US v. Romero-Candelaria

Filing 920060712

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-5185

UNITED STATES OF AMERICA, Plaintiff - Appellant, versus CARLOS ROMERO-CANDELARIA, a/k/a Carlos Romero, a/k/a Carlos Candelaria, Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (CR-05-63)

Submitted:

April 27, 2006

Decided:

July 12, 2006

Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Eric D. Goulian, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

PER CURIAM: The United States appeals Carlos Romero-Candelaria's sentence for illegally reentering the United States after being deported, see 8 U.S.C.A. § 1326(a), (b)(2) (West 2005). imposed a below-guidelines variance The district court to avoid an

sentence

"unwarranted sentence disparit[y]," 18 U.S.C.A. § 3553(a)(6) (West 2000), between Romero-Candelaria and defendants that had

participated in a "fast-track" program.*

Finding the sentence

unreasonable, we vacate and remand for resentencing.

I. Romero-Candelaria, a citizen of Mexico, illegally entered the United States in November 1995. In August 1998, he was convicted

in North Carolina of attempted second-degree kidnapping and was sentenced to ten to twelve months imprisonment. sentence, he was deported on March 1, 1999. Romero-Candelaria reentered the United States without After serving his

permission in approximately April 2003. Almost two years later, he was charged in North Carolina with driving while his license was revoked. After it was determined that Romero-Candelaria had

reentered the country illegally, he was indicted on a single count of reentering the United States after having been deported, see

The nature of such programs is discussed in our recent opinion in United States v. Perez-Pena, No. 05-5054, 2006 WL 1791697, at *1-2 (4th Cir. June 30, 2006). 2

*

8 U.S.C.A. § 1326(a), (b)(2). without a plea agreement.

He pleaded guilty to the indictment

At sentencing, the district court began by calculating RomeroCandelaria's sentencing guideline range. Because Romero-Candelaria had been convicted of a felony crime of violence--the attempted kidnapping--prior to his deportation, the district court applied a 16-level increase to his base offense level of 8. States (2004). Sentencing Guidelines Manual § 2L1.2(a), See United (b)(1)(A)(ii)

Application of a 3-level adjustment for acceptance of

responsibility, see U.S.S.G. § 3E1.1, reduced the total offense level to 21. With a Criminal History Category of IV, RomeroThe district

Candelaria's guideline range was 57 to 71 months.

court then heard argument on a request by Romero-Candelaria for a below-guidelines sentence. necessary to avoid an He contended that such a sentence was unwarranted sentence disparity with

defendants who had received "fast-track" sentences. argued that the nature and circumstances of the

He further attempted

kidnapping of which he was convicted, his relatively modest other criminal history, his acceptance of responsibility, and his

agreement to return to Mexico, when considered together, also warranted a below-guidelines sentence. In contrast, the Government requested imposition of a sentence within the guideline range. The Government denied that any

disparity produced by such a sentence would be "unwarranted" since

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Romero-Candelaria did not participate in any fast-track program and was therefore not similarly situated to those who did. At the

close of arguments, the court imposed a 24-month sentence--33 months less than the low end of the guideline range--in order to avoid an unwarranted sentence disparity with defendants who

participated in fast-track programs.

II. The Government argues that the district court erred in

imposing a below-guidelines sentence to account for sentences received by defendants participating in fast-track programs. agree. Our recent decision in United States v. Perez-Pena, No. 055054, 2006 WL 1791697, at *7 (4th Cir. June 30, 2006), establishes that the sentence disparity between a non-fast-track defendant and one who received a fast-track sentence is not "unwarranted" within the meaning of 18 U.S.C.A. § 3553(a)(6). Romero-Candelaria's sentence as We therefore vacate and remand for We

unreasonable

resentencing. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before us and argument would not aid the decisional process. VACATED AND REMANDED

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