United States of America v. Pedro Manuel Arrelucea-Zamudio, a/k/a PEDRO ARRELUCEA PEDRO MANUEL ARRELUCEA-ZAMUDIO

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4397
UNITED STATES OF AMERICA
v.
PEDRO MANUEL ARRELUCEA-ZAMUDIO,
a/k/a PEDRO ARRELUCEA
PEDRO MANUEL ARRELUCEA-ZAMUDIO,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 1-08-cr-00136-001)
District Judge: Honorable Renee M. Bumb
Argued on July 9, 2009
Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges
(Opinion filed: September 14, 2009)

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Maggie F. Moy, Esquire (Argued)
Office of Federal Public Defender
800-840 Cooper Street, Suite 350
Camden, NJ 08102-0000
Counsel for Appellant
Ralph J. Marra, Jr.
Acting United States Attorney
George S. Leone
Chief, Appeals Division
Jennifer H. Chin (Argued)
Assistant U.S. Attorney
Caroline A. Sadlowski, Esquire
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102-0000
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge
In certain federal judicial districts, “fast-track” programs
allow qualifying immigrant defendants to plead guilty while
waiving, among other things, their appellate and post-conviction

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The District Court had jurisdiction under 18 U.S.C. § 3231.1
We have appellate jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
3
rights. In turn, the Government agrees to request a departure
from the relevant Sentencing Guidelines range. None of the
districts in the Third Circuit is a fast-track district.
Pedro Manuel Arrelucea-Zamudio (“Arrelucea”) pled
guilty to illegal reentry into the United States, in violation of 8
U.S.C. § 1326(a) and (b)(2). The District Court sentenced him
to 48 months’ imprisonment. Arrelucea appeals his sentence,
challenging, among other things, the Court’s rejection of his
argument for a downward variance based on the disparity in
sentencing among immigration defendants in fast-track districts
and non-fast-track districts.1
The Sentencing Guidelines are advisory, and the Supreme
Court’s decision in Kimbrough v. United States, 552 U.S. 85,
128 S.Ct. 558 (2007), has rekindled discussion regarding fast-
track districts and sentencing. The question before us is
whether, post-Kimbrough, it is an abuse of a sentencing judge’s
discretion to consider varying from the Sentencing Guidelines
in a non-fast-track jurisdiction based on the disparity created by
lower immigration sentences in fast-track jurisdictions. Prior to
Kimbrough we addressed this issue in United States v. Vargas,
477 F.3d 94 (3d Cir. 2007). We take this opportunity to clarify
Vargas and expand on the issue in light of the Supreme Court’s

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recent guidance. We conclude that, under the logic of
Kimbrough, it is within a sentencing judge’s discretion to
consider a variance from the Guidelines on the basis of a fast-
track disparity.
I. Background
Arrelucea was born in Peru, but moved to Mexico with
his wife and daughter in the late 1960s. He illegally entered the
United States in 1979, eventually living and working in New
Jersey, where he applied for U.S. residency. In 1991 he was
convicted under New Jersey law of possession with intent to
distribute a controlled substance, and was sentenced to 12 years’
imprisonment. Approximately four years later, however, he was
deported to Peru.
Arrelucea illegally reentered the United States in
December 2000. He returned to New Jersey and secured
employment using his previously issued Social Security number.
According to Arrelucea, he supported his ex-wife and two
children living in the United States, and sent money to his
mother and sisters living in Peru. In June 2006, at 60 years old,
Arrelucea was arrested again in New Jersey for possession with
intent to distribute cocaine. This time, he was sentenced to five
years in state prison. In September 2007, after serving
approximately 15 months of his sentence, he was transferred to
the custody of federal Immigration and Customs Enforcement.

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Through the advice of counsel, Arrelucea did not admit to2
his prior convictions to preserve a constitutional challenge to the
felony and aggravated felony sentence enhancement provision
of the illegal reentry statute, 8 U.S.C. § 1326(b)(2).
5
A federal grand jury indicted Arrelucea on one count of
illegal reentry, to which he pled guilty in May 2008. At his plea
colloquy, Arrelucea admitted that he had been deported
previously and had illegally reentered the United States.
However, he did not make any admissions regarding his prior
criminal history. The Government offered evidence of2
Arrelucea’s 1991 and 2006 New Jersey state felony convictions
for possession with intent to distribute.
At Arrelucea’s sentencing, he raised a facial
constitutional challenge to the aggravated felony sentencing
enhancement of the illegal reentry statute—that his prior
convictions needed to be proven beyond a reasonable doubt
before the District Court could enhance the normal sentencing-
range calculation. The Court rejected this argument and
allowed certified copies of Arrelucea’s prior convictions to
establish his eligibility for an enhancement.
Arrelucea also argued for a downward variance under 18
U.S.C. § 3553(a)(6) based on the disparity in sentence between
fast-track and non-fast-track immigration districts. In his
sentencing memorandum, he calculated his Guidelines range in
a fast-track district at 30 to 37 months’ imprisonment, rather

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than the higher 46 to 57 months’ imprisonment under his non-
fast-track calculation, and advocated for a sentence of not more
than 36 months. The District Court rejected this argument,
concluding that our decision in Vargas precluded consideration
of a variance on this basis as a matter of law, and that the
Supreme Court’s decision in Kimbrough did not alter this
analysis.
Finally, Arrelucea argued more generally that, based on
his circumstances, the § 3553(a) factors supported varying down
to impose a sentence below the Guidelines range. For example,
he stated that he only illegally reentered the country once to
provide economic stability for his family and care for his
daughters living in the United States, he worked and paid taxes
while living in the United States, he suffers from ailments
related to his age, he expressed remorse for his actions, and,
after removal, he will no longer have the need to return to the
United States because his children are grown and he has family
in Peru. The Government opposed any downward variance.
The Court declined to vary from the Guidelines range,
noting that Arrelucea was deported initially after committing a
serious drug offense and that when he returned he committed
another serious drug offense. Accordingly, it imposed a
sentence of 48 months’ imprisonment.
II. Standard of Review

