NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________ NO. 09

- 3693

________________ UNITED STATES OF AMERICA

v. FRANCISCO ARCEO

- GARCIA also known as FRANCISCO ARCEO, also known as JESUS RODRIGUEZ, also known as JESUS NOYOLA, also known as FRANK GARCIA Francisco Arceo

- Garcia Appellant

_______________ On Appeal from the United States District Court F or the Eastern District of Pennsylvania (D.C. Crim. No. 2

- 09

- cr - 00239

- 001 Distri ct Judge: Hon. J. Curtis Joyner

________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

November 2, 2010 BEFORE: SCIRICA, STAPLETON and ROTH, Circuit Judges

(Opinion Filed: November 5, 2010 )

________________2

STAPLETO N, Circuit Judge : Appellant Francisco Arceo

- Garcia (“Arceo”) pled guilty to illegal reentry into the United States. He was sentenced to a term of imprisonment of 48 months. In his sentencing memorandum and at his sentencing hearing, Arceo, an illegal immigrant deported three times previously for unlawful entry into the U.S., argued for a downward variance from his sentencing guidelines range of 46

- 57 months based on several factor s: his cooperation with the government, the “undue severity” of the six teen level enhancement under U.S.S.G. § 2L1.2(a) for a prior drug trafficking conviction, and the sentencing disparities among fast

- track and non

- fast

- track immigration districts. Arceo‟s fast

- track sentencing disparity argument was the subject of conside rable debate at the sentencing hearing, and the District Court directed a number of questions to counsel concerning it. At the conclusion of the hearings, t he District Court rejected the downward variance request but did not address the sentence disparity argument or either of the other factors , stating only “[i]n reference to the defendant‟s motion for this court to grant a downward variance, that motion is denied.” App. 144

- 45. 1 In his consideration of § 3553 factors, the District Court discussed only the nature and circumstances of the offense, the defendant‟s “involvement with the criminal justice system,” and the need to punish him a nd deter others. App. 145

- 47. Although the District Court may well have carefully considered the fast

- trac k argument and decided that the defendant did not merit any benefit from such a theory, there is an in sufficient record to support such a conclusion. Indeed, the record ,

1 Arceo

- Garcia has only appealed on the basis of the fast

- track disparity argument.3

particularly when viewed in the context of our case law at the time, is entirely cons istent with the District Court ‟s having reached the result that it did because it believed it was without authority to consider Arceo‟s fast

- track disparity argument. Section 3553(a)(6) of Title 28 of the United States Code provides that in sentencing def

endants district courts should consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduc t .” In United States v. Vargas , 477 F.3d 94 , 96 (3d Cir. 2007), which represented the law of our circuit at the time of Arceo‟s sentencing, the defendant argued that “his sentence created an „unwarranted disparity‟ in light of the „ fast

- track ‟ programs available to defendants in some other districts.” The District Court refused to co nsider such disparity in the course of reaching its sentence. We affirmed and agreed with its

reason ing for doing so:

[W]e agree with the District Court when, in addressing Vargas‟ § 3553(a)(6) claim, it stated the following: “[W]hat are prohibited under 3553 are unwarranted sentencing disparities. And I think the other two branches of Government, the legislative and executive, have made it clear that in their view these are warranted sentencing disparities. App. at 130

- 31 (emphasis added). That is, we agree that any sentencing disparity authorized through an act of Congress cannot be considered “unwarranted” under § 3553(a)(6). Vargas , 477 F.3d at 99

- 100. In reaching our conclusion, we cited cases from nine of our sister circuits which reached a simi lar conclusion based on Congress‟s approval of fast

trac k programs in the PROTECT Act. Shortly after Arceo‟s sentencing, this Court revisited the fast

- track disparity issue in United States v. Arrelucea

- Zamudio , 581 F.3d 142 (3d Cir. 2009). In that case, we4

addressed the Supreme Court‟s intervening decision in Kimbrough v. United States , 552 U.S. 85 (2007), and Spears v. United States , ___ U.S. ___ , 129 S. Ct. 840 (2009) , and the ensuing circuit split regarding the effect of these decisions on the proprie ty of a sentencing court considering fast

- track disparity. While we did not overrule Vargas , we recognized the necessity of clarifying its holding:

We must clarify Vargas post

- Kimbrough , however, to the extent that is has been read

– as the District Cour t did here

– as prohibiting a sentencing court‟s discretion to consider a fast

- track disparity argument because such a disparity is warranted by Congress under§ 3553(a)(6). That interpretation is no longer the view of our Court in light of Kimbrough ‟s ana lytic reasoning. The fast

- track issue shou l d not be confined to subsection (a)(6), which concerns “avoi d[ing] unwarranted sentencing disparities.” Instead, we hold that a sentencing judge has the discretion to consider a variance under the totality of t he § 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 case. Arrelucea

- Zamudio , 581 F.3d at 149 (footnote omitted). Because the District Court in Arrelucea

- Zamudio had understandably read Vargas as precluding acceptance of the fast

track disparity argument in all cases, we remanded to provide it with an opportunity to reconsider that argument in the course of resentencing. Given th e conte xt of the sentencing in this case and the District Court‟s failure to give any affirmative indication of an understanding that it was authorized in appropriate circumstances to give weight to fast

- track disparities, we are unable to exercise our review res ponsibilities. Accordingly, as in Arrelucea

- Zamudi o , we will remand to the5

District Court to afford it an opportunity to clarify its position in light of our decision there. While the c ourt would be within its discretion to sentence Arceo to a within

Gui delines sentence, and the court gave adequate reasons of punishment and deterrence for sentencing Arceo as it did, the court committed procedural error in not ruling on the defendant‟s disparity argument. When a matter is controverted, the District Court must state on the record its reasons for denying a defendant‟s motion, Fed. R. Crim. P. 32(i)(3)(B); United States v. Wise , 515 F.3d 207, 216 (3d Cir. 2008)

. We will vacate the judgment of sentence and remand for further proceedings consistent with this opinion.