PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
             ______

            No. 10-1833
              ______

   UNITED STATES OF AMERICA

                 v.

          JOSE J. LOPEZ,
               a/k/a
       JOSE LOPEZ-JIMENEZ

           Jose J. Lopez,

                  Appellant
              ______

            No. 10-2415
              ______

   UNITED STATES OF AMERICA

                 v.

        PEDRO ESPARZA-DIAZ,
 also known as JUAN DIAZ OSEGERA,
 also known as JUAN ESPARZA-DIAZ,
    also known as JUAN TRUJILLO,
    also known as JUAN SANCHEZ

        Pedro Esparza-Diaz,

                  Appellant
              ______

            No. 10-2518
              ______

    UNITED STATES OF AMERICA

                v.

PEDRO MANUEL ARRELUCEA-ZAMUDIO,

                  Appellant
              ______

            No. 10-2519
              ______

    UNITED STATES OF AMERICA

                v.

   SILVESTRE BRITO-HERNANDEZ,

                  Appellant
              ______



                2
     On Appeal from the United States District Court
               for the District of New Jersey
   (D.C. Nos. 3-09-cr-00623-001, 1-09-cr-00449-001,
       1-08-cr-00136-001 and 1-08-cr-00711-001)
      District Judges: Honorable Garrett E. Brown,
Honorable Robert B. Kugler and Honorable Renee M. Bumb
                           ______

                Argued April 15, 2011
 Before: FISHER, JORDAN and COWEN, Circuit Judges.

                   (Filed: June 16, 2011 )

Lisa Van Hoeck
Office of Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, NJ 08609
       Counsel for Appellant,
       Jose J. Lopez

Lisa E. Lewis (Argued)
Office of Federal Public Defender
800-840 Cooper Street, Suite 350
Camden, NJ 08102
       Counsel for Appellant,
       Pedro Esparza-Diaz




                             3
Maggie F. Moy
Office of Federal Public Defender
800-840 Cooper Street, Suite 350
Camden, NJ 08102
       Counsel for Appellants,
       Pedro Manuel Arrelucea-Zamudio
       and Silvestre Brito-Hernandez

Jennifer H. Chin
Mark E. Coyne
Caroline A. Sadlowski (Argued)
Steven G. Sanders
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
       Counsel for Appellee
                           ______

                 OPINION OF THE COURT
                         ______

FISHER, Circuit Judge.

        In these consolidated appeals, Jose Lopez, Pedro
Esparza-Diaz, Pedro Arrelucea-Zamudio, and Silvestre Brito-
Hernandez (“Appellants”) challenge the constitutionality and
reasonableness of the sentences they received after pleading
guilty to illegal reentry, in violation of 8 U.S.C. § 1326(a) and




                               4
(b)(2).1 Appellants claim that their Fifth Amendment rights
were violated as a result of the Department of Justice‟s
(“DOJ”) implementation of “fast-track” early disposition
programs in select judicial districts. Section 5K3.1 of the
United States Sentencing Guidelines (“U.S.S.G.”) permits a
district court to depart not more than four levels pursuant to
an early disposition program authorized by the Attorney
General for the particular district. In districts where fast-track
programs are in place, qualifying defendants have the option
to plead guilty immediately, in exchange for the
Government‟s filing of a motion to depart pursuant to
U.S.S.G. § 5K3.1. None of the districts within the Third
Circuit have a fast-track program.

       Although Appellants acknowledge that fast-track
programs are defensible in districts with a high volume of
immigration cases, such as districts along the southwest
border of the United States, they challenge the reasoning
behind authorizing these programs in districts with a low
volume of immigration cases and in non-border districts.
Appellants maintain that fast-track programs have been
approved in an arbitrary manner, creating a disparity among
similarly situated defendants that violates their Fifth
Amendment right to equal protection.           Additionally,
       1
         By order of the Clerk on December 22, 2010, we
granted the Government‟s motion to consolidate these appeals
for purposes of disposition. In addressing the constitutional
argument, we refer to Appellants collectively. We describe
their individual arguments only insofar as necessary to
highlight the distinctions in their bases for appeal.


                                5
Appellants challenge the reasonableness of their sentences.
We determine that the DOJ‟s implementation of fast-track
programs is rationally related to several legitimate
governmental interests and does not violate Appellants‟ Fifth
Amendment rights. Further, the sentences imposed were
procedurally and substantively reasonable. We will affirm
the judgments of sentence entered by each District Court.

                      I. Background

       Fast-track programs were initially established in the
mid-1990s in federal judicial districts along the border
between the United States and Mexico – in Texas, New
Mexico, Arizona, and California. Faced with an influx of
immigration cases, local United States Attorneys sought to
manage their caseloads by offering shorter sentences, in the
form of a motion for downward departure or some other
benefit, in exchange for the defendant‟s agreement to plead
guilty immediately and waive appellate and other rights. See
generally Jane L. McClellan & Jon M. Sands, Federal
Sentencing Guidelines and the Policy Paradox of Early
Disposition Programs: A Primer on “Fast-Track” Sentences,
38 Ariz. St. L. J. 517 (2006).

       In 2003, Congress explicitly authorized downward
departures in fast-track programs when it passed the
Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act (“PROTECT Act”), Pub.
L. No. 108-21, 117 Stat. 650 (2003). The PROTECT Act
“was part of a more general effort by Congress to deal with a
perceived increase in the rate of departures from the
Sentencing Guidelines.” United States v. Arrelucea-Zamudio,

                             6


, 145 (3d Cir. 2009). As such, Congress directed
the Sentencing Commission to “promulgate . . . a policy
statement authorizing a downward departure of not 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. In
response, the Sentencing Commission created U.S.S.G.
§ 5K3.1, which states that, “[u]pon 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.”