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We review a sentence for reasonableness under the
deferential abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 128 S.Ct. 586, 594 (2007). Our review of
procedural errors in sentencing includes a district court’s
improper calculation of the Guidelines, “treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence.” United States v. Wise,
515 F.3d 207, 217 (3d Cir. 2008). In reviewing for
reasonableness, alleged factual errors are subject to a “clearly
erroneous” standard, but “purely legal” errors, such as a
misinterpretation of the Guidelines or the governing caselaw, are
reviewed de novo. Id.
III. Discussion
A. Fast-Track Programs
We begin with some historical background on fast-track
programs, which are also known as early disposition programs.
They sprang up in federal judicial districts along the Mexican
border, starting in Southern California, in the mid-1990s. Local
U.S. Attorneys instituted these programs as an administrative
mechanism to address the increase in their immigration
caseload, such as the rise in prosecution of illegal reentry
offenses, and to create a process for faster and more efficient
disposition of these cases. U.S. Sentencing Comm’n, Report to
Congress, Downward Departures from the Federal Sentencing

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Prosecutorial Remedies and Other Tools to End the3
Exploitation of Children Today Act (PROTECT), Pub. L. No.
108-21, 117 Stat. 650, 675 (2003).
8
Guidelines, at 65 (Oct. 2003) (hereinafter “Sentencing
Commission Report”).
In 2003, Congress took note of this growing pattern.
Through the PROTECT Act, it sanctioned these programs3
under certain circumstances. PROTECT Act, § 401(m)(2)(B),
117 Stat. at 675; see also Sentencing Commission Report, at 56,
62. The Act, passed pre-Booker, was part of a more general
effort by Congress to deal with a perceived increase in the rate
of departures from the Sentencing Guidelines. PROTECT Act,
§ 401(m)(2)(A), 117 Stat. at 675; see also Sentencing
Commission Report, at 56 (explaining that Congress amended
18 U.S.C. § 3553(c) (statement of reasons for imposing a
sentence) and § 3742 (review of a sentence) to facilitate
meaningful appellate review of sentences, particularly departure
decisions).
Specifically concerning fast-track districts, the Act
directed the Sentencing Commission to promulgate “a policy
statement authorizing downward departures of no 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. at 675. Shortly thereafter, in

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October 2003, the Sentencing Commission created Guideline
§ 5K3.1, which provides that, “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.” This language tracks that of the PROTECT
Act essentially verbatim.
In response to the PROTECT Act, the Attorney General
issued a memorandum to all federal prosecutors discussing
Department of Justice policies relating to authorization and
administration of fast-track programs. Memorandum from John
Ashcroft, Att’y Gen., Dep’t of Justice, to U.S. Attorneys (Sept.
22, 2003), reprinted in 16 Fed. Sent. R. 134 (Dec. 2003)
(“Attorney General Memorandum”). As part of a fast-track
plea agreement, a qualifying defendant, at a minimum, must
agree to the factual basis that accurately reflects his offense
conduct, agree not to file any Federal Rule of Criminal
Procedure 12(b)(3) motions (e.g., alleging a defect in the
indictment or to suppress evidence), and waive the right to
appeal and right to file for a writ of habeas corpus under 28
U.S.C. § 2255 (except for ineffective assistance of counsel). In
return, the Government may commit to recommend a Guidelines
departure of not more than 4 levels, or may implement a “charge
bargaining” fast-track program where the parties’ agreement
adjusts the initial Guidelines calculation downward by reducing
the charge. See Attorney General Memorandum. As of
February 2008, the Attorney General had authorized fast-track

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programs in 20 districts, though only 16 of those have illegal
reentry programs (thus, fast-track programs exist in
approximately 17% of the 94 federal judicial districts). See
Memorandum of Dep’t of Justice, Reauthorization of Early
Disposition Programs (Feb. 1, 2008).
B. Sentencing Discretion
Arrelucea’s fast-track argument concerns the extent of
the District Court’s discretion at sentencing. The Sentencing
Guidelines are now advisory only. United States v. Booker, 543
U.S. 220, 246 (2005). In United States v. Gunter, 462 F.3d 237
(3d Cir. 2006) (and confirmed by the Supreme Court in
Kimbrough, 128 S. Ct. at 574–75, and Gall, 128 S. Ct. at 596–97
& n.6), we provided sentencing judges with a three-step process
for determining the appropriate sentence to impose on a
defendant:
(1) Courts must continue to calculate a
defendant’s Guidelines sentence precisely as they
would have before Booker.
(2) In doing so, they must formally rule on the
motions of both parties and state on the record
whether they are granting a departure and how
that departure affects the Guidelines calculation,
and take into account our Circuit’s pre-Booker
case law, which continues to have advisory force.

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“As an aside, our Court has previously stated that we4
distinguish between traditional departures based on a specific
Guidelines provision [step 2] and sentencing ‘variances’ from
the Guidelines that are based on Booker and the § 3553(a)
factors [step 3]. United States v. Vampire Nation, 451 F.3d 189,
195 n.2 (3d Cir. 2006).” Gunter, 462 F.3d at 247.
11
(3) Finally, they are required to exercise their
discretion by considering the relevant [18 U.S.C.]
§ 3553(a) factors in setting the sentence they
impose regardless whether it varies from the
sentence calculated under the Guidelines.[ ]4
Gunter, 462 F.3d at 247 (alterations in original omitted)
(internal quotations and citations omitted) (holding a sentencing
judge can consider the crack/powder cocaine differential under
step 3 because those Guidelines are advisory post-Booker). The
statutory § 3553(a) sentencing factors that must be given
“meaningful consideration” in step 3 include:
(1) the nature and circumstances of the offense
and the history and characteristics of the
defendant;
(2) the need for the sentence imposed – (A) to
reflect the seriousness of the offense, to promote
respect for the law, and to provide just
punishment for the offense; (B) to afford adequate

