NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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NO. 09-3693

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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

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On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. Crim. No. 2-09-cr-00239-001

District Judge: Hon. J. Curtis Joyner

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Submitted Pursuant to Third Circuit LAR 34.1(a)

November 2, 2010

BEFORE: SCIRICA, STAPLETON and ROTH, Circuit Judges

(Opinion Filed: November 5, 2010)

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STAPLETON, 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 factors: his cooperation with the government, the “undue severity” of the sixteen 

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 considerable debate 

at the sentencing hearing, and the District Court directed a number of questions to 

counsel concerning it. At the conclusion of the hearings, the 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 and deter others. App. 145-47. 

Although the District Court may well have carefully considered the fast-track 

argument and decided that the defendant did not merit any benefit from such a theory, 

there is an insufficient record to support such a conclusion. Indeed, the record, 

 

1 Arceo-Garcia has only appealed on the basis of the fast-track disparity argument.
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particularly when viewed in the context of our case law at the time, is entirely consistent 

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 defendants district courts should consider “the need to avoid unwarranted 

sentence disparities among defendants with similar records who have been found guilty 

of similar conduct.” 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 consider 

such disparity in the course of reaching its sentence. We affirmed and agreed with its 

reasoning 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 similar conclusion based on Congress‟s approval of fasttrack 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, we 
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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 propriety 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 Court 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 analytic reasoning.

The fast-track issue should not be confined to 

subsection (a)(6), which concerns “avoid[ing] unwarranted 

sentencing disparities.” Instead, we hold 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 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 fasttrack disparity argument in all cases, we remanded to provide it with an opportunity to 

reconsider that argument in the course of resentencing.

Given the context 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 responsibilities. Accordingly, as in Arrelucea-Zamudio, we will remand to the 
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District Court to afford it an opportunity to clarify its position in light of our decision 

there.

While the court would be within its discretion to sentence Arceo to a withinGuidelines 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.