       Following passage of the PROTECT Act, the Attorney
General issued a memorandum to all federal prosecutors
discussing the authorization and administration of fast-track
programs. See 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) (“Ashcroft
Memo”).2 While the Ashcroft Memo highlighted the need for
      2
         The Ashcroft Memo set forth the following
requirements for a district to obtain a fast-track program:

      (A)(1) the district confronts an exceptionally
      large number of a specific class of offenses
      within the district, and failure to handle such
      cases on an expedited or “fast-track” basis
      would significantly strain prosecutorial and
      judicial resources available in the district; or
      (2) the district confronts some other exceptional

                             7
fast-track programs in districts with a high volume of
immigration cases, it also made clear that “there may be some
other exceptional local circumstance, other than the high
incidence of a particular type of offense, that could
conceivably warrant „fast-track‟ treatment.” 

As of
December 28, 2009, the Attorney General has approved
twenty-five fast-track programs in seventeen judicial
districts.3 Fourteen fast-track programs are authorized for

      local circumstance with respect to a specific
      class of cases that justifies expedited disposition
      of such cases;
      (B) declination of such cases in favor of state
      prosecution is either unavailable or clearly
      unwarranted;
      (C) the specific class of cases consists of ones
      that are highly repetitive and present
      substantially similar fact scenarios; and
      (D) the cases do not involve an offense that has
      been designated by the Attorney General as a
      “crime of violence.”

16 Fed. Sent. R. at 134-35.
      3
         Fast-track programs have been implemented for a
variety of classes of cases, including illegal reentry,
transportation or harboring of aliens, alien smuggling, drug
offenses, aggravated identity theft, and identification
document fraud. See Memorandum from David W. Ogden,
Deputy Att‟y Gen., Dep‟t of Justice, to U.S. Attorneys (Dec.
28, 2009) (Supp. App. for Appellee United States at 22-23.).


                              8
illegal reentry cases.4 The District of New Jersey does not
have any kind of fast-track program.                  Appellants‟
constitutional argument concerns the disparity in treatment
between defendants in fast-track districts and defendants in
non-fast-track districts, insofar as defendants in fast-track
districts are eligible to obtain a downward departure as
authorized in U.S.S.G. § 5K3.1, whereas defendants in non-
fast-track districts are not afforded this opportunity.

A.     Jose Lopez

       Jose Lopez is a native and citizen of Mexico. In 1994,
he was convicted in New Jersey Superior Court of aggravated
arson, and was subsequently deported to Mexico. Thereafter,
Lopez illegally reentered the United States and was arrested
in New Jersey in 2009. Lopez pled guilty to illegal reentry, in
violation of 8 U.S.C. § 1326(a) and (b)(2).5 The Probation

       4
         These programs are implemented in the District of
Arizona; the Central, Eastern, and Northern Districts of
California; the District of Idaho; the District of Nebraska; the
District of New Mexico; the District of Oregon; the District
of Puerto Rico; the Southern District of Texas; the District of
Utah; the Eastern and Western Districts of Washington; and
the District of Wyoming.
       5
           8 U.S.C. § 1326(a) provides:

       (a) In general
       Subject to subsection (b) of this section, any
       alien who - -


                                9
      (1) has been denied admission, excluded,
      deported, or removed or has departed the United
      States while an order of exclusion, deportation,
      or removal is outstanding, and thereafter

      (2) enters, attempts to enter, or is at any time
      found in, the United States, unless (A) prior to
      his reembarkation at a place outside the United
      States or his application for admission from
      foreign contiguous territory, the Attorney
      General has expressly consented to such alien‟s
      reapplying for admission; or (B) with respect to
      an alien previously denied admission and
      removed, unless such alien shall establish that
      he was not required to obtain such advance
      consent under this chapter or any prior Act,

      shall be fined under Title 18, or imprisoned not
      more than 2 years, or both.

8 U.S.C. § 1326(b)(2) provides:

      (b) Criminal penalties for reentry of certain
      removed aliens notwithstanding subsection (a)
      of this section, in the case of any alien described
      in such subsection - -
      (2) whose removal was subsequent to a
      conviction for commission of an aggravated
      felony, such alien shall be fined under such title,
      imprisoned not more than 20 years, or both[.]


                              10
Office prepared a Presentence Investigation Report (“PSR”)
recommending a base offense level of eight, pursuant to
U.S.S.G. § 2L1.2(a), and a sixteen level increase, pursuant to
U.S.S.G. § 2L1.2(b)(1)(A) because Lopez was previously
deported after a conviction for a felony which is a crime of
violence, namely the 1994 arson. After subtracting three
levels for acceptance of responsibility, the PSR recommended
a total offense level of twenty-one and a criminal history
category of II, yielding a Guidelines range of forty-one to
fifty-one months‟ imprisonment.

        Lopez argued that the District Court should vary from
the Guidelines range because the availability of fast-track
programs in some judicial districts but not others creates an
unfair disparity. The District Court refused to do so, and
sentenced Lopez to forty-one months‟ imprisonment. Lopez
filed a timely notice of appeal.