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deterrence to criminal conduct; (C) to protect the
public from further crimes of the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care,
or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for – (A) the applicable category of
offense committed by the applicable category of
defendant as set forth in the guidelines – (i) issued
by the Sentencing Commission . . . , subject to any
amendments made to such guidelines by act of
Congress . . . ; and (ii) that, except as provided in
section 3742(g), are in effect on the date the
defendant is sentenced; . . .
(5) any pertinent policy statement – (A) issued by
the Sentencing Commission . . . , subject to any
amendments made to such policy statement by act
of Congress . . . ; and (B) that, except as provided
in section 3742(g), is in effect on the date the
defendant is sentenced[;]
(6) the need to avoid unwarranted sentence
disparities among defendants with similar records

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who have been found guilty of similar conduct;
and
(7) the need to provide restitution to any victims
of the offense.
18 U.S.C. § 3553(a); see Wise, 515 F.3d at 216 (explaining that
the applicable § 3553(a) factors must be given “meaningful
consideration” by sentencing judges). The Guidelines are only
one of the factors for a district court to weigh in determining the
appropriate sentence to impose, and in doing so the court “may
not presume that the Guidelines range is reasonable.” Gall, 128
S.Ct. at 596–97.
We have spoken previously on the fast-track issue in
Vargas, 477 F.3d 94, a pre-Kimbrough case. At sentencing for
Vargas’s illegal reentry offense, he requested a variance at
Gunter step 3, arguing that a sentence within the Guidelines
range “would create an unwarranted disparity in violation of 18
U.S.C. § 3553(a)(6).” Id. at 97 n.6. In rejecting this argument,
we followed the “Second and Fourth through Eleventh Circuits
[to] hold that a district court’s refusal to adjust a sentence to
compensate for the absence of a fast-track program does not
make a sentence unreasonable.” Id. at 99. Focusing specifically
on subsection (a)(6), we reasoned that “any sentencing disparity
authorized through an act of Congress cannot be considered
‘unwarranted.’” Id. at 100. Prior to Kimbrough, nearly every
Court of Appeals to consider the issue had “uniformly rejected

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arguments by non-fast-track defendants that any disparity
created by these programs is unwarranted” under this
subsection. Id. at 98–99 (citing cases from other Courts of
Appeals). Consequently, we concluded that Vargas’s within-
Guidelines sentence was reasonable.
The Supreme Court added another landmark to the
sentencing landscape when it addressed the crack/powder
cocaine Sentencing Guidelines disparity in Kimbrough. The
Anti-Drug Abuse Act of 1986 (Pub. L. No. 99-570, 100 Stat.
3207) “adopted a ‘100-to-1 ratio’ that treated every gram of
crack cocaine as the equivalent of 100 grams of powder
cocaine.” Kimbrough, 128 S.Ct. at 567. The Sentencing
Commission did not use an empirical approach in formulating
the crack/powder Guidelines, as is part of its institutional role,
but instead employed the congressional ratio scheme. Id. at 567.
The Commission later criticized that ratio, concluding that the
resulting disparity between crack and cocaine sentences “fails to
meet the sentencing objectives.” Id. at 568–69 (describing the
Commission’s criticism and Congress’s rejection of
Commission-sponsored amendments to the Guidelines that
would have replaced the 100-to-1 ratio with, at various times, a
20-to-1, 5-to-1, or even 1-to-1 ratio, and the Commission’s
unilateral change that reduced the crack base offense level by
two levels).
Based on this background, Kimbrough held that a district
court may deviate from the Guidelines range for crack cocaine

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offenses, “even in a mine-run case,” if it concludes that the
disparity between ranges for crack and powder cocaine results
in a sentence “greater than necessary” to achieve the sentencing
objectives of § 3553(a). Id. at 564, 575. Under Booker, the
cocaine Guidelines, like all other Guidelines, are advisory only,
and courts err in concluding that the crack/powder disparity
reflected in the Guidelines is effectively mandatory. Id. at 564,
575; see also Gall, 128 S.Ct. at 597 (holding it is procedural
error to treat the Guidelines as mandatory).
Significantly, the Court rejected the Government’s
argument that the cocaine sentencing disparity in the Guidelines
was binding on district courts because it accorded with a policy
mandated by Congress in the 1986 Act. Kimbrough, 128 S.Ct.
at 570–71, 575. Rather, it found that in the 1986 Act Congress
explicitly mandated only statutory maximum and minimum
sentences, not the 100-to-1 ratio reflected in the Guidelines for
the full range of cocaine quantities. Id. at 571–72.
This year, in Spears v. United States, 129 S.Ct. 840
(2009), the Supreme Court reconfirmed and succinctly explained
its holding in Kimbrough.
The only fact necessary to justify such a variance
is the sentencing court’s disagreement with the
[G]uidelines—its policy view that the 100-to-1
ratio creates an unwarranted disparity. . . . That
was indeed the point of Kimbrough: a recognition

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Under step 1, a charge-bargaining program alters the initial5
Guidelines calculation. It is sanctioned by the Attorney General,
but not contemplated by Congress in the PROTECT Act or the
companion Guidelines section. A prosecutor employing this
approach allows a defendant to plead guilty to the less serious
charge of improper entry, thus reducing the Guidelines range
calculation, sometimes well beyond what would otherwise be a
four-level departure at step 2. Under step 2, if a defendant in a
fast-track district pleads guilty pursuant to this program, the
Government agrees to recommend a downward departure from
16
of district courts’ authority to vary from the crack
cocaine Guidelines based on policy disagreement
with them, and not simply based on an
individualized determination that they yield an
excessive sentence in a particular case.
Id. at 842–43 (emphasis in original).
Post-Kimbrough, a district court’s sentencing discretion
in a non-fast-track district remains the same at steps 1 and 2.
That is, for a sentence to be procedurally reasonable, a court that
disagrees with the sentencing disparity created by fast-track
programs cannot alter the calculation of the Guidelines at step
1 to comport with the calculation in a charge-bargaining fast-
track district, nor do we understand that it could unilaterally
grant a formal departure pursuant to Guideline § 5K3.1
under step 2 without the Government’s recommendation. We5

