FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 9, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-1149
          v.                                             (D. Colorado)
 ALEJANDRO DIAZ-DEVIA,                        (D.C. No. 1:09-CR-00443-LTB-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, HOLLOWAY, and MURPHY, Circuit Judges.



I.    Introduction

      Plaintiff-Appellant Alejandro Diaz-Devia was convicted of unlawfully

reentering the United States following deportation. At sentencing, Diaz-Devia

asked the district court to vary downward from the advisory guidelines range

because of the disparity between his advisory sentence and sentences received by

defendants convicted of similar conduct in jurisdictions that have fast-track

disposition programs for illegal reentry cases. The district court refused to vary


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
downward and sentenced Diaz-Devia to forty-six months’ imprisonment, the low

end of the advisory range. Diaz-Devia appeals, asserting the district court

committed procedural error by failing to recognize it had discretion to consider

his fast-track argument. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), we affirm Diaz-Devia’s sentence.

II.   Background

      Diaz-Devia pleaded guilty to one count of unlawful reentry of a deported

alien subsequent to conviction for commission of an aggravated felony. See 8

U.S.C. §§ 1326(a)(1), (b)(2). A presentence report (“PSR”) calculated his

advisory guidelines range as forty-six to fifty-seven months’ imprisonment, based

on a total offense level of twenty-one and a Category III criminal history. Diaz-

Devia did not object to the calculation of his offense level or criminal history

category but filed a motion seeking a twenty-four-month sentence, which

represented a downward variance from the advisory guidelines range. The only

argument made in the motion relevant to this appeal is Diaz-Devia’s request that

the district court vary downward based on the sentencing disparities that result

from the adoption of so-called “fast-track” early disposition programs in some




                                         -2-
districts. 1 The district court rejected this argument, and the others made by Diaz-

Devia, and imposed the lowest sentence within the advisory guidelines range.

III.   Discussion

       In this appeal, Diaz-Devia does not challenge the calculation of his

advisory guidelines range or the substantive reasonableness of his sentence. He

argues, instead, that the district court committed procedural error by failing to

recognize it had discretion to vary downward based on the fast-track disparity

argument he made at sentencing. We review a sentencing court’s decision to

grant or deny a variance under a deferential abuse of discretion standard. United

States v. Martinez, 

, 1223 (10th Cir. 2010). Diaz-Devia, however,

challenges the method the district court used to calculate his sentence, an issue

we review de novo. 

the complete transcript of the sentencing proceeding, we

disagree with Diaz-Devia’s characterization of the district court’s ruling. Rather

than conclude it did not have authority to vary downward based on fast-track

disparities, the district court assumed it had that authority. It then proceeded to

consider the merits of Diaz-Devia’s argument, ultimately concluding not to vary

       1
        Fast-track programs were established by the PROTECT Act, which
instructed 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.” Pub. L. No.
108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003). The policy statement appears
in § 5K3.1 of the Sentencing Guidelines.

                                         -3-
downward from the advisory guidelines range. Many statements made by the

district court contribute to this interpretation of the sentencing proceeding.

      Most importantly, the court began the sentencing hearing by noting it

would “assume for sentencing purposes” it had “authority to consider each of

[Diaz-Devia’s] arguments individually and collectively as a whole” when

deciding whether to vary from the advisory guidelines range. This preliminary

statement is susceptible to only one meaning—the court proceeded to the merits

of Diaz-Devia’s arguments after first assuming it had discretion to grant a

variance on each ground he raised if it concluded one was warranted. The

remainder of the transcript supports this interpretation, revealing the district court

rejected Diaz-Devia’s fast-track disparity argument based on the view his

situation did not warrant the variance, not based on a view it lacked discretion to

vary downward to ameliorate fast-track sentencing disparities.

      The district court offered several specific reasons for rejecting Diaz-

Devia’s request for a variance. It began its analysis as follows:

      As a legal matter the defense I think first raises the fast-track
      disparity argument, which has been considered by me and rejected as
      a basis for a variant sentence either explicitly or implicitly. And I
      also note that this argument has been considered and rejected by the
      Tenth Circuit Court of Appeals in United States vs. Martinez-
      Trujillo, 

(10th Cir. 2006).