B.    Pedro Esparza-Diaz

       Pedro Esparza-Diaz is a native and citizen of Mexico.
In 1995, he was convicted in California Superior Court of a
felony drug offense and sentenced to three years‟ probation
and three months‟ imprisonment. In 1999, Esparza-Diaz was
again convicted of drug possession and sentenced to three
years‟ probation and nine months‟ imprisonment. His
probation was subsequently revoked in 2000, and he was
sentenced to sixteen months‟ imprisonment for the 1995
conviction and two years‟ imprisonment on the 1999
conviction, to be served concurrently. He was deported to
Mexico in 2001. Years later, he illegally returned to the
United States where he was arrested in New Jersey in 2009

                             11
for traffic violations. Thereafter, Esparza-Diaz pled guilty to
illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2).

        The PSR recommended a base offense level of eight,
pursuant to U.S.S.G. § 2L1.2(a), plus a sixteen-level increase
pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because Esparza-Diaz
was previously deported after he was convicted of a drug
trafficking offense for which the sentence imposed exceeded
thirteen months‟ imprisonment.6 As a result, the total offense
level was twenty-one, after a three-level adjustment for
acceptance of responsibility. With a criminal history category
of IV, the PSR recommended a Guidelines range of fifty-
seven to seventy-one months‟ imprisonment.

       At sentencing, Esparza-Diaz argued that the District
Court should vary from the Guidelines range based on the
absence of a fast-track program in the District of New Jersey.
The District Court declined to exercise that discretion and
also refused to vary based on the time that Esparza-Diaz spent
in custody awaiting indictment. Esparza-Diaz was sentenced
to sixty months‟ imprisonment and filed a timely notice of
appeal.




       6
        See U.S.S.G. § 2L1.2 cmt. n.1(B)(vii) (“The length of
the sentence of imprisonment includes any term of
imprisonment given upon revocation of probation, parole, or
supervised release.”).


                              12
C.     Pedro Arrelucea-Zamudio

       Pedro Arrelucea-Zamudio is a native and citizen of
Peru. In 1991, he was convicted in New Jersey Superior
Court of drug possession and sentenced to twelve years‟
imprisonment. In 1995, Arrelucea-Zamudio was deported to
Peru. Years later, he illegally reentered the United States. In
2006, he was convicted in New Jersey Superior Court of
possession of cocaine with intent to distribute. After serving
a portion of the prison sentence, he was charged with and
pled guilty to illegal reentry, in violation of 8 U.S.C.
§ 1326(a) and (b)(2).

        The PSR recommended a base offense level of eight,
in accordance with U.S.S.G. § 2L1.2(a), and a sixteen-level
increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because
Arrelucea-Zamudio was previously deported after being
convicted of a drug trafficking offense for which the sentence
imposed exceeded thirteen months‟ imprisonment. With a
three-level adjustment for acceptance of responsibility, the
total offense level was twenty-one and the criminal history
category was III, resulting in a Guidelines range of forty-six
to fifty-seven months‟ imprisonment.

       At sentencing, Arrelucea-Zamudio requested a
variance on the grounds that the absence of a fast-track
program in the District of New Jersey caused a disparity
among similarly situated defendants. The District Court
rejected this argument, believing that our decision in United
States v. Vargas, 

(3d Cir. 2007), prohibited
consideration of the fast-track disparity. The District Court
imposed a sentence of forty-eight months‟ imprisonment.

                              13
       On appeal, we vacated Arrelucea-Zamudio‟s sentence
because the District Court misapprehended its authority to
consider the fast-track disparity. See 

(holding that after the Supreme Court‟s decision
in Kimbrough v. United States, 

(2007), a district
court has discretion to consider the absence of a fast-track
sentencing option and vary on that basis). On remand,
Arrelucea-Zamudio        argued     that   the    sixteen-level
enhancement for illegal reentry set forth at U.S.S.G.
§ 2L1.2(b)(1)(A) is inherently unreasonable. Additionally, he
renewed his argument that the District Court should vary on
the basis of the fast-track disparity. The District Court
considered the arguments relative to § 2L1.2 and the fast-
track disparity, but declined to vary on either basis. The
District Court imposed a sentence of forty-six months‟
imprisonment and Arrelucea-Zamudio filed a timely notice of
appeal.

D.     Silvestre Brito-Hernandez

        Silvestre Brito-Hernandez is a native and citizen of the
Dominican Republic. He entered the United States as a
lawful permanent resident in 1990. In 1999, he was
convicted of possession of cocaine with intent to distribute,
and deported to the Dominican Republic. Brito-Hernandez
illegally reentered the United States in 2003. Shortly
thereafter, he was arrested, pled guilty, and was sentenced to
five years‟ imprisonment for drug possession. While serving
his state prison sentence, he was indicted and pled guilty to
illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2).



                              14
       The PSR recommended a base offense level of eight,
as set forth in U.S.S.G. § 2L1.2(a), and a sixteen-level
increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because
Brito-Hernandez was previously deported after being
convicted for a felony drug trafficking offense for which the
sentence imposed exceeded thirteen months‟ imprisonment.
With a three-level adjustment for acceptance of
responsibility, the total offense level was twenty-one and the
criminal history category was III, generating a Guidelines
range of forty-six to fifty-seven months‟ imprisonment.

       During the sentencing hearing, Brito-Hernandez
requested a variance on the basis that the sixteen-level
enhancement to the offense level set forth at U.S.S.G.
§ 2L1.2(b)(1)(A) was unreasonable and that the fast-track
system created an unfair sentencing disparity between
similarly situated defendants. The District Court rejected
these arguments and sentenced him to forty-six months‟
imprisonment.

