United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2002

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri. 

Antonio Alberto Sebastian, * 

*

Appellant. * 

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Submitted: December 12, 2005

Filed: February 6, 2006

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Before MELLOY, COLLOTON, and BENTON, Circuit Judges.

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COLLOTON, Circuit Judge.

Antonio Alberto Sebastian was convicted of illegal re-entry to the United

States, in violation of 8 U.S.C. § 1326(a), and sentenced to 46 months’ imprisonment.

He appeals his sentence, and we affirm.

Sebastian is a citizen of Guatemala. While in the United States in 1998, he was

convicted of child molestation in Georgia state court and sentenced to ten years’

imprisonment. In October 1998, he was released from prison and deported.
1

The Honorable Rodney W. Sippel, United States District Judge for the Eastern

District of Missouri.

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Notwithstanding his deportation, Sebastian returned to the United States and

repeatedly applied for, and received, Employment Authorization Documents. In 2003,

he was deported a second time. In 2004, after applying to renew his Employment

Authorization card, he was arrested and charged with illegal re-entry. He pled guilty,

and a presentence investigation report (“PSR”) was prepared. In calculating the

advisory guideline range, see United States v. Booker, 125 S. Ct. 738, 757 (2005), the

PSR recommended a base offense level of 8, see USSG § 2L1.2(a), and an additional

16-level increase for re-entry after a conviction for a crime of violence, id.

§ 2L1.2(b)(1)(A). The PSR also recommended a three-level downward adjustment

for acceptance of responsibility, see USSG § 3E1.1(a), (b), for a total offense level of

21. With a criminal history category III, the PSR calculated a guideline range of 46-

57 months.

Sebastian objected to the 16-level enhancement and to the criminal history

calculation. He also filed a sentencing memorandum arguing why a sentence within

the advisory guideline range would not be appropriate in light of the sentencing

factors outlined in 18 U.S.C. § 3553(a). The district court1

 considered Sebastian’s

objections, but found that the guideline range had been accurately calculated and that

a sentence at the low end of the advisory range was reasonable in light of § 3553(a).

The court thus imposed a sentence of 46 months.

On appeal, Sebastian does not dispute the district court’s calculation of the

advisory guideline range. He argues, however, that his sentence is unreasonable

because the district court weighed the advisory guidelines too heavily and failed

properly to consider the other factors set forth in § 3553(a). In particular, Sebastian

asserts that the district court overlooked his alleged confusion about whether he was

actually permitted to return to the United States, the disparity between his sentence
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and one that he would have received if he were sentenced in a district using “fasttrack” procedures for immigration cases, and the fact that his conviction for child

molestation was counted under the guidelines both for purposes of his offense level

and his criminal history category.

We review the ultimate sentence imposed for unreasonableness, Booker, 125

S. Ct. at 765-66, and a properly calculated guidelines sentence is presumptively

reasonable. See United States v. Tobacco, 428 F.3d 1148, 1151 (8th Cir. 2005).

Reasonableness review is “akin to abuse of discretion review,” United States v.

Rogers, 423 F.3d 823, 829 (8th Cir. 2005) (internal quotation and ellipses omitted),

and a guidelines sentence may nonetheless be unreasonable where a district court

gives significant weight to an improper or irrelevant factor, fails to consider a factor

that should have been given significant weight, or otherwise commits a clear error in

judgment in weighing the sentencing factors. Tobacco, 428 F.3d at 1151. 

Sebastian’s most substantial argument is that the use of early disposition or

“fast-track” programs for immigration cases in certain judicial districts creates

unwarranted sentence disparities among defendants based only on the location in

which an alien is apprehended. See USSG § 5K3.1. Because 18 U.S.C. § 3553(a)(6)

requires the district court to consider “the need to avoid unwarranted sentence

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

similar conduct,” Sebastian argues that the more favorable treatment of aliens with

similar records and similar offense conduct in judicial districts with fast-track

programs makes it unreasonable to apply the advisory range to him.

In 2003, Congress directed 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.” Prosecutorial

Remedies and Other Tools Against the Exploitation of Children Today (“PROTECT”)
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Act, Pub. L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003). The directive

apparently was motivated by the large volume of immigration cases presented for

prosecution in certain judicial districts, and the perceived need for an administrative

mechanism to permit more efficient processing of these cases. See 149 Cong. Rec.

H2405, 2421 (daily ed. Mar. 27, 2003) (commentary to an amendment offered by Rep.