In Martinez-Trujillo, this court held that the disparity between fast-track

sentences and sentences received by defendants in non-fast-track districts is not


                                          -4-
unwarranted within the meaning of 18 U.S.C. § 3553(a)(6) because it was

specifically contemplated by Congress when it enacted the PROTECT Act. 

, 1268-69 (10th Cir. 2006). Thus, we held the sentencing court was

foreclosed from relying on the fast-track disparity to support a variance pursuant

to § 3553(a)(6). 

that a district court is categorically precluded from varying

downward based on sentencing disparities resulting from the existence of fast-

track programs has been called into question by recent Supreme Court

jurisprudence. See Spears v. United States, 

, 842-43 (2009) (per

curium) (holding a district court has discretion to vary from the Guidelines based

solely on a policy disagreement with the 100:1 ratio for crack and powder cocaine

offenses); Kimbrough v. United States, 

, 91 (2007) (holding district

courts have authority to consider the disparity between the Guidelines’ treatment

of crack and powder cocaine offenses when choosing an appropriate sentence);

see also United States v. Rodriguez-Galaviz, No. 10-1086, 

, at

*2 (10th Cir. Feb. 1, 2011) (unpublished disposition) (acknowledging Martinez-

Trujillo but nevertheless concluding “the district court had discretion under

[Kimbrough] to grant a variance in light of the absence of a fast-track program”). 2

It is unnecessary to resolve the question of whether, or to what extent, Spears and


      2
       Because “[u]npublished decisions are not precedential,” we cite this
decision for informational purposes only. 10th Cir. R. 32.1(A).

                                         -5-
Kimbrough affect our holding in Martinez-Trujillo because the district court did

not proceed under the belief it was foreclosed from varying downward based on

fast-track disparities and it did not reference Martinez-Trujillo for that

proposition. Instead, after first expressly stating it assumed it had discretion to

grant a variance based on Diaz-Devia’s arguments considered “individually and

collectively,” the court noted the existence of Martinez-Trujillo and implied it

harbored no policy disagreement with the Guidelines because it agreed with the

conclusion that fast-track disparities are not unwarranted. The district court, in

the exercise of its discretion, was within its power to agree with Diaz-Devia’s

argument that fast-track disparities are unwarranted just as it was equally within

its power to disagree. Thus, Congressional approval of fast-track disparities was

one reason relied upon by the district court to reject Diaz-Devia’s argument on

the merits. There is nothing in the district court’s limited reliance on Martinez-

Trujillo to suggest the court adopted the conclusion that a downward variance was

wholly precluded.

      The district court expanded on the reasons why it did not disagree with the

policy that resulted in a disparity between the sentence faced by Diaz-Devia and

the sentence imposed on defendants in a fast-track districts, stating:

              One of my principal bases for rejecting the fast-track argument
      is that it injects the Court or invites the Court to violate the doctrine
      of separation of powers. That is, the fast-track procedure was
      initiated by a separate branch of government, Congress, and is
      implemented by yet another branch of government, the executive

                                          -6-
      branch of our government, through the Attorney General and a
      United States attorney for a specific district. Obviously Colorado is
      not one of the districts implementing the fast-track program under
      the auspices of congressional authorization and executive
      implementation by the Attorney General and the United States
      Attorney for the District of Colorado.

This explanation reveals the district court’s opinion that any sentencing disparity

in Diaz-Devia’s case is the wholly permissible result of acceptable differences in

local law-enforcement strategies. “The decision to adopt the [fast-track program]

in a district is made by the United States Attorney General and the United States

Attorney for the district.” 

. By rejecting

Diaz-Devia’s argument on this basis, the district court was expressing its belief

that varying downward in Diaz-Devia’s case would have the effect of creating an

ad hoc fast-track program in Colorado, a state that does not have such a policy

because the United States Attorney for the District of Colorado does not believe

one is necessary or because the United States Attorney General has concluded one

is not warranted.

