Filed: May 22, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 5-22-2009 USA v. Omar Reina Precedential or Non-Precedential: Non-Precedential Docket No. 08-2417 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Omar Reina" (2009). 2009 Decisions. Paper 1329. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1329 This decision is brought to you for free and open access by the Opinions of the Uni
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 5-22-2009 USA v. Omar Reina Precedential or Non-Precedential: Non-Precedential Docket No. 08-2417 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Omar Reina" (2009). 2009 Decisions. Paper 1329. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1329 This decision is brought to you for free and open access by the Opinions of the Unit..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-22-2009
USA v. Omar Reina
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2417
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Omar Reina" (2009). 2009 Decisions. Paper 1329.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1329
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2417
___________
UNITED STATES OF AMERICA
v.
OMAR REINA, a/k/a Omar Reina Jaramillo, a/k/a Piasa,
a/k/a Gordo, a/k/a Fernando Diaz,
Omar Reina,
Appellant
______________
Appeal from the United States
District Court for the Eastern District of Pennsylvania
(No. 08-cr-00030)
District Court Judge: Honorable Stewart Dalzell
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 20, 2009
___________
Before: RENDELL and GARTH, Circuit Judges, and
VANASKIE, District Judge *
(Opinion Filed: May 22, 2009)
___________
OPINION
*
The Honorable Thomas I. Vanaskie, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
___________
GARTH, Circuit Judge:
Omar Reina (“Reina”) appeals the judgment of sentence entered by the District
Court on May 9, 2008. Reina, a native of Colombia, was arrested on October 23, 2007, in
Philadelphia for conspiracy to distribute, and possession with intent to distribute more
than 100 grams of heroin. Reina had been deported on June 1, 2000, after serving a 60-
month sentence for distributing cocaine and a concurrent 10-year sentence in New Jersey
for possession of cocaine with intent to distribute.
Reina was indicted in the Eastern District of Pennsylvania for violation of 8 U.S.C.
§§ 1326(a) and (b)(2) for illegal reentry into the United States after deportation.1 Reina
pleaded guilty on February 5, 2008.
Reina’s base offense level was 8; the District Court imposed a 16-level increase
(U.S.S.G. § 2L1.2(b)(1)(A)) because Reina “was deported . . . after a conviction for a . . .
drug trafficking offense for which the sentence imposed exceeded 13 months.” After a 3-
point reduction for acceptance of responsibility (U.S.S.G. § 3E1.1), his offense level was
21. With a criminal history category of V, Reina’s Guidelines range was 70-87 months.
Reina’s counsel argued that the 16-level enhancement based on a prior aggravated
1
On May 7, 2008, Reina was indicted for distribution of heroin in the United
States District Court for the Eastern District of Pennsylvania; he pleaded guilty. He was
sentenced on November 12, 2008, to 151 months’ imprisonment to run concurrently with
the sentence imposed in this case. Reina has appealed his drug-related sentence as well.
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felony violated Reina’s Sixth Amendment rights. The District Court rejected this
argument based on settled Supreme Court and Third Circuit case law.
Defense counsel also argued that a sentence within the 70-87 month Guidelines
range would create unwarranted sentencing disparities under 18 U.S.C. § 3553(a)(6)
because the Eastern District of Pennsylvania lacked a “fast-track” sentencing program,2
and thus Reina would be subject to a higher sentence than a defendant in a jurisdiction
that had such a program. Defense counsel asked the court to grant a variance.
The District Court denied the request, finding that applicable case law counseled
against such a variance, and that Reina would not have been eligible for such relief
anyway. The District Court considered the Section 3553(a) factors and, on May 9, 2008,
sentenced Reina to 70 months’ imprisonment and 3 years of supervised.
I.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our review
of procedural errors in sentencing includes a court’s improper calculation of the
2
Fast-track programs “allow defendants who violate [8 U.S.C.] § 1326 to receive
lower sentences in exchange for waiving certain rights, including indictment by grand
jury.” United States v. Vargas, 477 F.3d 94, 98 n.8 (3d Cir. 2007) (citing United States
v. Mejia,
461 F.3d 158, 160 (2d Cir. 2006)). In 2003 Congress codified its approval of
these programs in Pub. L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003), and
the United States Sentencing Commission accordingly adopted U.S.S.G. § 5K3.1,
“which provides 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.’”
Mejia, 461 F.3d at 161.
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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).
We review the District Court’s sentence for an abuse of discretion, giving alleged factual
errors a “clearly erroneous” review but reviewing “purely legal” errors, such as
misinterpretations of the Guidelines, de novo.
Id.
II.