       On January 5, 2010, we summarily vacated Brito-
Hernandez‟s sentenced, as a result of our ruling in Arrelucea-
Zamudio, because, as in that case, the District Court did not
believe it had discretion to vary based on the fast-track
disparity argument. On remand, Brito-Hernandez renewed
his arguments with respect to U.S.S.G. § 2L1.2 and the fast-
track disparity. The District Court declined to exercise its
discretion to vary, and imposed a sentence of forty-six
months‟ imprisonment. Brito-Hernandez filed a timely notice
of appeal.



                             15
                   II. Standard of Review

       While we generally review constitutional claims de
novo, see United States v. Gordon, 

, 546 (3d Cir.
2002), constitutional challenges not raised before the district
court are subject to plain error review. See Fed. R. Crim. P.
52(b); see also United States v. Olano, 

, 731
(1993). We review sentences for procedural and substantive
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 

, 51 (2007). In addition, we
“review factual findings relevant to the Guidelines for clear
error.” United States v. Grier, 

, 570 (3d Cir.
2007) (en banc).7


       7
        The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742.

       The government claims that Appellants lack standing
to challenge the constitutionality of U.S.S.G. § 5K3.1, as
implemented by the DOJ and directed by Congress in the
PROTECT Act. We must resolve this question at the outset
because Appellants‟ ability to raise this constitutional
challenge implicates our jurisdiction under Article III of the
Constitution. See Steel Co. v. Citizens for a Better Env’t, 

, 97-98 (1998). “A party has standing to challenge the
constitutionality of a statute only insofar as it has an adverse
impact on his own rights.” Count Court of Ulster County,
N.Y. v. Allen, 

, 154-55 (1979). Appellants must
demonstrate that they “have suffered an injury in fact” that is
“fairly trace[ab]le to the challenged action of the defendant,”

                              16
                        III. Discussion


and that it is likely “that the injury will be redressed by a
favorable decision.” Lujan v. Defenders of Wildlife, 

, 560-61 (1992) (internal quotation marks omitted).

        Appellants have alleged that they received sentences
without the benefit of a fast-track departure, thereby
subjecting them to a sentencing process that was implemented
in an arbitrary manner and contrary to their Fifth Amendment
rights. This injury is concrete and actual, as Appellants have
already been sentenced. See Chapman v. United States, 

, 465 (1991) (“[T]he court may impose, whatever
punishment is authorized by statute . . . so long as the penalty
is not based on an arbitrary distinction that would violate the
Due Process Clause of the Fifth Amendment.” (internal
citations omitted)); see also Ne. Fl. Chapter of the Assoc.
Gen. Contractors of Am. v. City of Jacksonville, 

, 666 (1993) (“The „injury in fact‟ in an equal protection
case . . . is the denial of equal treatment resulting from the
imposition of the barrier, not the ultimate inability to obtain
the benefit.”). Second, this injury is “fairly trace[ab]le” to the
DOJ‟s implementation of fast-track programs in some
districts but not others. 

. Third, the
injury is redressable because a favorable ruling that the
operation of the fast-track program is unconstitutional would
essentially require a district court to depart four levels, as
done in fast-track districts, thereby eliminating the alleged
unfairness. Because Appellants have standing, we proceed
with our analysis of their Fifth Amendment claim.


                               17
A.    Constitutionality of the DOJ’s Implementation of
U.S.S.G. § 5K3.1

        Appellants assert that the fast-track program “produces
a „wholly arbitrary‟ sentencing discrepancy and violates
[their] Fifth Amendment right to be free from arbitrary
sentencing practices.” (Br. of Appellant Jose Lopez at 14.)
Because the distinction in treatment between defendants in
fast-track and non-fast-track judicial districts does not
implicate a suspect class, nor burden a fundamental right, we
determine – and Appellants concede (id. at 11) – that rational
basis review is appropriate here.8 “If a statute neither burdens
a fundamental right nor targets a suspect class, it does not
violate equal protection so long as it bears a rational
relationship to some legitimate end.” Doe v. Pa. Bd. of
Probation & Parole, 

, 107 (3d Cir. 2008). Under
rational basis review, a classification will be upheld “if there
is a rational relationship between the disparity of treatment
and some legitimate governmental purpose.” Heller v. Doe,

, 320 (1993). The party challenging the
       8
          Although the Fifth Amendment by its own terms
does not reference equal protection, the Supreme Court has
interpreted it to include an equal protection element. See
Bolling v. Sharpe, 

, 499 (1954). Because the
Supreme Court‟s analysis of Fifth Amendment equal
protection claims has been identical to equal protection
claims under the Fourteenth Amendment, we proceed
accordingly here. See Buckley v. Valeo, 

, 93
(1976); Weinberger v. Wiesenfeld, 

, 638 n.2
(1975).


                              18
classification bears the burden to negate “every conceivable
basis which might support it[.]” 

argument,
Appellants conceded that they did not raise this constitutional
claim before the District Court. Thus, we apply plain error
review. See 

. “Plain error exists only
when (1) an error was committed (2) that was plain, and
(3) that affected the defendant‟s substantial rights.” United
States v. Lessner, 

, 192 (3d Cir. 2007).

        Every court of appeals to have considered the issue has
upheld the DOJ‟s implementation of fast-track programs on a
district-by-district basis under rational basis review. See
United States v. Rodriguez, 

, 527 (5th Cir.
2008); United States v. Lopez-Velasquez, 

, 808
(5th Cir. 2008); United States v. Llanos-Agostadero, 

, 1199 (11th Cir. 2007); United States v. Andujar-Arias,

, 749 (1st Cir. 2007), abrogated on other
grounds by United States v. Rodriguez, 

(1st Cir.
2008); United States v. Marcial-Santiago, 

, 719
(9th Cir. 2006); United States v. Campos-Diaz, 

, 1280 (11th Cir. 2006); United States v. Melendez-
Torres, 

, 53 (1st Cir. 2005), abrogated on other
grounds by United States v. Anonymous Defendant, 

(1st Cir. 2010).