      The court then offered a third explanation for rejecting Diaz-Devia’s

argument on the merits.

             I tend to, and I think I have expressed a similar view to that of
      my colleague, Judge Krieger, that for a court to simply decide that a
      variant sentence should occur because other districts do implement
      the fast-track program would invite, rather than mitigate, sentencing
      disparity.




                                         -7-
            And of course proportionality is one of the factors specifically
      referenced for the Court to consider for a statutory—or any
      sentencing decision under, 18 United States Code, Section 3553(a).

When some, but not all, judges in a non-fast-track district vary based on fast-track

arguments, sentencing disparities arise in that district as a consequence. The

district court’s statement acknowledges that varying downward in Diaz-Devia’s

case could ameliorate the fast-track disparity in his case but it could also result in

a judicially created sentencing disparity in Colorado. The statement makes it

clear the court was unwilling to substitute one disparity for another in Diaz-

Devia’s case.

      The district court ended its discussion of Diaz-Devia’s argument with the

following statement:

             There runs a thread through the defense brief and argument
      here that in some way Kimbrough, which authorized judges to
      disregard in whole or in part the one hundred to one crack cocaine
      ratio Guidelines, spills over in a number of ways. If it spills over in
      some way to the fast-track program, it is my view at this point that
      Kimbrough is limited, and as further clarified in I think Spears, to
      crack cocaine sentencing decisions.

Although this statement, viewed in isolation, could support an argument that the

district court believed it only possessed discretion to vary downward based on a

disagreement with the policy underlying the crack and powder cocaine guidelines,

it cannot be interpreted in that way when read in context with the entire

sentencing transcript. At a later point in the hearing, the district court expanded

on its prior reference to Kimbrough and Spears, clarifying that it believed the

                                          -8-
sentencing disparity resulting from fast-track programs “nowhere approaches a

hundred to one disparity” between crack and powder sentences. In other words,

the court indicated that it was disinclined to grant Diaz-Devia a downward

variance because it believed fast-track programs did not result in sentencing

disparities of the severity and magnitude of disparities created by the powder and

crack cocaine guidelines. Once again, the court was simply reiterating its

position that it would not vary from the Guidelines in Diaz-Devia’s case because

it did not disagree with the policy underlying the applicable Guideline.

      The district court concluded its discussion of the fast-track issue by stating

it was “not persuaded at least as a general proposition and in this case that

disregard of Sentencing Guidelines based on fast-track programs in other districts

[was] warranted.” (emphasis added). Read in context with all the prior relevant

statements made by the court during sentencing, this final statement is susceptible

to only one reasonable interpretation, i.e., the court considered Diaz-Devia’s fast-

track argument and exercised its discretion to deny the downward variance

because it did not disagree with the policy underlying § 5K3.1 of the Sentencing

Guidelines providing for a maximum four-level downward departure only when

the Government moves for such a departure pursuant to the terms of an early

disposition fast-track program.




                                         -9-
IV.   Conclusion

      In light of the district court’s stated reasons for rejecting Diaz-Devia’s fast-

track argument, we conclude the sentence imposed by the court was not

procedurally unreasonable. Diaz-Devia’s sentence is affirmed.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




                                        -10-
10-1149, United States v. Diaz-Devia

HOLLOWAY, Circuit Judge, dissenting:


                                            I
         I cannot join the majority’s proposed order and judgment in this case. I

have concluded that we should instead remand for re-sentencing. Accordingly, I

must respectfully dissent.

First, I am not persuaded that the district judge recognized that he had the

discretion whether to grant the downward variance sought by Mr. Diaz-Devia. It

is true that some of the judge’s comments suggest that he held the view that he

had such discretion, and the majority has collected and highlighted those

comments. I, however, find more in the judge’s comments to support the

interpretation that he was persuaded as a matter of law that he could not grant the

variance, as I shall demonstrate in Part II of this dissent.

