US v. Jose Reyes-Infante

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cr-00025-1. Copies to all parties and the district court/agency. [998808320] [11-4898]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4898

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE GUADALUPE REYES-INFANTE, a/k/a Ramiro Infante-Valadez,
a/k/a Jose Guadalupe Mesa-Reyes, a/k/a Jose Martinez
Hernandez, a/k/a Jose Meza-Reyes, a/k/a Jose Reyes Mesa,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.
Irene C. Berger,
District Judge. (5:11-cr-00025-1)

Submitted:

February 28, 2012

Before NIEMEYER and
Senior Circuit Judge.

GREGORY,

Decided:

Circuit

Judges,

March 13, 2012

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, Erik S. Goes,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jose Guadalupe Reyes-Infante pled guilty to unlawful
reentry after previously being deported following conviction of
an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006), without benefit of a plea agreement.

The district court

sentenced him to a term of thirty-six months’ imprisonment, a
downward

variance

of

one

month

which

the

parties

agreed

was

warranted to ensure that Reyes-Infante received credit for the
time he had already spent in custody.
sentence,

contending

that

his

Reyes-Infante appeals his

sentence

is

unreasonable.

We

affirm.
Reyes-Infante’s offense level calculation included a
16-level

enhancement

because

he

had

previously

been

deported

after conviction for a crime of violence — attempted capital
murder.
(2010).

U.S.

Sentencing

Guidelines

Manual

§ 2L1.2(b)(1)(A)

Reyes-Infante did not contest the calculation of his

Guidelines range.

However, he requested a downward departure

pursuant to 18 U.S.C. § 3553(a) (2006), on two grounds: first,
that the 16-level increase for deportation after an aggravated
crime was not based on empirical data, and, second, that the
lack of a fast track program created an unwarranted disparity
between him and similarly situated defendants in districts with
fast track programs who were eligible for a downward departure
under

USSG

§ 5K3.1,

p.s.

See
2

USSG

§ 3553(a)(6)

(need

for

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sentence

“to

Date Filed: 03/13/2012

avoid

disparity

among

Page: 3 of 7

defendants

with

similar

records who have been found guilty of similar conduct”).
Reyes-Infante

acknowledged

this

court’s

precedent

holding that sentencing disparity resulting from the fact that
not all districts have fast track programs is not an unwarranted
disparity under § 3553(a)(6), and that “the need to avoid such
disparities

[does]

not

justify

guideline variance sentence.”

the

imposition

of

a

below-

United States v. Perez-Pena, 453

F.3d 236, 244 (4th Cir. 2006).

However, Reyes-Infante pointed

out that there is now a circuit split concerning whether United
States

v.

Kimbrough,

552

U.S.

85

(2007), *

has

changed

the

analysis, making a variance on this ground available.
The district court decided that a thirty-seven-month
sentence, the bottom of the Guidelines range, was sufficient but
not greater than necessary in light of Reyes-Infante’s criminal
history

and

his

repeated

illegally

entries

into

the

United

States.

The court was later persuaded to reduce the sentence to

thirty-six months to give Reyes-Infante credit for the time he

*

In Kimbrough, the Supreme Court held that a district court
may deviate from the advisory Guidelines range for crack cocaine
offenses if it concludes that the disparity between the ranges
for crack and power cocaine results in a sentence greater than
necessary to achieve the sentencing goals of § 3553(a). 552 U.S.
at 91.

3

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had spent in custody after his arrest, a variance to which the
government did not object.
On
is

unreasonable

sentence

appeal,

Reyes-Infante
because,

first
like

argues

the

that

crack

his

Guideline

reviewed in Kimbrough, the policy underlying § 2L1.2(b)(1)(A) is
not supported by empirical data.

He relies on United States v.

Amezcua-Vasquez, 567 F.3d 1050, 1055-56, 1058 (9th Cir. 2009)
(holding

that

16-level

increase

resulted

in

unreasonable

sentence where predicate offense was too old to be counted in
criminal

history

and

defendant

had

no

later

convictions

for

violent offenses).
We

review

a

sentence

under

a

deferential

abuse

of

discretion standard, which requires consideration of both the
procedural

and

substantive

reasonableness

of

a

Gall v. United States, 552 U.S. 38, 41, 51 (2007).

sentence.
If there is

no procedural error, and none is alleged here, we review the
substantive
totality

of

reasonableness
the

of

circumstances

the
to

sentence
see

by

whether

examining
the

“the

sentencing

court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).”