        These courts of appeals have identified a number of
rational bases for the difference in treatment of defendants in
fast-track and non-fast-track districts. In Marcial-Santiago,
the Ninth Circuit upheld the fast-track program against an
equal protection challenge, ruling that “the government has a
legitimate interest in conserving prosecutorial and judicial
resources in districts with large numbers of immigration

                              19
cases, and fast-track programs are rationally related to that

. Similarly, the Fifth Circuit
determined that “[t]he current structure of the fast-track
program is rationally related to, among others, the goals of
promoting judicial efficiency, preserving prosecutorial
discretion, and limiting downward departures overall.”

. The Eleventh Circuit has
reached the same conclusion. See 

(“The fast-track program is rationally related to the
legitimate government interest of conserving prosecutorial
and judicial resources and easing congestion in judicial
districts with a high volume of immigration cases.”).
Decisions of the First Circuit are in accord. See Andujar-

(“[W]e find that [fast-track] programs
have not been implemented in a manner that is so attenuated
as to render the [Congressionally established] distinction
arbitrary or irrational.” (internal quotation marks omitted));

(noting that prosecutorial
discretion and resource allocation constitute “a reasonably
conceivable set of facts that could provide a rational basis for
the classification” (internal quotation marks omitted)).

       Appellants concede that there is a rational basis for
establishing fast-track programs in judicial districts with a
high volume of immigration cases. (Br. of Appellant Jose
Lopez at 10.) The crux of their claim, however, targets the
implementation of fast-track programs in districts with a low
volume of immigration cases – namely, in the Western
District of Washington and the District of Nebraska.
Appellants rely on the volume of immigration-related cases
per district and the number of immigration-related cases per


                              20
Assistant United States Attorney to argue that the DOJ‟s
approval of fast-track programs lacks a rational basis.
Specifically, Appellants point to statistics demonstrating that
immigration offenses compose only 12.3% and 13.2% of the
criminal docket in the District of Nebraska and the Western
District of Washington, respectively. (Id. at 11.) Moreover,
they highlight that immigration cases make up 26.6% of the
criminal docket in the District of Nevada, yet that district has
no fast-track program. (Id. at 12.) Appellants argue that the
fact that the District of Nebraska and the Western District of
Washington have fast-track programs, while no such program
is in place in the District of Nevada, demonstrates that the
DOJ has implemented fast-track programs in an
unconstitutional manner. We are not persuaded.

        The Ashcroft Memo makes clear that the presence of a
high volume of immigration cases is not the only reason to
authorize a fast-track program. Rather, fast-track programs
may be sanctioned when “the district confronts some other
exceptional local circumstance with respect to a specific class
of cases that justifies expedited disposition of such cases.” 16
Fed. Sent. R. at 134. Even where a district does not confront
a high volume of immigration cases, the Ashcroft Memo
states that this “does not foreclose the possibility that there
may be some other exceptional local circumstances, other
than the high incidence of a particular type of offense, that
could conceivably warrant „fast-track‟ treatment.” 

end, we determine that the endorsement of fast-track
programs in districts with a low volume of immigration cases
is rationally related to, among other things, the purposes of
efficiently prosecuting illegal reentry cases and dealing with


                              21
demands regarding allocation of prosecutorial resources. If a
particular district is ill-equipped to handle illegal reentry
prosecutions due to, for example, an influx of cases or a
recurring type of case, a fast-track program will enable that
district to manage its caseload efficiently. The fact that some
districts with a high volume of immigration cases do not have
fast-track programs does not mean that the program is
operated in an unconstitutional manner. Those districts, such
as the District of Nevada, may be better prepared to prosecute
immigration cases and have no need for such a program. The
DOJ‟s implementation of the fast-track program is rationally
related to the objective of managing shortages in
prosecutorial resources and enforcing the immigration laws,
not only dealing with the challenge of a large volume of
immigration cases.

        The First Circuit reached the same conclusion in

. There, the defendant
argued that the existence of fast-track programs in districts
such as the Western District of Washington and the District of
Nebraska where immigration cases account for a low
percentage of the caseload demonstrated that the programs
were implemented in an unconstitutional manner. The court
refused to strike down the program based on statistics
regarding the number of cases alone. Notably, the court
reasoned that “[w]hen Congress authorized the Attorney
General to approve fast-track programs, it did not restrict the
criteria for such programs to the mere proportion of each
district‟s caseload” but instead “allowed the Attorney General
to evaluate such factors as the number and type of
immigration cases encountered by each district and the


                              22
quality and variety of resources each district could marshal in
response.” 

We agree. Evaluating only the
percentage of immigration cases “obscures the fact that
different types of cases may require different types and
amounts of resources.” 

because “judgments
regarding resource allocation can rarely be reduced to a single
variable or calculation.” 

Appellants‟ statistical
references do not establish that fast-track programs are
administered unlawfully.