Feeney). The Commission followed the congressional directive by adopting USSG

§ 5K3.1, concerning “Early Disposition Programs,” 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 and the

United States Attorney for the district. Since then, the Attorney General has

authorized such programs in several districts along the southwest and western borders

of the United States, as well as in Nebraska and North Dakota, but not in Eastern

Missouri. (Gov’t App. at 8 n.3).

These early disposition programs do create sentence disparities among

defendants with similar criminal records who commit similar offense conduct. The

disparity is based solely on geography, and this has prompted complaints that “it is

difficult to imagine a sentencing disparity less warranted than one which depends on

the accident of the judicial district in which the defendant happens to be arrested.”

United States v. Bonnet-Grullon, 53 F. Supp. 2d 430, 435 (S.D.N.Y. 1999), aff’d, 212

F.3d 692 (2d Cir. 2000); see also United States v. Santos, No. 05 Cr. 522, 2005 WL

3434791, at *6 (S.D.N.Y. Dec. 12, 2005). The command that courts should consider

the need to avoid “unwarranted sentence disparities,” however, emanates from a

statute, and it is thus within the province of the policymaking branches of government

to determine that certain disparities are warranted, and thus need not be avoided.

In this instance, Congress and the President, by directing that the Sentencing

Commission provide for guideline departures in certain judicial districts, “concluded

that the advantages stemming from fast-track programs outweigh their disadvantages,

and that any disparity that results from fast-track programs is not ‘unwarranted.’”
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United States v. Perez-Chavez, No. 2:05-CR-00003PGC, 2005 U.S. Dist. LEXIS

9252, at *21 (D. Utah May 16, 2005). There may be good reasons to question this

policy decision, id. at *35-38, but to require the district court to vary from the

advisory guidelines based solely on the existence of early disposition programs in

other districts would conflict with the decision of Congress to limit the availability of

such sentence reductions to select geographical areas, and with the Attorney General’s

exercise of prosecutorial discretion to refrain from authorizing early disposition

agreements in Eastern Missouri. The district court in this case, after considering all

of the factors in § 3553(a), concluded that a sentence of 46 months was appropriate,

and we do not think the sentence disparities arising from fast-track programs makes

this sentence unreasonable for Sebastian. Accord United States v. Morales-Chaires,

430 F.3d 1124, 1130-31 (10th Cir. 2005); United States v. Hernandez-Cervantes, No.

05-5414, 2005 WL 3529114, at *3 (6th Cir. Dec. 23, 2005) (unpublished); cf. United

States v. Martinez-Flores, 428 F.3d 22, 30 n.3 (1st Cir. 2005).

We find Sebastian’s other arguments unavailing as well. His claim of

confusion about whether he was permitted to return to the United States is largely

undermined by his admission of guilt to the crime of illegal re-entry, and while the

district court determined that a sentence at the low end of the guidelines was

appropriate in light of Sebastian’s assertion of mitigating circumstances, we do not

believe it was a clear error in judgment to sentence within the advisory range. Nor do

we believe the district court abused its discretion by declining to vary from the

advisory range based on asserted “double-counting” of Sebastian’s state conviction

in both his offense level and his criminal history. The Sentencing Commission

reasonably concluded that a prior felony of this type should increase both the offense

level and the criminal history score, see United States v. Dyck, 334 F.3d 736, 740 (8th

Cir. 2003), and it was not unreasonable for the district court to follow the same

approach of punishing certain previously deported aliens more severely than others.
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Finally, Sebastian suggests that the 16-level enhancement for his prior felony

conviction was excessive, because the Commission’s advisory enhancement does not

distinguish among felonies based on their relative severity. The guideline does

enumerate a subset of all felonies that qualify for the enhancement, USSG

§ 2L1.2(b)(1)(A), and the current version of the guideline embodies “a more nuanced

sentencing scheme” than its predecessor, “providing for graduated sentencing

enhancements of between 8 and 16 levels depending on the seriousness of the prior

[aggravated] felony conviction.” Dyck, 334 F.3d at 741. But even if it may be

reasonable in some cases to vary from the recommended 16-level increase when an

enumerated felony is viewed as less aggravating than others in the class, we conclude

that there are no extraordinary mitigating circumstances that made it unreasonable for

the district court to follow the recommended enhancement with respect to Sebastian’s

prior conviction at age 35 for sexual intercourse with a 12 year-old child.

For these reasons, the judgment of the district court is affirmed.

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