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the Guidelines range based on a formal departure motion, as
stated in Guideline § 5K3.1.
17
deal in this case only with a district court’s ability to consider a
variance on the basis of a fast-track argument post-Kimbrough
at step 3 when fashioning an appropriate sentence to meet the
§ 3553(a) sentencing objectives.
Vargas’s holding under step 3—that it is not an abuse of
a sentencing judge’s discretion to decline to vary on the basis of
fast-track disparity—remains viable after Kimbrough. Vargas,
477 F.3d at 99. This accords with Gunter, where we explained
that a district court “is under no obligation to impose a sentence
below the applicable Guidelines range solely on the basis of the
crack/powder cocaine differential.” 462 F.3d at 249. Thus, in
reviewing a district court’s sentence, we do not conclude that a
sentence is per se unreasonable because the judge declined to
vary from the Guidelines range based on a defendant’s fast-track
argument.
We must clarify Vargas post-Kimbrough, however, to the
extent that it 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

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“Although a panel of this court is bound by, and lacks6
authority to overrule, a published decision of a prior panel, . . . a
panel may reevaluate a precedent in light of intervening
authority . . . .” Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d
Cir. 1996); see also Institutional Investors Group v. Avaya, Inc.,
564 F.3d 242, 276 n.50 (quoting Williams v. Ashland Eng’g Co.,
45 F.3d 588, 592 (1st Cir. 1995) (“An existing panel decision
may be undermined by controlling authority, subsequently
announced, such as an opinion of the Supreme Court . . . .”),
overruled on other grounds by Carpenters Local Union No. 26
v. U.S. Fid. & Guar. Co., 215 F.3d 136 (1st Cir. 2000)).
18
reasoning.6
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.
We analogize this issue to the crack cocaine question
dealt with in Kimbrough. In the cocaine Guidelines context, the
Supreme Court stated that a sentencing “judge must include the
Guidelines range in the array of factors warranting
consideration. The judge may determine, however, that, in the
particular case, a within-Guidelines sentence is ‘greater than

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In Kimbrough, the Supreme Court noted a similar split7
among the Courts of Appeals on the crack cocaine disparity
question. See 128 S.Ct. at 566 n.4 (indicating that our Court (in
Gunter) and the D.C. Circuit Court adopted Kimbrough’s
approach to discretion allowed sentencing judges to consider the
crack/powder cocaine disparity, while the First, Second, Fourth,
Fifth, Seventh, Eighth, and Eleventh Circuit Courts adopted the
rejected approach that a district court has no discretionary
authority to consider that disparity).
19
necessary’ to serve the objectives of sentencing.” Kimbrough,
128 S.Ct. at 564. The Court held that, “[i]n making that
determination, the judge may consider the disparity between the
Guidelines’ treatment of crack and powder cocaine offenses,”
id., and, “[t]o reach an appropriate sentence, . . . disparities must
be weighed against the other § 3553(a) factors.” Id. at 574. By
logical extension we believe a judge may also consider the
disparate treatment of immigration defendants that is created by
fast-track programs in determining whether a Guidelines
sentence is greater than necessary under the § 3553(a) factors.
1. Congressional Policy
Three of our sister Circuit Courts of Appeals—in the
Fifth, Ninth, and Eleventh Circuits—have taken another
approach in re-evaluating this issue after Kimbrough,
concluding that it has no effect on fast-track sentencing
arguments. United States v. Gomez-Herrera, 523 F.3d 554, 5597

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Indeed, at oral argument in this case the Government8
declined to take the Fifth, Ninth, and Eleventh Circuit Courts’
approach. It did not argue—correctly, we believe—that
congressional policy concerning fast-track programs prohibited
the exercise of a district court’s discretion.
20
(5th Cir. 2008) (“Kimbrough, which concerned a district court’s
ability to sentence in disagreement with Guideline policy, does
not control this case, which concerns a district court’s ability to
sentence in disagreement with Congressional policy.”); United
States v. Gonzalez-Zotelo, 556 F.3d 736, 741 (9th Cir. 2009)
(same); United States v. Vega-Castillo, 540 F.3d 1235, 1237
(11th Cir. 2008) (same and refusing to apply Kimbrough to fast-
track disparity issue because Kimbrough dealt with the cocaine
Guidelines). These Courts of Appeals focused on congressional
policy expressed in the PROTECT Act as the sole factor
distinguishing the fast-track issue from the crack cocaine
question in Kimbrough. Because of this, they essentially
concluded that the Guidelines are binding on the fast-track
question.
We disagree with this analysis. Focusing on
congressional policy here is illusory, as we will explain in more
detail, and it does not justify prohibiting a district court’s
discretion at sentencing. Moreover, we reject as superficial the8
factual distinction made by the Eleventh Circuit Court in Vega-
Castillo, 540 F.3d at 1237, that Kimbrough dealt with
crack/powder cocaine sentencing disparity and not fast-track

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sentencing disparity. See United States v. Herrera-Zuniga, 571
F.3d 568, 585 (6th Cir. 2009) (stating in an illegal reentry case
that “[w]e thus see no reason to limit the authority recognized in
Kimbrough and confirmed in Spears to the crack-powder
cocaine context. . . . [Nor do] we stand alone in that regard.”
(citing cases from the First, Second, Fifth, Ninth, and Tenth
Circuit Courts of Appeals)).
Instead, we are more aligned with the post-Kimbrough
view of the First Circuit Court expressed in United States v.
Rodriguez. 527 F.3d 221 (1st Cir. 2008) (holding that post-
Kimbrough a district court can consider fast-track disparity as
grounds for a variance); see also United States v. Stone, __ F.3d
__, 2009 WL 2385458, at *4 (1st Cir. 2009) (“And our
precedent has interpreted Kimbrough as supplying this power
even where a guideline provision is a direct reflection of a
congressional directive.”).
There is no question that the Guidelines are advisory
only. The congressional policy argument attempts to carve out
an exception to this Booker norm by binding a district court’s
sentencing discretion on the fast-track issue. The crux of the
argument is that the PROTECT Act’s congressional directive
sanctioning fast-track programs in certain judicial districts
necessarily authorizes disparate sentencing of immigration
defendants between fast-track and non-fast track districts, so
that the disparity is not “unwarranted” under § 3553(a)(6).
Thus, a district court cannot vary from the Guidelines range on