         Because it is unclear whether the district judge was exercising his

discretion, or instead was following the binding precedent of this court which told

him that he could not grant Mr. Diaz-Devia’s motion, I could only join in the

result reached by the majority if I thought that our precedent was still valid. But I

will explain in Part III of this dissent that I do not believe that precedent is still

valid.

         Unable to join in the majority’s belief that the confusing and self-

contradicting statements by the district judge clearly reveal that the precedent was

not being relied on, I cannot join in affirming a sentence which may be based on a
legal principle which I believe should be recognized to have been abrogated. The

majority of the circuits that have reached the question have overruled their

precedents analogous to ours. And significantly, the government in this case has

formally notified this court that it no longer takes the position that our precedent

retains its validity.

       A brief overview of the relevant legal landscape will provide context for

the discussion below. Sentencing under the United States Sentencing Guidelines

was radically transformed by United States v. Booker, 

(2005), in

which the Court held that the Guidelines must be regarded as advisory rather than

mandatory. Meanwhile, courts in districts abutting the international border with

Mexico were struggling with an enormous number of immigration cases like this

one, involving illegal re-entry into this country by an alien who had previously

been deported after conviction for a criminal offense. In some districts,

prosecutors devised early disposition programs that are now commonly referred to

as “fast-track” programs.

       Fast-track sentencing programs originated with federal prosecutors in
       states bordering Mexico, who were faced with increasing numbers of
       illegal reentry and other immigration cases. They accordingly
       designed programs whereby defendants accused of certain
       immigration offenses would plead guilty early in the process and
       waive their rights to file certain motions and to appeal, in exchange
       for a shorter sentence. The shorter sentence was accomplished either
       by charge-bargaining or by promising to recommend a downward
       departure at sentencing.




                                          -2-
      In 2003, Congress endorsed the fast-track concept in a provision of
      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) (codified in scattered Sections of 18, 28, and 42
      U.S.C.). A provision of the PROTECT Act directed the United
      States 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.” . . . .

      In jurisdictions where fast-track programs have been authorized by
      the Attorney General, defendants must agree to the factual basis [of
      the criminal charge] and waive the rights to file pretrial motions, to
      appeal, and to seek collateral relief (except for ineffective assistance
      of counsel).

United States v. Morales-Chaires, 

, 1127 (10th Cir. 2005) (internal

citations and quotation marks omitted). 1

      Colorado, where Mr. Diaz-Devia was prosecuted, does not have a fast-track

program. The central issue in the instant appeal is whether the existence of fast-

track programs in some judicial districts is a factor that a judge in a district

without such a program may consider and on the basis of which a judge might

vary downward from the recommended Guideline range in sentencing an

individual like Mr. Diaz-Devia. We have held, after Booker, that sentencing

disparities caused by the existence of fast-track programs are not “unwarranted”


      1
        Although fast-track programs were authorized and are used primarily in
districts situated on international borders where cases like the instant case have
created burdensome caseloads, fast-track programs have also been approved in
several districts with extraordinarily low incidences of such cases. See United
States v. Gramillo-Garcia, 

, 839-40 (N.D. Ill. 2009).

                                            -3-
within the meaning of 18 U.S.C. § 3553(a)(6) and so can not be used to justify a

downward variance from a recommended guideline range. United States v.

Martinez-Trujillo, 

(10th Cir. 2006).

      The year following our decision in Martinez-Trujillo, the Supreme Court

issued an important decision on implementation of the Booker holding,

Kimbrough v. United States, 

(2007), which is of particular

importance in this appeal because Mr. Diaz-Devia bases his primary argument on

the contention that Kimbrough effectively abrogated Martinez-Trujillo.