United

States v. Mendoza-Mendoza, 597 F.3d 212 (4th Cir. 2010).
We recently held that, although after Kimbrough, “a
sentencing court may be entitled to consider policy decisions
underlying the Guidelines, it is under no obligation to do so.”
4

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United States v. Rivera-Santana, ___ F.3d ___, 2012 WL 310871
(4th Cir. Feb. 2, 2012) (internal citation omitted).

Kimbrough

does not require appellate courts to disagree with the policy
underlying a guideline.

United States v. Talamantes, 620 F.3d

901, 902 (8th Cir. 2010) (per curiam).

While “district courts

certainly may disagree with the Guidelines for policy reasons
and may adjust a sentence accordingly[,] . . . if they do not,
[appellate courts] will not second-guess their decisions under a
more lenient standard simply because the particular Guideline is
not

empirically-based.”

United

States

564 F.3d 357, 367 (5th Cir. 2009).

v.

Mondragon-Santiago,

Although Reyes-Infante had

no prior convictions that counted in his criminal history, the
district court noted that he had convictions for theft, attempt
to commit capital murder on a police officer, and burglary of a
building, as well as repeated illegal reentries, and that prior
sentences

had

not

deterred

him

from

criminal

conduct.

We

conclude that the district court did not abuse its discretion in
deciding not to vary below the Guidelines range to offset the
16-level enhancement.
Next, Reyes-Infante maintains that his sentence fails
to

account

for

the

sentencing

disparity

between

similarly

situated defendants in districts with fast track programs and
those like him who are sentenced in a district lacking such a
program.

He questions whether Kimbrough calls Perez-Pena into
5

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question and notes that, post-Kimbrough five circuits have held
that courts may consider fast-track disparity in the § 3553(a)
analysis.

Compare United States v. Jiminez-Perez, 659 F.3d 704

(8th Cir. 2011) (disparity resulting from absence of fast track
program not excluded as sentencing factor); United States v.
Reyes-Hernandez,

624

F.3d

405,

417

(7th

Cir.

2010)

(same);

United States v. Camacho-Arellano, 614 F.3d 244 (6th Cir. 2010)
(same); United States v. Arrelucea-Zamudio, 581 F.3d 142, 149
(3d Cir. 2009) (same); United States v. Rodriquez, 527 F. 221,
229

(1st

Cir.

2008)

(same);

with

United

States

v.

Gonzalez-

Zotelo, 556 F.3d 736, 739-41 (9th Cir. 2009) (Kimbrough did not
undermine precedent holding that fast track disparities are not
unwarranted);

United

States

v.

Vega-Castillo,

540

F.3d

1235,

1239 (11th Cir. 2008) (same); United States v. Gomez-Herrera,
523 F.3d 554, 562-63 (5th Cir. 2008) (same).
We

have

not

yet

resolve it in this case.
that

it

believed

sentencing
program.
arguments.

it

disparity

addressed

issue,

but

need

not

The district court did not indicate

lacked
based

the

authority
upon

the

to

consider

absence

of

a

a

possible

fast-track

Instead, the district court rejected Reyes-Infante’s
In

its

explanation

for

the

sentence,

which

was

initially within the Guidelines range, the district court found
that

Reyes-Infante

repeatedly

reentered

the

United

States

without permission, committed crimes after illegal reentry, and
6

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had not been deterred from such action by his prior sentences.
The

district

concluded

court’s

that

a

findings,

sentence

and

within

the
the

fact

that

Guidelines

the

court

range

was

sufficient, indicate that the court chose not to vary downward
to offset the lack of a fast track program.

We conclude that

the sentence was not procedurally or substantively unreasonable.
We therefore affirm the district court’s judgment.
dispense

with

oral

argument

because

the

facts

and

We

legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

7