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the basis of a disagreement with the treatment of defendants in
non-fast-track districts because it is mandated by Congress.
Most courts pre-Kimbrough took this position (see, for example,
Vargas, 477 F.3d at 98–99 (collecting cases)), but it does not
have continued vitality post-Kimbrough.
In Kimbrough, the Supreme Court rejected the
Government’s argument that the 100-to-1 crack/powder cocaine
ratio represented a “specific policy determinatio[n] that
Congress has directed sentencing courts to observe,” thus
making it “an exception to the general freedom that sentencing
courts have to apply the [§ 3553(a)] factors.” 128 S.Ct. at 570
(alteration in original) (internal quotations omitted). The Court
made clear that, absent an express directive from Congress, it
would not read any implicit directive into the Anti-Drug Abuse
Act of 1986. Id. at 571–72 (explaining that Congress used the
100-to-1 crack/powder ratio to trigger the mandatory minimums
and maximums). We think the Supreme Court’s rejection of the
Government’s argument in Kimbrough crosses over to apply to
the implicit congressional directive argument made to support
fast-track sentencing disparities.
The PROTECT Act contains no express congressional
fast-track directive that would constrain a sentencing judge’s
discretion to vary from the Guidelines. The First Circuit Court
stated in Rodriguez that
by its terms, [the fast-track Guideline, § 5K3.1,

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which restates the PROTECT Act’s congressional
directive,] neither forbids nor discourages the use
of a particular sentencing rationale, and it says
nothing about a district court’s discretion to
deviate from the [G]uidelines based on fast-track
disparity [under the § 3553(a) factors]. The
statute simply authorizes the Sentencing
Commission to issue a policy statement and, in
the wake of Kimbrough, such a directive, whether
or not suggestive, is not decisive as to what may
constitute a permissible ground for a variant
sentence.
527 F.3d at 229 (internal quotations and citation omitted).
As embodied in the Guidelines, Congress generally
sanctioned district-wide fast-track programs as a matter of
prosecutorial discretion and cabined the extent of a formal
departure at step 2 pursuant to these programs. The PROTECT
Act did not reduce sentences for illegal reentry defendants in
any specific districts, nor did it dictate the departure level in
fast-track districts for similarly situated defendants. See United
States v. Medrano-Duran, 386 F. Supp. 2d 943, 947 (N.D. Ill.
2005) (surveying various departure levels in fast-track districts).
Moreover, as with all departure motions, the Act did not bind a
sentencing court to accept the Government’s motion, and a court
can exercise its discretion to reject the departure.

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In effect, this approach seems like an end-run around9
Booker’s constitutional analysis that made the Guidelines
advisory in nature.
24
The Act also did not expressly stop an individual
sentencing judge from granting variances at step 3 in non-fast-
track districts based on the congressionally mandated § 3553(a)
factors, nor did it require non-fast-track courts to mete out
higher sentences than courts in fast-track jurisdictions. See
Kimbrough, 128 S.Ct. at 571 (discussing that “Congress has
shown that it knows how to direct sentencing practices in
express terms”); Rodriguez, 527 F.3d at 229 (noting that the
PROTECT Act “says nothing about the court’s capacity to craft
a variant sentence within the maximum and minimum limits”).
By contrast, Congress expressly defined that the statutory
maximum for illegal reentry is 20 years, and a district court
cannot exceed that maximum sentence. See 8 U.S.C. § 1326(b)
(a prior aggravated felony triggers this maximum penalty).
In sum, a Guideline is not a statute. If Congress does not
want district courts to exercise their judicial function to sentence
defendants based on the facts and circumstances of each case
under the guidance of the § 3553(a) factors, then it has the
power to amend the pertinent statute. It has not done so here.
Indeed, to argue otherwise is an attempt to manipulate the
advisory character of the Guidelines. Thus, the attempt to9
distinguish fast-track programs from the sentencing guidance
provided in Kimbrough, and constrain a district court’s

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25
sentencing discretion solely on the basis of a congressional
policy argument, is unpersuasive. See Kimbrough, 128 S.Ct. at
570–73 (indicating that when Congress exercised its power to
bar district courts from using a particular sentencing rationale,
it did so by the use of unequivocal terminology).
Paradoxically, the Fifth Circuit Court case, Gomez-
Herrera, 523 F.3d 554, which relied on the congressional policy
rationale to differentiate the fast-track issue from Kimbrough,
appears to have curtailed a district court’s sentencing discretion
post-Kimbrough more than it had before that decision. The
Court at first stated that it
has never held that a district court may not
consider and give effect to defendant’s argument
for a reduced sentence on th[e] basis [of a fast-
track disparity]. Rather our cases have only
concluded that a district court is not required to
factor in, when sentencing a defendant, the
sentencing disparity caused by early disposition
programs to prevent a sentence from being
unreasonable.
Gomez-Herrera, 523 F.3d at 558 n.1 (internal quotations and
citations omitted). Yet it went on to say that post-Kimbrough “it
would be an abuse of discretion for the district court to deviate
from the Guidelines on the basis of sentencing disparity
resulting from fast track programs that was intended by

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26
Congress. . . . [This deviation] would result from an erroneous
view of the law.” Id. at 563 n.4 (citation omitted). In light of
Kimbrough, this statement strays from the standard set by the
Supreme Court. In its sentencing cases post-Booker, the Court
has been clear that a sentencing judge has discretion to impose
a sentence grounded in the § 3553(a) factors regardless whether
it varies from the Guidelines range. See, e.g., Rita v. United
States, 551 U.S. 338, 127 S.Ct. 2456 (2007); Gall, 128 S. Ct. at
597.
Moreover, the existence of charge-bargaining programs
in several districts underscores that these alternative district-
wide, early-disposition programs operate outside the bounds of
not only the Protect Act, but also Guidelines § 5K3.1. See
Medrano-Duran, 386 F. Supp. 2d at 946–47; see also
Sentencing Commission Report, at 69 (indicating that these
programs may be used “to achieve sentencing outcomes below
the otherwise applicable [G]uideline[s] range” and the effect of
“charge bargaining on achieving the statutory purposes of
sentencing” is hard to analyze). The way these programs work
is that, rather than recommending a departure via motion at step
2, the Government at the outset reduces the more serious illegal
reentry charge to one or two less serious charges—improper
entry, or eluding examination and inspection by an alien, in
violation of 8 U.S.C. § 1325(a). The qualifying defendant
pleads guilty to one or both of these lesser charges, and thus
alters the Guidelines range calculation at step 1.