      In Kimbrough, the Supreme Court reversed the judgment of the Court of

Appeals for the Fourth Circuit which had reversed the sentence imposed by the

district court in a crack cocaine case. The sentencing judge had decided that a

sentence within the recommended Guideline range would have been greater than

necessary to achieve the purposes set out in 18 U.S.C. § 3553(a), and the judge

reasoned that this excessiveness was largely the result of the controversial

Guidelines provision that set offense levels for crimes involving cocaine. That

provision employed a 100-1 ratio, in which the quantity of powder cocaine

necessary to reach the threshold for a particular offense level was one hundred

times the quantity of crack cocaine that would yield the same offense level.

      The district judge sentenced Mr. Kimbrough to the statutory minimum

term, which was substantially less than the advisory Guidelines range. On appeal

the Fourth Circuit reversed, holding that a sentence outside of the advisory

                                         -4-
Guidelines range was per se unreasonable when based on a disagreement with the

policy choice embodied in the 100-1 crack to powder ratio. The Supreme Court

reversed and held that:

      [U]nder Booker, the cocaine Guidelines, like all other Guidelines, are
      advisory only, and that the Court of Appeals erred in holding the
      crack/powder disparity effectively mandatory. A district judge must
      include the Guidelines range in the array of factors warranting
      consideration. The judge may determine, however, that, in the
      particular case, a within-Guidelines sentence is “greater than
      necessary” to serve the objectives of sentencing. In making that
      determination, the judge may consider the disparity between the
      Guidelines’ treatment of crack and powder cocaine 

.

      This is the context for the primary contention Mr. Diaz-Devia advances in

this appeal, that Kimbrough has effectively abrogated Martinez-Trujillo. Mr.

Diaz-Devia thus argues that, to paraphrase Kimbrough, a judge may determine in

a particular case that a within-Guidelines sentence is greater than necessary to

accomplish the objectives of sentencing and that in making that determination, the

judge may consider the disparity between sentences for illegal re-entry in districts

with fast-track programs and districts without them.




                                         II

      The majority here, however, finds it unnecessary to rule on Mr. Diaz-

Devia’s argument, concluding instead that although the district judge cited

                                         -5-
Martinez-Trujillo, he did not follow that binding precedent and that the judge did

not believe that he was precluded from granting a downward variance as Mr.

Diaz-Devia requested. I find that the judge’s remarks show that these conclusions

are likely incorrect.

      As the majority notes, without acknowledging its import, the district judge

began his analysis by referring to Mr. Diaz-Devia’s argument for a variance as a

“legal matter,” and one that he had previously rejected, observing that one of his

“principal bases” for rejecting the argument previously was his view that adopting

the argument would invite the court to violate the doctrine of separation of

powers. The judge then noted that this court had rejected the argument in

Martinez-Trujillo, which of course was binding precedent of our court to the

effect that Mr. Diaz-Devia’s argument must be rejected as a matter of law.

      Usually when a district judge in our circuit cites one of our precedential

opinions, it is to follow that opinion. But the majority here somehow determines

that in this case the district judge cited the case for some other reason. That

conclusion might be plausible had the judge given any indication that he agreed

with Mr. Diaz-Devia that Kimbrough provided reason to doubt the continuing

vitality of Martinez-Trujillo. But in his two references to Kimbrough, the judge

made it clear that he did not agree with Mr. Diaz-Devia’s argument.

      First, the judge made a statement which indicates in clear terms that he had

considered and rejected Mr. Diaz-Devia’s legal argument:

                                          -6-
      There runs a thread through the defense brief and argument here that
      in some way Kimbrough, which authorized judges to disregard in
      whole or in part the one hundred to one crack cocaine ratio
      Guidelines, spills over in a number of ways. If it spills over in some
      way to the fast-track program, it is my view at this point that
      Kimbrough is limited . . . to crack cocaine sentencing decisions.

Thus, the judge first cited Martinez-Trujillo, then specifically rejected the legal

argument that Kimbrough could apply to this fast-track disparity situation and so

rejected Mr. Diaz-Devia’s argument that Kimbrough had abrogated Martinez-

Trujillo.

