UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5185

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

versus

CARLOS ROMERO-CANDELARIA, a/k/a Carlos Romero,

a/k/a Carlos Candelaria,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. W. Earl Britt, Senior

District Judge. (CR-05-63)

Submitted: April 27, 2006 Decided: July 12, 2006

Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and HAMILTON,

Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant

United States Attorney, Eric D. Goulian, Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North

Carolina, for Appellant. Thomas P. McNamara, Federal Public

Defender, G. Alan DuBois, Assistant Federal Public Defender, OFFICE

OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*The nature of such programs is discussed in our recent

opinion in United States v. Perez-Pena, No. 05-5054, 2006 WL

1791697, at *1-2 (4th Cir. June 30, 2006).

2

PER CURIAM:

The United States appeals Carlos Romero-Candelaria’s sentence

for illegally reentering the United States after being deported,

see 8 U.S.C.A. § 1326(a), (b)(2) (West 2005). The district court

imposed a below-guidelines variance sentence to avoid an

“unwarranted sentence disparit[y],” 18 U.S.C.A. § 3553(a)(6) (West

2000), between Romero-Candelaria and defendants that had

participated in a “fast-track” program.* Finding the sentence

unreasonable, we vacate and remand for resentencing.

 

I.

Romero-Candelaria, a citizen of Mexico, illegally entered the

United States in November 1995. In August 1998, he was convicted

in North Carolina of attempted second-degree kidnapping and was

sentenced to ten to twelve months imprisonment. After serving his

sentence, he was deported on March 1, 1999. 

Romero-Candelaria reentered the United States without

permission in approximately April 2003. Almost two years later, he

was charged in North Carolina with driving while his license was

revoked. After it was determined that Romero-Candelaria had

reentered the country illegally, he was indicted on a single count

of reentering the United States after having been deported, see
3

8 U.S.C.A. § 1326(a), (b)(2). He pleaded guilty to the indictment

without a plea agreement.

At sentencing, the district court began by calculating RomeroCandelaria’s sentencing guideline range. Because Romero-Candelaria

had been convicted of a felony crime of violence--the attempted

kidnapping--prior to his deportation, the district court applied a

16-level increase to his base offense level of 8. See United

States Sentencing Guidelines Manual § 2L1.2(a), (b)(1)(A)(ii)

(2004). Application of a 3-level adjustment for acceptance of

responsibility, see U.S.S.G. § 3E1.1, reduced the total offense

level to 21. With a Criminal History Category of IV, RomeroCandelaria’s guideline range was 57 to 71 months. The district

court then heard argument on a request by Romero-Candelaria for a

below-guidelines sentence. He contended that such a sentence was

necessary to avoid an unwarranted sentence disparity with

defendants who had received “fast-track” sentences. He further

argued that the nature and circumstances of the attempted

kidnapping of which he was convicted, his relatively modest other

criminal history, his acceptance of responsibility, and his

agreement to return to Mexico, when considered together, also

warranted a below-guidelines sentence.

In contrast, the Government requested imposition of a sentence

within the guideline range. The Government denied that any

disparity produced by such a sentence would be “unwarranted” since
4

Romero-Candelaria did not participate in any fast-track program and

was therefore not similarly situated to those who did. At the

close of arguments, the court imposed a 24-month sentence--33

months less than the low end of the guideline range--in order to

avoid an unwarranted sentence disparity with defendants who

participated in fast-track programs. 

II.

The Government argues that the district court erred in

imposing a below-guidelines sentence to account for sentences

received by defendants participating in fast-track programs. We

agree.

Our recent decision in United States v. Perez-Pena, No. 05-

5054, 2006 WL 1791697, at *7 (4th Cir. June 30, 2006), establishes

that the sentence disparity between a non-fast-track defendant and

one who received a fast-track sentence is not “unwarranted” within

the meaning of 18 U.S.C.A. § 3553(a)(6). We therefore vacate

Romero-Candelaria’s sentence as unreasonable and remand for

resentencing. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

us and argument would not aid the decisional process.

VACATED AND REMANDED