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27
As noted, this type of immigration fast-track protocol can
result in a sentence that is lower than what would have been a
four-level departure from an illegal reentry offense. See
Medrano-Duran, 386 F. Supp. 2d at 946–47. Charge-bargaining
programs are not part of the PROTECT Act, and are only
incorporated into the Attorney General’s policy memorandum.
See, e.g., Attorney General Memorandum (discussing charge-
bargaining programs). Though these programs appear to be a
permissible extension of prosecutorial discretion, there is
nothing to show that defendants in charge-bargaining districts
are less culpable than those who have committed the same
offense in non-fast-track districts. While charge-bargaining
brings even greater disparity to the system by fostering lower
sentences for certain immigration offenses, it does not violate
the PROTECT Act. Because it is not included in the PROTECT
Act (and thus is not swept into the congressional policy
argument), as part of a district court’s sentencing function,
particularly § 3553(a)(6), the court could take into account such
disparate treatment among these immigration defendants.
2. Deference to the Guidelines
The Supreme Court explained in Gall that the Guidelines
range is not presumptively reasonable, but generally acts as the
“initial benchmark” in crafting a sentence. Gall, 128 S.Ct. at
596–97. A sentencing judge factors in the Guidelines range “to
secure nationwide consistency,” id. at 596, because the
Sentencing Commission develops the Guidelines to “‘reflect a

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On the other hand, when the Guidelines exemplify the10
Commission’s exercise of its institutional role, “closer review
may be in order when the sentencing judge varies from the
Guidelines based solely on the judge’s view that the Guidelines
range ‘fails to properly reflect § 3553(a) considerations’ even in
a mine-run case.” Kimbrough, 128 S.Ct. at 575 (quoting Rita,
127 S.Ct. at 2465).
28
rough approximation of sentences that might achieve
§ 3553(a)’s objectives’” in the heartland of cases. Kimbrough,
128 S.Ct. at 574 (quoting Rita, 127 S.Ct. at 2465). In the normal
course, the Commission’s discrete institutional role is to
formulate the Guidelines through a detailed empirical approach
by surveying national sentencing practices, pre-Guidelines
sentencing practices, judicial decisions, other data, or comments
from participants and experts in the field. See Kimbrough, 128
S.Ct. at 574 (citing Rita, 127 S.Ct. at 2465 (explaining that the
Commission “has the capacity the courts lack” to make these
empirical determinations)).
However, if the Commission does not act in its
characteristic role, then a sentencing judge can give those
Guidelines less deference, “even in a mine-run case,” because
they “fail[] properly to reflect § 3553(a) considerations.”10
Kimbrough, 128 S.Ct. at 574–75 (quoting Rita, 127 S.Ct. at
2465). Kimbrough concluded that the Commission did not act
in its institutional capacity in the crack cocaine context, and we
believe that it similarly did not do so in the fast-track context.

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29
“The [Sentencing] Commission implemented
[Congress’s] directive at section 401(m)(2)(B) of the PROTECT
Act regarding early disposition programs by adding a new policy
statement at [Guidelines §] 5K3.1,” but in doing so it also
openly expressed its criticism, “specifically the potential for
unwarranted sentencing disparity based on geography.”
Sentencing Commission Report, at 79. The Commission stated:
The Department of Justice requested that the
Commission implement the directive regarding
the early disposition programs in section 401(m)
of the PROTECT Act in a similar unfettered
manner by merely restating the legislative
language. . . . The Commission notes that
implementation of the directive in this manner has
the potential to create unwarranted sentencing
disparity. . . . Defendants sentenced in districts
without authorized early disposition programs,
however, can be expected to receive longer
sentences than similarly-situated defendants in
districts with such programs. This type of
geographical disparity appears to be at odds with
the overall Sentencing Reform Act goal of
reducing unwarranted sentencing disparity
among similarly-situated defendants.
. . . .

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30
. . . . [T]he Commission cannot determine
the full impact of fast track programs on the
departure rate because fast track departures are
documented in various ways by the judicial
districts that have such programs.
Id. at 66–67, 79–80 (emphases added). Cf. Kimbrough, 128
S.Ct. at 568 (indicating that the Sentencing Commission
“immediately used the 100-to-1 ratio to define base offense
levels for all crack and powder offenses,” but in a Commission
report “later determined that the crack/powder sentencing
disparity is generally unwarranted” and “‘fails to meet the
sentencing objectives set forth by Congress’” in the Sentencing
Reform Act). Indeed, it appears that, absent a downward
variance, defendants sentenced in non-fast-track districts who
would have been eligible for fast-track treatment in fast-track
districts receive longer sentences then their fast-track
counterparts simply by virtue of the geographic district where
they are prosecuted. Cf. Kimbrough, 128 S.Ct. at 566 (noting
that the “100-to-1 ratio yields sentences for crack offenses three
to six times longer than those for powder offenses involving
equal amounts of drugs”).
Moreover, the implementation of fast-track districts
appears to be uneven. See U.S. Sentencing Commission, 2007
Sourcebook of Federal Sentencing Statistics, at 183, 216 (“2007
Sourcebook”); see also United States v. Gramillo-Garcia, __ F.
Supp. 2d __ , No. 09-CR-139, 2009 WL 1543900, at *3 (N.D.