        Appellants seize on language from our decision in
Arrelucea-Zamudio where we stated that “it does not appear
to be clear to the [Sentencing] Commission (based on its
limited statistical analysis), nor is it evident to us, why some
districts have fast-track programs while others do 

. Thus, Appellants claim that “[a]n unidentifiable
basis for a sentencing discrepancy is not a rational one.” (Br.
of Appellant Pedro Arrelucea-Zamudio at 24.) Appellant‟s
reliance on Arrelucea-Zamudio is misplaced.9 In Arrelucea-
Zamudio, we held that a district court may consider the fast-
       9
          Further, this argument inappropriately attempts to
place the burden of proof on the government. See Heller v
Doe, 

, 320 (1993) (“[T]he burden is on the one
attacking the legislative arrangement to negative every
conceivable basis which might support it” (internal quotation
marks and citation omitted).); see also United States v. Ruiz-
Chairz, 

, 1092 (9th Cir. 2007) (“[T]he
government shoulders no burden to proffer a basis for a
distinction that Congress and the Sentencing Commission
have made.”).


                              23
track disparity and exercise its discretion to vary from the
Guidelines range when sentencing a defendant for illegal

. The case did not involve a
constitutional challenge to the fast-track program, nor did we
hold that the DOJ‟s implementation of U.S.S.G. § 5K3.1
lacked a rational basis. Even if fast-track programs are not
authorized in an easily identifiable manner, it does not render
the DOJ‟s operation of such programs unconstitutional. To
the contrary, our inquiry is limited to evaluating whether
“there is any conceivable state of facts that could provide a
rational basis for the classification.” 

(emphasis added). As we have already noted, the DOJ‟s
authorization of fast-track programs is rationally related to the
permissible goals of efficiently enforcing the immigration
laws and allocating prosecutorial resources where they are
most needed.

        There are several justifiable reasons for allowing the
United States Attorney General and the United States
Attorney for each judicial district to evaluate the distribution
of prosecutorial resources in enforcing the immigration laws.
Appellants fall far short of their burden to demonstrate that
there is no conceivable basis for the DOJ‟s endorsement of
fast-track programs in some districts but not others. Having
identified no constitutional error, Appellants cannot
demonstrate that the District Courts committed plain error by
not striking down Congress‟s directive regarding
implementation of fast-track programs by the DOJ. See
United States v. Castro, 

, 1253 (11th Cir. 2006)
(noting that defendant could not establish plain error when no
court “has held that the limited availability of the fast-track


                               24
departure violates equal protection”). Thus, Appellants‟ Fifth
Amendment argument lacks merit.

B.     Reasonableness of Sentences

        Having determined that Appellants‟ Fifth Amendment
challenge to the DOJ‟s implementation of U.S.S.G. § 5K3.1
provides no basis for relief, we turn to Appellants‟ arguments
regarding the reasonableness of the sentences they received.
Our framework for reviewing sentences is well-established.
“First, we determine whether the sentencing court correctly
calculated the Guidelines range.” United States v. Fisher,

, 308 (3d Cir. 2007). “Next, we determine
whether the trial court considered the § 3553(a) factors and
any sentencing grounds properly raised by the parties which
have recognized legal merit and factual support in the
record.” 

marks omitted). Then, “we
ascertain whether those factors were reasonably applied to the
circumstances of the case.” 

marks
omitted). After confirming that the district court followed the
proper procedural requirements, “we review the resulting
sentence to ensure that it is substantively reasonable.” 

review each Appellant‟s sentence individually.

       1.     Jose Lopez

        Lopez argues that the District Court committed
procedural error by refusing to give meaningful consideration
to the fast-track disparity. (Br. of Appellant Jose Lopez at 14-
15.) Specifically, Lopez insists that the District Court
“simply declined to accept the validity of the fast-track
disparity.” (Id. at 17.) We disagree.

                              25
        In Arrelucea-Zamudio, we held 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 

. “In sentencing a
defendant for illegal reentry in a non-fast-track district . . . a
sentencing court „must make an individualized assessment
based on the facts presented,‟ and „judge their import under
§ 3553(a).‟” 

(quoting 

). We
did not conclude that a district court must consider the fast-
track disparity and vary on that basis. Rather, we determined
that if a district court chooses to exercise its discretion
because it has a policy disagreement with U.S.S.G. § 5K3.1,
then it must evaluate the fast-track disparity with regard to the
totality of the § 3553(a) factors to ensure that the resulting
sentence will be reasonable. See 

we emphasized
that our previous holding in United States v. Vargas, 

, 99 (3d Cir. 2007), “that it is not an abuse of a sentencing
judge‟s discretion to decline to vary on the basis of the fast-
track disparity – remains viable after Kimbrough.” 

The procedural error in Arrelucea-Zamudio was the district
court‟s mistaken belief that it did not have discretion to vary
based on the fast-track disparity. See 

That is not
what occurred here.

       The District Court correctly calculated a Guidelines
range of forty-one to fifty-one months‟ imprisonment. At
sentencing, the District Court noted:

       [L]ooking at the arguments that are made by the
       defense which I referred to before, starting out

                               26
       with the fact that some jurisdictions have a fast-
       track program and that New Jersey does not, I
       do not think that is an appropriate basis to
       exercise my discretion under 3553[a] or
       otherwise. Indeed, to do that would be to take
       what seems to be a rather unique program and
       make it nationwide. We have an obligation
       really to avoid unwarranted disparities. I think
       we‟d be creating unwarranted disparities . . . . I
       do not think that the variance on the basis of a
       lack of a fast-track program would be an
       appropriate exercise of discretion here[.]

(App. of Appellant Jose Lopez at 38-39.) The District Court
acknowledged that it could vary based on the fast-track
disparity when it stated that it would not “exercise [its]
discretion,” (id.), on that basis. In doing so, it explained why
it believed a variance was inappropriate, even though it was
permitted, thereby meaningfully considering Lopez‟s request.
Lopez‟s argument on this point lacks merit.

