop on suspicion of marijuana trafficking. “Immigration and Customs Enforcement officials interviewed [Petitioner[ while he was in Colorado custody and determined his illegal status. A federal grand jury subsequently indicted Defendant in the District of Colorado for illegal reentry into the United States after deportation following an aggravated felony conviction." Petitioner appeals the sentence imposed by the district court.

The Tenth Circuit was presented with with two questions related to the presence of fast-track programs in some federal districts, but not others. "In the 1990s, federal prosecutors handling large numbers of illegal re-entry and other immigration offenses developed early disposition or 'fast-track' programs in states along the United States border with Mexico. In 2003, Congress endorsed such programs, apparently for border districts and elsewhere, in a broadly-worded provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act ('PROTECT Act'). . . . The Sentencing Commission then promulgated U.S.S.G. § 5K3.1: '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] and the United States Attorney for the district in which the court resides.’”

The first question the Court considers is “whether a sentencing court in a non-fast-track district has the discretion to consider sentence disparities caused by the existence of fast-track programs in other districts, and, based thereon, vary from the applicable guideline range for a defendant charged with an immigration offense.” If so, a second issue is “whether the apparently nebulous eligibility requirements for fast-track programs relieve a defendant charged with an immigration offense in a non-fast-track district of the burden of showing entitlement, at least in some sense, to sentencing consistent with a fast-track program.” The Court held that where the circumstances warrant, a district court in a non-fast-track district has the discretion to vary from a defendant’s applicable guideline range based on fast-track sentence disparities. But a defendant “bears the initial burden of showing entitlement, in some sense, to a variance based on fast-track sentence disparities.” Given the facts presented in this case, the Court declined to decide the precise extent of a defendant’s burden. However, the Court did provide that a “‘generalized argument’ in which a defendant simply points to the disparity created by fast-track programs ‘is alone not sufficient to justify such a variance.’”