Reina argues that jurisdictions which host “fast-track” programs often give illegal
re-entry defendants much shorter sentences, whereas defendants like Reina in non-fast-
track jurisdictions are disadvantaged because they are automatically subject to a higher
offense level. Reina argues that these differences in sentences across geographic
boundaries are “unwarranted sentence disparities” under 18 U.S.C. § 3553(a)(6).
Reina focuses his argument on the interplay of two cases: our decision in United
States v. Vargas, 477 F.3d 94 (3d Cir. 2007), and the Supreme Court’s decision in
Kimbrough v. United States,
128 S. Ct. 558 (2007). Reina challenges the District
Court’s legal conclusion that Vargas applied in this case on the ground that Kimbrough
overrules Vargas.
In Vargas, a case factually similar to this case, we held that “the disparity between
sentences in fast-track and non-fast-track districts is authorized by Congress and, hence,
warranted”; thus we found Vargas’s sentence was reasonable. Vargas, 477 F.3d at 98.
-4-
We cited cases from a number of our sister Courts of Appeals, all of which reached the
same conclusion. Id. at 98-99. We joined our sister Circuits and held 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. We held that “the establishment of
fast-track programs is a matter left to Congress and the Attorney General” and that when
Congress authorizes a sentencing disparity, that disparity cannot serve as a ground for
variance from the Guidelines.
Id. at 100.
Kimbrough, however, dealt with crack/cocaine sentencing disparities. The
District Court there held that the defendant’s lengthy sentence range reflected
disproportionate punishment for crack offenders. On appeal, the Fourth Circuit vacated
the below-Guidelines sentence because the District Court had held, in its discretion, that
Kimbrough should serve less time than the Guidelines prescribed.
The Supreme Court then held that while courts can not ignore statutory
maximums and minimums, “it would not be an abuse of discretion for a district court to
conclude when sentencing a particular defendant that the crack/powder disparity yields a
sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run
case.” Kimbrough,128 S. Ct. at 575.3
3
Kimbrough was recently clarified by Spears v. United States, 129 S. Ct. 840,
843 (2009), which held that District Courts may vary from the crack cocaine Guidelines
based on policy disagreements, “and not simply based on an individualized determination
that they yield an excessive sentence in a particular case.”
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Reina argues that Kimbrough overrules Vargas by analogy and allows a District
Court to vary its sentence on the basis of unwarranted disparity caused by
congressionally approved policies such as fast-track sentencing. We cannot agree.
We held in Vargas that the defendant has the burden of showing that his
circumstances “exactly paralleled” those of specific defendants in fast-track jurisdictions;
Vargas had failed to do so because he only made general allegations about potential
disparities, and therefore the District Court could not consider such a comparison.
Vargas, 477 F.3d at 100 (quoting United States v. Charles,
467 F.3d 828, 833 n.7 (3d
Cir. 2006)).
Reina’s situation is no different. There is no evidence in the record to show, with
the specificity required by Vargas and Charles, that Reina was actually treated differently
from similarly situated defendants in fast-track jurisdictions. Vargas, 477 F.3d at 100.
Reina sets forth only sweeping general arguments that he was treated differently than if
he had had access to a fast-track program, and therefore has not satisfied his burden of
proof.4
III.
4
Reina also challenges the District Court’s conclusion that, had Reina been
sentenced in a fast-track jurisdiction, he would not have been eligible for relief anyway.
It is not clear from the record whether Reina would have been eligible for fast-track
sentencing based upon his timely guilty plea because fast-track sentencing requirements
vary by jurisdiction. Regardless, this issue does not affect the result in this case, and we
accordingly decline to address it any further.
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Reina argues that the District Court violated his Fifth and his Sixth Amendment
rights by increasing his maximum sentence based on a prior conviction not charged in the
indictment or proved to a jury beyond a reasonable doubt. Reina notes that 8 U.S.C. §
1326(a) carries a two-year maximum sentence, but he was sentenced under Section
1326(b)(2), which increases the maximum sentence to 20 years when a defendant was
previously removed for conviction of an “aggravated felony.” Reina argues that the
indictment in his case never mentioned a prior conviction for an aggravated felony, and
thus his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000).
However, Reina concedes that his argument is foreclosed by the Supreme Court’s
decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998) (holding that 8
U.S.C. § 1326(b)(2) sets forth a sentencing factor for the subsection (a) offense; the fact
of an alien’s prior conviction is not an element of the crime and thus does not have to be
charged in the indictment to be a factor in sentencing), and our opinions in United States
v. Coleman,
451 F.3d 154 (3d Cir. 2006) (holding that Almendarez-Torres is still good
law) and United States v. Ordaz,
398 F.3d 236 (3d Cir. 2005) (applying Almendarez-
Torres to Sixth Amendment claims).
IV.
The District Court did not abuse its discretion in sentencing Reina, and we will affirm
its judgment of sentence.
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