NOT PRECEDENTIAL


      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                     No: 09-2554


          UNITED STATES OF AMERICA

                            v.

                              .
KEVIN DWIGHT MCKENZIE a/k/a “ARISTEDE EVANS”


           KEVIN DWIGHT MCKENZIE,
                       Appellant


      Appeal from the United States District Court
        for the Eastern District of Pennsylvania
               (Crim. No. 09-cr-00046-1)
       District Judge: Hon. C. Darnell Jones, II


    Submitted pursuant to Third Circuit LAR 34.1(a)
                    March 8, 2010

        Before: McKEE, Chief Judge, BARRY
          and GREENBERG, Circuit Judges


          (Opinion filed: December 10, 2010)


                      OPINION
McKEE, Chief Judge.

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

illegal reentry after deportation. For the reasons that follow, we will affirm.

                                             I.1

       McKenzie makes the following argument on appeal:

               The district court erred in rejecting the defense request for a fast-
       track disparity variance from the Sentencing Guidelines, because the
       court's ruling was based in part on the lack of a government motion for a
       fast-track departure, even though no such motion is required, and
       because the court applied a burden of proof since rejected by this court


Appellant=s Br. at i (internal quotation marks omitted).

       After pleading guilty, McKenzie requested a downward departure/variance

because the Eastern District of Pennsylvania lacks a fast-track program.2 He argued that

a departure/variance was necessary to avoid sentencing disparity with similarly situated

defendants sentenced in fast-track jurisdictions. The transcript of the sentencing hearing

belies McKenzie=s argument. The district court stated:

       I am likewise acutely sensitive to the arguments in support of departure or
       variance by [defense] counsel, based upon [a fast-track disparity] . . .
       And while departure may be authorized in this case, if I accepted those arguments,
       I choose not to depart because I believe departure is not warranted under the
       circumstances herein, and [McKenzie=s] history.


1
  Since we write primarily for the parties who are familiar with this case, we need not set
forth the factual or procedural background.
2
  The function and history of the fast-track program are described in detail in United
States v. Arrelucea-Zamudio, 

, 145-46 (3d Cir. 2009), and United States v.
Vargas, 

, 98 n. 8 (3d Cir. 2007).

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J.A. at 77. Thereafter, the court did refer to the burden of proof:

       . . . the Court, as indicated, does not believe that a variance [for fast-track
       disparity] is warranted. The [Third Circuit] herein, in its pronouncements,3 [has]
       indicated that there is no obligation on the trial court=s part, to accept the argument
       of your counsel. But, nevertheless, I=ve considered it, against the backdrop of the
       totality of your circumstances and again, I do not believe that it is justified.
       Moreover, I would make, also, reference to the [Tenth] Circuit=s Martinez Trujillo
       decision4 . . . >upon the Motion of the Government, the Court may depart
       downward.= In McKenzie=s case, the Government has the authority to file such a
       Motion, such as Departure, but it has not done so in this case.

J.A. at 79.




3
  The court alludes to Vargas, 

, for the proposition that Aa court that does not
adjust a sentence to compensate for a fast track program, is acting reasonably.@ J.A. at
64. In fact, in Arrelucea-Zamudio we took the “opportunity to clarify Vargas and expand
on [it,] . . . conclud[ing] that, under the logic of Kimbrough [v. United States, 

(2007)], it is within a sentencing judge‟s discretion to consider a variance from the
Guidelines on the basis of fast-track disparity. 

.
4
  In United States v. Martinez-Trujillo, the Court of Appeals for the Tenth Circuit rejected
an appellant=s fast-track argument; in dicta the court stated: Athe decision that a defendant
be >fast-tracked= is not made by the defendant but by the United States Attorney.@ 

, 1269 (10th Cir. 2006) citing U.S.S.G. ' 5K3.1 (AUpon 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 of the United States and the
United States Attorney for the district in which the court resides@).

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       McKenzie asserts that the district court committed reversible error when it Amade

clear that [it] viewed [its] discretion to grant such a variance as being circumscribed by

the requirement . . . [that a variance be granted] only upon the „motion of the

government.‟” Appellant=s Br. 13. However, given the court=s unambiguous statement

that the defendant=s circumstances did not warrant such an adjustment (AI choose not to

depart because I believe departure is not warranted under the circumstances herein@), the

subsequent reference to a government motion cannot be interpreted as a statement that

the court would have granted a departure had a motion been made, or that any

variance/departure was conditioned on the government making an appropriate motion.

Rather, the court was merely noting the absence of a motion. However, given the court=s

appropriately dim view of the defendant=s personal circumstances, it is clear that the court

did not believe that the requested adjustment in the Guideline range was appropriate.

                                              II.

       We use a two-step process when reviewing sentences for abuse of discretion. Gall

v. United States, 

, 51 (2007). First, we review for significant procedural

errors, including Afailing to consider the ' 3553(a) factors, . . . or failing to adequately

explain the chosen sentence.@ United States v. Arrelucea-Zamudio, 

, 145

(3d Cir. 2009) quoting 

. If a sentence is procedurally sound, we

review the Asubstantive reasonableness@ of the sentence, 

; A[t]he

touchstone of >reasonableness= is whether the record as a whole reflects rational and



                                               4
meaningful consideration of the factors enumerated in 18 U.S.C. ' 3553(a).@ United

States v. Grier, 

, 571 (3d Cir. 2007) (en banc).

                                             III.

       In Arrelucea-Zamudio, we held that a sentencing court has the Adiscretion to

consider a variance from the Guidelines on the basis of a fast-track disparity@ during step

three of the Gunter sentencing 

, 148-49. However, we noted

that Ait is not an abuse of a sentencing judge‟s discretion to decline to vary@ for a fast-

track disparity nor is Aa sentence . . . per se unreasonable because the judge declined to

vary@ for a fast-track disparity. 

Thus we have upheld a sentence where the

record establishes an exercise of discretion, regardless of whether the variance or

departure was granted, and we have remanded for clarification where the record did not

clearly indicate whether the court understood its discretion to grant a fast-track

adjustment.

       Unlike the district court in Arrelucea-Zamudio, the district court here presciently

exercised its discretion to Aaccept@ a fast-track argument, and Aconsidered it@ in light Aof

the totality of [McKenzie=s] circumstances.@ J.A. at 77, 79. After completing an

individualized assessment of the ' 3553(a) factors, the court denied any variance or



5
  In United States v. Gunter, 

, 247 (3d Cir. 2006), we established a three-
step process for conducting a sentencing hearing: (1) a court must calculate the correct
Guidelines sentence; (2) rule on any motions for departure, stating on the record whether
the motion was granted and explaining how disposition of any motion affects the
calculation; and (3) exercise its discretion by considering the relevant ' 3553(a) factors.

                                               5
departure because of the need to deter deported felons from illegally reentering this

country. J.A. at 70.

       The district court Aset forth enough to satisfy [us] that [it] has considered the

parties= arguments and has a reasoned basis for exercising [its] own legal decisionmaking

authority.@ Rita v United States, 

, 339 (2007). Therefore, we find no error.

                                   IV. CONCLUSION.

       Accordingly, the sentence of the district court will be affirmed.




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