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31
Ill. June 3, 2009) (stating that, based on statistical information
provided by the Government for fiscal year 2003, the Western
District of Washington, a fast-track district, has less than one
illegal reentry case per prosecutor per year, and in other fast-
track districts, such as Oregon, Idaho, Nebraska, and North
Dakota, each AUSA on average handles only two or three illegal
reentry cases per year). For example, in the District of
Nebraska, which is a fast-track district, immigration offenses
comprised 11.77% of all sentences, while in the Northern
District of Florida, which is a non-fast track district,
immigration offenses comprised 20.94% of all sentences. 2007
Sourcebook, at 183, 216; see also Stephanos Bibas, Regulating
Local Variations in Federal Sentencing, 58 Stan. L. Rev. 137,
145–58 (2005) (discussing unjustified sentencing variations
based on fast-track programs and noting that some districts that
process large numbers of immigration cases employ fast-track
programs, while other districts with similar or heavier loads,
such as the Southern District of Florida, do not offer these
programs); Jane L. McClellan & Jon M. Sands, Federal
Sentencing Guidelines and the Policy Paradox of Early
Disposition Programs, 38 Az. St. L.J. 517, 523 (2006) (“In
some districts with a high rate of immigration cases, such as the
District of Nevada, . . . the New York districts, [certain] Florida
districts, and certain divisions in the Southern District of Texas,
there are still no fast-track plea offers.”).
These statistics lead us to question whether all approved
fast-track districts actually have overwhelming immigration

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Because of the uneven implementation of fast-track districts11
and policies within such districts, such a patchwork could result
in similarly culpable defendants receiving vastly different
sentences based fortuitously on the district in which they were
arrested. A 2006 article gives a series of examples to
demonstrate the disparities that can result from these programs.
See McClellan & Sands, 38 Az. St. L.J. at 524–25. One such
hypothetical example describes three defendants traveling
together from Mexico to work in Nebraska. They cross through
Western Texas where one worker is arrested for illegal reentry.
This is a fast-track district, and he is given a one-level departure.
His friend is similarly arrested in Oklahoma, a non-fast-track
district, and given no departure, which results in a Guidelines
range almost two years higher than the first defendant. The final
defendant is picked up in Nebraska, a fast-track district, and gets
a more significant departure, which results in the lowest
Guidelines range. Moreover, we can also imagine a scenario
where a defendant lives with his family in a fast-track district
(e.g., Northern California) but works in a different, non-fast-
32
caseloads, which is what Congress appears to have accepted as
a given in enacting the PROTECT Act’s sanctioning of such
programs. The Sentencing Commission has also observed that
reliable data documenting the effect of these programs is
difficult to ascertain. See, e.g., Sentencing Commission Report,
at 62–70. Consequently, it does not appear to be clear to the
Commission (based on its limited statistical analysis), nor is it
evident to us, why some districts have fast-track programs while
others do not.11

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track district (e.g., Nevada), and is prosecuted, to his detriment,
for illegal reentry in the district were he works (or vice versa).
33
Like the crack/powder cocaine ratio in Kimbrough, the
fast-track departure scheme “do[es] not exemplify the
Commission’s exercise of its characteristic institutional role” in
developing the Guidelines. Kimbrough, 128 S.Ct. at 575
(explaining the same for the crack cocaine Guidelines). In
authorizing a departure for defendants in fast-track districts
only, the Commission did not systematically evaluate the issue
before implementing the fast-track Guideline. Cf. id. at 567,
575 (explaining that, in formulating the crack cocaine
Guidelines, the “Commission did not use this empirical
approach . . . . Instead, it employed the 1986 [Anti-Drug Abuse]
Act’s weight-driven scheme” to set 100-to-1 ratio “offense
levels for crack and powder cocaine . . . in line with the 1986
Act”). Rather, it quickly adopted the congressional language.
Cf. id. Accordingly, as the First Circuit Court explained in
Rodriguez, the “[G]uidelines and policy statements embodying
these judgments deserve less deference than the sentencing
guidelines normally attract,” and, as a result, may produce a
sentence that is greater than necessary to provide just
punishment in a particular case under the § 3553(a) factors. 527
F.3d at 227 (internal quotations and citations omitted); see also
Kimbrough, 128 S.Ct. at 574–75 (explaining that the Guidelines
are not binding and in the crack cocaine context a district court
may vary “even in a mine-run case”).

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34
In sentencing a defendant for illegal reentry in a non-fast-
track district at step 3, a sentencing court “must make an
individualized assessment based on the facts presented,” and
“judge their import under § 3553(a).” Gall, 128 S.Ct. at 597.
We entrust this sentencing discretion to the district court
because it is most familiar with the details of the offender and
the offense that set the basis for the sentence. See id. at 597–98.
The court may have a disagreement with the Guidelines range
because it believes that it does not represent the “heartland” of
cases. See Kimbrough, 128 S.Ct at 574–76. Nevertheless, it
must still give meaningful consideration to the sentencing goals,
and, in particular, the command to “impose a sentence
sufficient, but not greater than necessary, to comply with the
purposes set forth” in subsection (a)(2)—the so-called
parsimony provision. Id. at 570–71; see also Spears, 129 S.Ct.
at 842–43. We also note that § 3553(a)(5) discusses “any
pertinent policy statement [that is] issued by the Sentencing
Commission.” The Commission’s criticism of the disparity
created by fast-track programs could be considered by a district
court under this factor as well. And in sentencing a defendant
below the Guidelines range, it would not be unreasonable for a
court to take into account the lower, departure-based fast-track
range and use it as a barometer in crafting the appropriate
sentence. See Spears, 129 S.Ct. at 842–43.
Finally, we address the argument that affording district
courts discretion on this issue will create even more ad hoc
sentencing disparity in the system. We are not convinced that

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35
this discretion would result in further disparity. In any event, we
disagree that the possibly greater disparity perceived would
justify proscribing the discretionary authority of a sentencing
judge. As Kimbrough explained, “[t]o reach an appropriate
sentence, these disparities must be weighed against the other
§ 3553(a) factors and any unwarranted disparity created by the
crack/powder ratio itself,” or in this case the uneven
implementation of fast-track programs in certain jurisdictions
that create disparate sentences for similarly culpable defendants.
Id. Moreover, a district court is not afforded unfettered
discretion in sentencing defendants. It is constrained by our
procedural and substantive reasonableness review, and a variant
sentence that is based solely on a fast-track disparity,
particularly if it is below the four-level departure authorized by
Congress in fast-track districts, might be unreasonable in our
view.
3. Variance in an Individual Case
While we have concluded that a district court can
consider a variance on the basis of a fast-track argument, under
what circumstances would such a variance be deemed
reasonable? A generalized argument to a district court that a
defendant should be sentenced below the Guidelines range
because of fast-track disparity is alone not sufficient to justify