      Next, Lopez asserts that his sentence is procedurally
and substantively unreasonable because the District Court
ignored the need to “impose a sentence sufficient, but not




                              27
greater than necessary,” as stated in 18 U.S.C. § 3553(a).10
The record belies this contention. The District Court
specifically noted that “the sentence at the bottom of the
advisory guideline range is reasonable and no greater than
necessary to comply with the statutory purpose. We have a
serious offense that needs to be dealt with seriously.” (Id. at
41.) The District Court explicitly found that a Guidelines
range sentence was necessary, taking into consideration
Lopez‟s background. We cannot say that “no reasonable
sentencing court would have imposed the same sentence on
that particular defendant for the reasons the district court
provided.” United States v. Tomko, 

, 568 (3d
Cir. 2009) (en banc).        The District Court reasonably
concluded that a sufficient sentence in a fast-track district




      10
            In challenging the substantive reasonableness of
their sentences, each Appellant argues that his sentence is
unreasonable because the implementation of fast-track
programs in various judicial districts violates his Fifth
Amendment right to be free from arbitrary sentencing
practices.       This argument recapitulates Appellants‟
unsuccessful constitutional argument, and we do not address
it further.


                              28
would not be sufficient in Lopez‟s case.11 Thus, we
determine that a sentence of forty-one months‟ imprisonment
is reasonable.

       2.     Pedro Esparza-Diaz

       Esparza-Diaz asserts that the District Court committed
procedural error in relying on clearly erroneous factual
findings in denying his request for a variance to account for
the time he spent in custody awaiting indictment for illegal
reentry. “A district court commits significant procedural
error – and thus abuses its discretion – when . . . it bases its

       11
          To the extent Lopez argues that because “the district
court imposed a Guidelines sentence in a case
indistinguishable from the thousands across the country
which typically qualify for fast-track departures[,] . . . this
greater sentence . . . violat[es] parsimony” (Br. of Appellant
Jose Lopez at 21), we note that we specifically recognized in
Arrelucea-Zamudio that “a district court is under no
obligation to impose a sentence below the applicable
Guidelines range solely on the basis of the [fast-track

(internal quotation marks and
citation omitted); see also United States v. Llanos-
Agostadero, 

, 1199 (11th Cir. 2007) (“[W]e
cannot say that the sentences received by defendants in
districts without fast-track programs are „greater than
necessary‟ to achieve the purposes of § 3553(a)(2) solely
because similarly-situated defendants in districts with fast-
track programs are eligible to receive lesser sentences.”
(emphasis in original)).


                              29
calculation of the advisory Guidelines range on a clearly
erroneous finding of fact[.]” United States v. Starnes, 

, 215 (3d Cir. 2009). In that regard, “[a] [factual]
finding is clearly erroneous when although there is evidence
to support it, the reviewing body on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.” 

marks omitted).

       Pursuant to 18 U.S.C. § 3585(b), “[a] defendant shall
be given credit toward the service of a term of imprisonment
for any time he has spent in official detention prior to the date
the sentence commences[.]” The definition of “official
detention” is provided in Bureau of Prisons Program
Statement 5880.28:

       Official detention does not include time spent in
       the custody of the U.S. Immigration and
       Naturalization Service (INS) under the
       provisions of 8 U.S.C. § 1252 pending a final
       determination of deportability. An inmate
       being held by INS being a civil deportation
       proceeding is not being held in “official
       detention” pending criminal charges.

BOP P.S. 5880.28, 1-15A. Esparza-Diaz was arrested for
traffic violations on February 12, 2009. An agent from
Immigration and Customs Enforcement (“ICE”) interviewed
him on February 20, 2009. On February 24, 2009, the ICE
Agent returned for another interview with Esparza-Diaz. In
the Record of Sworn Statement completed on that day, the
ICE Agent described the matter as “In the case of: Reentry
Prosecution 8 USC 1326 or 1325,” in other words, a criminal

                               30
illegal reentry prosecution.   Esparza-Diaz was indicted on
June 16, 2009.

       Before the District Court, Esparza-Diaz requested a
variance on the grounds that he should be given credit for the
time he spent in ICE custody from February 24 to June 16,
2009 because he was in “official detention” pending an illegal
reentry prosecution. The District Court declined to formally
grant the variance, finding that the Record of Sworn
Statement did not make certain that Esparza-Diaz would be
prosecuted for illegal reentry. The District Court noted that
while the individual ICE Agent‟s intent may have been clear,
any criminal prosecution would have to be approved by the
United States Attorney‟s Office. Although the District Court
did not grant the request, it did state that it was “not going to
give him the maximum under the guideline top of the range”
and that “defense counsel‟s arguments do have some merit,
particularly the fact that he‟s been in custody for months
before this prosecution began.” (App. of Appellant Pedro
Esparza-Diaz at 86.)

        The District Court‟s finding that Esparza-Diaz was not
in “official detention” during this time period was not clearly
erroneous. Aside from the ICE Agent‟s statement, there is no
record from the government to indicate that a definitive
decision regarding criminal prosecution was made. Because
the record does not leave us with a “definite and firm
conviction that a mistake has been committed,” 

, there is no clear error. Moreover, the record
reflects that the District Court did give some consideration to
Esparza-Diaz‟s argument because it sentenced him at the
bottom of the Guidelines range. The District Court correctly

                               31
calculated a Guidelines range of fifty-seven to seventy-one
months‟ imprisonment, and did not commit procedural error.