      I am therefore quite unpersuaded by the majority’s conclusion that the

judge did not feel bound by Martinez-Trujillo, a conclusion apparently based

largely on the judge’s comment that he assumed that he had the authority to

consider the legal argument. While he did consider the argument, it is clear that

the judge rejected it because he considered the legal question settled by Martinez-

Trujillo.

      The judge made a second reference to Kimbrough in his comments,

characterizing Mr. Diaz-Devia’s argument as an effort to utilize Kimbrough as a

“springboard” for judges to apply their individual “proclivities in a way that may

not or would not comport with congressional policy and the policy of the United

States Sentencing Commission, or in the case of the fast-track issue, the executive

determination through the Attorney General and a United States Attorney to

implement congressional policy.” The trial judge here went on to say that while


                                          -7-
he certainly had “the authority to consider these arguments, and while this law

may yet be further clarified in the courts of appeal and potentially the Supreme

Court, I am not persuaded that these arguments either individually or collectively

should yield a [below Guidelines] sentence.” Here again, the judge’s reference to

the state of the law, along with his earlier comments on his views of the

applicable law, belies the majority’s notion that the judge assumed arguendo that

the law would allow him to grant the motion.

      Thus, although some of the judge’s unscripted remarks suggest that his

decision was made on the individual merits of the case or, as the majority

suggests, based on the judge’s agreement with the policy of limiting variances to

fast-track districts, there is much in the remarks that reflect the view that the law

was settled against Mr. Diaz-Devia. In my view we should not assume that the

judge would have made the same sentencing decision if he held a different view

of the law. And because as I shall next explain I would hold that the view of the

law expressed by the judge is no longer valid, I would remand this case for the

judge to consider Mr. Diaz-Devia’s argument in accord with what I see as the

abrogation of Martinez-Trujillo by Kimbrough.



                                          III

      To date four circuits have accepted the argument made by Mr. Diaz-Devia

in this case, that federal district judges may – in their discretion and in applying

                                          -8-
all of the sentencing factors of 18 U.S.C. § 3553(a) – consider the sentencing

disparities produced by the fast-track programs. United States v.

Arrelucea-Zamudio, 

(3d Cir. 2009); United States v. Rodriguez, 

(1st Cir. 2008); United States v. Camacho-Arellano, 

(6th

Cir. 2010), and United States v. Reyes-Hernandez, 

(7th Cir. 2010).

All of these cases were decided after Kimbrough, and each of these courts

concluded that “the holding in Kimbrough and in Spears v. United States, 

(2009) – that sentencing judges may vary from the guidelines based on

policy disagreements – ‘is not limited to the crack/powder cocaine context.’”

(quoting 

).

      Three other circuits have held to the contrary. 2 But the Third Circuit

explained that these courts erred in focusing on Congressional policy. Arrelucea-

. As the Rodriguez court said, “Kimbrough made

pellucid that when Congress exercises its power to bar district courts from using a

particular sentencing rationale, it does so by the use of unequivocal 

. And it is of course very significant that the government now

agrees with these views, as stated in this case in their Fed. R. App. P. 28(j) letter

of November 12, 2010: “The government does not argue that the fast-track



      2
       See United States v. Gomez-Herrera, 

, 562-63 (5th Cir.
2008); United States v. Gonzalez-Zotelo, 

, 740-41 (9th Cir. 2009);
and United States v. Vega-Castillo, 

(11th Cir. 2008).

                                         -9-
provision contained in the PROTECT Act prohibits variances based on fast-track

disparity, as several courts of appeals have held.”

      It is not necessary to elaborate further here. I simply repeat that I find the

reasoning of the majority of the circuits persuasive and I also find the

government’s change of position very significant. I would hold that Martinez-

Trujillo is no longer good law as a result of the teachings of Kimbrough.

                                         IV

      I therefore respectfully dissent. I would remand for re-sentencing,

instructing the district court in clear terms that Martinez-Trujillo has been

abrogated by Kimbrough and that Mr. Diaz-Devia’s motion for a downward

variance must be considered and decided with that understanding of the current

state of the law.




                                         -10-