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In this way, the fast-track issue differs from the crack12
cocaine analysis in Kimbrough. The fast-track disparity applies
to a segment of immigration defendants that are unfortuitously
prosecuted in non-fast-track districts (but would have qualified
for fast-track treatment), whereas the crack/powder cocaine
disparity applies to crack defendants across-the-board.
36
such a variance. This type of argument does not enable a court12
to consider the validity of fast-track disparities as applied to an
individual defendant and impose a sentence in a tailored manner
under the sentencing factors. See Gall, 128 S.Ct. at 597.
However, a defendant is not required to show that he is exactly
similarly situated to a particular fast-track defendant in another
district.
To justify a reasonable variance by the district court, a
defendant must show at the outset that he would qualify for fast-
track disposition in a fast-track district. For example, a
defendant’s serious criminal history may disqualify him in most
fast-track districts. This type of showing would also be an
instrumental factor for a district court in determining under
§ 3553(a) whether a Guidelines range sentence is greater than
necessary to meet the sentencing objectives. The Government,
obviously, would be free to contend to the contrary—that the
defendant would not qualify in a fast-track district or that the
adjusted range would be different than that suggested by the
defendant.

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The requirement we outlined above, however, is not one of13
exacting particularity. We do not contemplate that a defendant
must seek out and match himself with a specific defendant in a
fast-track jurisdiction that has exactly similar circumstances.
Such a tall requirement would be overly burdensome on the
defendant and unnecessary in light of Kimbrough’s holding. To
illustrate, a defendant would not have the resources to comb
through individual sentences in fast-track districts and pin down
another defendant with circumstances paralleling his own.
Moreover, a non-fast-track defendant would not have exactly
parallel circumstances because he would not have had the
opportunity to waive his appellate or other rights in exchange
for the departure recommendation, as is part of a plea agreement
in fast-track districts (and not available to a defendant in a non-
fast-track district). See Rodriguez, 527 F.3d at 230–31.
37
In this case, Arrelucea stated in his sentencing brief that
he qualified for a departure in fast-track districts, and that if he
“were to receive a 4-level reduction . . . his [G]uideline[s]
sentencing range would be 30 to 37 months,” instead of his 46
to 57 month non-fast-track range. Overall, based on the totality
of the § 3553(a) factors and Arrelucea’s circumstances, he
argued that a sentence between two and three years would be
appropriate. The Government responded that Arrelucea did not
show that he is “similarly situated to other defendants found
guilty of similar conduct.”13
Additionally, a defendant must demonstrate that he would
have taken the fast-track guilty plea if offered (and, in so doing,

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38
waived his appellate rights, including his habeas rights but for
ineffective assistance of counsel). For example, in Arrelucea’s
case the sentencing record shows that he would have accepted
a fast-track plea if the Government had offered him one. He
offered to accept a plea agreement and waive his appellate (and,
we presume, his habeas) rights if the Government would
stipulate to a four-level departure at sentencing. The
Government, of course, rejected this offer. Moreover, at the
sentencing hearing defense counsel informed the District Court
that Arrelucea would have accepted a fast-track plea. We do not
require a more extensive showing. Requiring anything more
than what Arrelucea did in this case would create an
insurmountable obstacle for a defendant because the point in
affording a sentencing judge discretion to consider the disparity
created between fast-track and non-fast-track districts as part of
the compendium of § 3553(a) sentencing factors is that this type
of plea is not available to a defendant in a non-fast-track district.
As is conventional sentencing practice, the Government would
be free to argue that a variance below the Guidelines range on
the basis of fast-track disparity would not comport with the
§ 3553(a) factors.
IV. Conclusion
At the sentencing hearing, the District Court concluded
that it was prohibited by Vargas from considering Arrelucea’s
fast-track disparity argument. This is no longer true in light of
Kimbrough (as confirmed by Spears), and thus a district court is

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Arrelucea raises two other arguments as part of his appeal.14
First, he claims that his sentence was procedurally unreasonable
because the District Court did not give meaningful consideration
to the applicable § 3553(a) factors. We quickly dispose of this
argument because we are vacating Arrelucea’s sentence and the
District Court will have another opportunity on remand to
consider the parties’ arguments, the sentencing factors, and
impose an appropriate sentence.
Second, Arrelucea argues that the “felony” and
“aggravated felony” provisions of the illegal reentry statute, 8
U.S.C. § 1326(b)(1) and (2), are unconstitutional in light of
Apprendi v. United States, 530 U.S. 466, 490 (2000). He raised
this argument before the District Court, so waiver is not an issue
here. However, it is foreclosed by the Supreme Court’s decision
on this issue in Almendarez-Torres v. United States, 523 U.S.
224 (1998), as Arrelucea recognizes. Although several Supreme
Court decisions have cast doubt on the statute’s continuing
constitutional viability post-Apprendi, and the Court may
ultimately sever certain provisions of the statute, we are bound
by Almendarez-Torres and Arrelucea raises the issue only to
preserve it. See Shepard v. United States, 544 U.S. 13, 27–28
(2005) (Thomas, J., concurring in part) (“[A] majority of the
Court now recognizes that Almendarez-Torres was wrongly
decided.”); see also Vargas, 477 F.3d at 104–05 (discussing that
39
not barred from considering a fast-track argument when
evaluating the applicable § 3553(a) factors, including the
Guidelines range, at the third step of sentencing (setting the
sentence). Accordingly, we vacate Arrelucea’s sentence and
remand to the District Court for reconsideration.14

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recent decisions have questioned the validity of Almendarez-
Torres).
40

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