       Like Lopez, Esparza-Diaz contends that his sentence is
substantively unreasonable because it violates the provision in
18 U.S.C. § 3553(a) instructing courts to impose a sentence
sufficient but not greater than necessary. At sentencing, the
District Court expressed the concern that a below-Guidelines
sentence would not be sufficient punishment after evaluating
the specific characteristics of Esparza-Diaz. Significantly, the
District Court noted that it had “the authority under the law to
vary downward because of [the fast-track disparity], but I
choose not to because of his criminal record and history.”
(App. of Appellant Pedro Esparza-Diaz at 85.) Thus, the
District Court exercised its discretion to impose a sentence it
believed was “sufficient, but not greater than necessary.” 18
U.S.C. § 3553(a). Because “the record as a whole reflects
rational and meaningful consideration of the factors
enumerated in 18 U.S.C. § 3553(a),” 

,
we determine that Esparza-Diaz‟s sentence was reasonable.12

       3.       Pedro Arrelucea-Zamudio & Silvestre Brito-
                Hernandez13

      Both Arrelucea-Zamudio and Brito-Hernandez
maintain that their sentences are substantively unreasonable

       12
            See also supra n.11.
       13
          Arrelucea-Zamudio and Brito-Hernandez do not
challenge the procedural reasonableness of their sentences.


                               32
because the District Court relied on the sixteen-level
enhancement to the offense level set forth at U.S.S.G.
§ 2L1.2(b)(1)(A) in calculating their Guidelines ranges.14
Specifically, they claim that § 2L1.2(b)(1)(A) was enacted
with no apparent justification and results in Guidelines ranges
that are disproportionate to the seriousness of the offense of
illegal reentry. Thus, they assert, the District Court abused its
discretion in relying on it.

      We addressed a similar argument in United States v.
Lopez-Reyes, 

(3d Cir. 2009). In that case,
Lopez-Reyes pled guilty to illegal reentry after previously
being convicted of a crime of violence. After the district

       14
         U.S.S.G. § 2L1.2 states, in relevant part:
       (a) Base Offense Level: 8
       (b) Specific Offense Characteristic
              (1) Apply the Greatest:
              If the defendant was previously deported,
              or unlawfully remained in the United
              States, after –
              (A) a conviction for a felony that is (i) a
              drug trafficking offense for which the
              sentence imposed exceeded 13 months;
              (ii) a crime of violence; (iii) a firearms
              offense; (iv) a       child pornography
              offense; (v) a national security or
              terrorism offense; (vi) a human
              trafficking offense; or (vii) an alien
              smuggling offense, increase by 16
              levels[.]

                               33
court calculated his offense level pursuant to
§ 2L1.2(b)(1)(A), it imposed a within-Guidelines range
sentence. On appeal, Lopes-Reyes argued, inter alia, that the
sixteen-level enhancement in § 2L1.2(b)(1)(A) is
unreasonable and that the district court failed to
independently analyze the potential problems with the
Guideline. In determining that the district court did not abuse
its discretion in applying § 2L1.2(b)(1)(A), we reiterated that
“Kimbrough does not require a district court to reject a
particular Guidelines range where the court does not, in fact,
have a disagreement with the Guideline at issue.” 

After concluding that the district court engaged in an
appropriate exercise of discretion with regard to the § 3553(a)
factors, we emphasized that “[t]he applicable Guidelines
range here is not rendered unreasonable simply because
§ 2L1.2 establishes a base offense level for a nonviolent
offense that is equal or greater than that of certain violent
offenses. Congress „has the power to define a crime and set
its punishments.‟” 

States v. MacEwan,

, 252 (3d Cir. 2006)).

       The reasoning of Lopez-Reyes applies with equal force
here. Both District Courts were aware of their authority to
disregard § 2L1.2(b)(1)(A) on policy grounds after
Kimbrough. (App. of Appellant Pedro Arrelucea-Zamudio at
183; App. of Appellant Silvestre Brito-Hernandez at 143-44.)
But, neither District Court disagreed with the Guideline and
declined to exercise discretion on that basis. Because the
District Courts were not required to disregard
§ 2L1.2(b)(1)(A) when they did not disagree with it, see

, our inquiry is limited to


                              34
whether the sentences imposed “fall[] within the broad range
of possible sentences that can be considered reasonable in
light of the § 3553(a) factors.” United States v. Wise, 

, 218 (3d Cir. 2008).

       With respect to Arrelucea-Zamudio, the District Court
thoroughly considered the § 3553(a) factors. The District
Court remarked on Arrelucea-Zamudio‟s history of drug
convictions, the need for deterrence, and the goal of avoiding
unwarranted sentencing disparities.         In doing so, it
specifically reflected on the individual characteristics of
Arrelucea-Zamudio, and reached a decision that “was
premised upon appropriate and judicious consideration of the
relevant factors.”    

(internal
quotation marks omitted). We determine that the District
Court imposed a reasonable sentence of forty-six months‟
imprisonment.

       As to Brito-Hernandez, the District Court likewise did
not abuse its discretion. The record reflects that the District
Court considered the seriousness of the offense and the need
to promote deterrence, in light of the fact that Brito-
Hernandez had illegally reentered the United States on
several occasions and accumulated multiple drug convictions.
Because “the record as a whole reflects rational and
meaningful consideration of the factors enumerated in 18
U.S.C. § 3553(a),” 

, we determine that
a sentence of forty-six months‟ imprisonment was reasonable.




                              35
                            IV.

       We hold that the current structure of the fast-track
program is rationally related to, among others, the goals of
allocating prosecutorial resources and enforcing the
immigration laws. Further, we determine that the sentences
Appellants received after pleading guilty to illegal reentry
were reasonable. For the foregoing reasons, we will affirm
the judgments of sentence entered by each District Court.




                            36