2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-10-2010

USA v. Kevin McKenzie

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2554

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Recommended Citation

"USA v. Kevin McKenzie" (2010). 2010 Decisions. Paper 125.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No: 09-2554

UNITED STATES OF AMERICA

 v.

.

KEVIN DWIGHT MCKENZIE a/k/a “ARISTEDE EVANS”

KEVIN DWIGHT MCKENZIE,

Appellant

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Crim. No. 09-cr-00046-1)

District Judge: Hon. C. Darnell Jones, II

Submitted pursuant to Third Circuit LAR 34.1(a)

March 8, 2010

Before: McKEE, Chief Judge, BARRY 

and GREENBERG, Circuit Judges

(Opinion filed: December 10, 2010) 

OPINION
2

McKEE, Chief Judge.

Kevin McKenzie appeals the sentence that was imposed after he pled guilty to 

illegal reentry after deportation. For the reasons that follow, we will affirm.

I.1

McKenzie makes the following argument on appeal:

The district court erred in rejecting the defense request for a fasttrack disparity variance from the Sentencing Guidelines, because the 

court's ruling was based in part on the lack of a government motion for a 

fast-track departure, even though no such motion is required, and 

because the court applied a burden of proof since rejected by this court

Appellant=s Br. at i (internal quotation marks omitted).

After pleading guilty, McKenzie requested a downward departure/variance 

because the Eastern District of Pennsylvania lacks a fast-track program.2 He argued that 

a departure/variance was necessary to avoid sentencing disparity with similarly situated 

defendants sentenced in fast-track jurisdictions. The transcript of the sentencing hearing 

belies McKenzie=s argument. The district court stated:

I am likewise acutely sensitive to the arguments in support of departure or 

variance by [defense] counsel, based upon [a fast-track disparity] . . . 

And while departure may be authorized in this case, if I accepted those arguments, 

I choose not to depart because I believe departure is not warranted under the 

circumstances herein, and [McKenzie=s] history. 

 

1

Since we write primarily for the parties who are familiar with this case, we need not set 

forth the factual or procedural background.

2

The function and history of the fast-track program are described in detail in United 

States v. Arrelucea-Zamudio, 581 F.3d 142, 145-46 (3d Cir. 2009), and United States v. 

Vargas, 477 F.3d 94, 98 n. 8 (3d Cir. 2007). 
3

J.A. at 77. Thereafter, the court did refer to the burden of proof:

. . . the Court, as indicated, does not believe that a variance [for fast-track 

disparity] is warranted. The [Third Circuit] herein, in its pronouncements,3[has]

indicated that there is no obligation on the trial court=s part, to accept the argument 

of your counsel. But, nevertheless, I=ve considered it, against the backdrop of the 

totality of your circumstances and again, I do not believe that it is justified. 

Moreover, I would make, also, reference to the [Tenth] Circuit=s Martinez Trujillo

decision4. . . >upon the Motion of the Government, the Court may depart 

downward.= In McKenzie=s case, the Government has the authority to file such a 

Motion, such as Departure, but it has not done so in this case.

J.A. at 79. 

 

3

The court alludes to Vargas, 477 F.3d 94, for the proposition that Aa court that does not 

adjust a sentence to compensate for a fast track program, is acting reasonably.@ J.A. at 

64. In fact, in Arrelucea-Zamudio we took the “opportunity to clarify Vargas and expand 

on [it,] . . . conclud[ing] that, under the logic of Kimbrough [v. United States, 552 U.S. 85 

(2007)], it is within a sentencing judge‟s discretion to consider a variance from the 

Guidelines on the basis of fast-track disparity. Arrelucea-Zamudio, 581 F.3d at 143. 

4

In United States v. Martinez-Trujillo, the Court of Appeals for the Tenth Circuit rejected 

an appellant=s fast-track argument; in dicta the court stated: Athe decision that a defendant 

be >fast-tracked= is not made by the defendant but by the United States Attorney.@ 468 

F.3d 1266, 1269 (10th Cir. 2006) citing U.S.S.G. ' 5K3.1 (AUpon 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 of the United States and the 

United States Attorney for the district in which the court resides@).
4

McKenzie asserts that the district court committed reversible error when it Amade 

clear that [it] viewed [its] discretion to grant such a variance as being circumscribed by 

the requirement . . . [that a variance be granted] only upon the „motion of the 

government.‟” Appellant=s Br. 13. However, given the court=s unambiguous statement 

that the defendant=s circumstances did not warrant such an adjustment (AI choose not to 

depart because I believe departure is not warranted under the circumstances herein@), the 

subsequent reference to a government motion cannot be interpreted as a statement that 

the court would have granted a departure had a motion been made, or that any 

variance/departure was conditioned on the government making an appropriate motion. 

Rather, the court was merely noting the absence of a motion. However, given the court=s 

appropriately dim view of the defendant=s personal circumstances, it is clear that the court 

did not believe that the requested adjustment in the Guideline range was appropriate.

II.

We use a two-step process when reviewing sentences for abuse of discretion. Gall 

v. United States, 552 U.S. 38, 51 (2007). First, we review for significant procedural 

errors, including Afailing to consider the ' 3553(a) factors, . . . or failing to adequately 

explain the chosen sentence.@ United States v. Arrelucea-Zamudio, 581 F.3d 142, 145 

(3d Cir. 2009) quoting Gail, 552 U.S. at 51. If a sentence is procedurally sound, we 

review the Asubstantive reasonableness@ of the sentence, Gall, 552 U.S. at 51; A[t]he 

touchstone of >reasonableness= is whether the record as a whole reflects rational and 
5

meaningful consideration of the factors enumerated in 18 U.S.C. ' 3553(a).@ United 

States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc). 

III.

In Arrelucea-Zamudio, we held that a sentencing court has the Adiscretion to 

consider a variance from the Guidelines on the basis of a fast-track disparity@ during step 

three of the Gunter sentencing process.5 581 F.3d at 143, 148-49. However, we noted 

that Ait is not an abuse of a sentencing judge‟s discretion to decline to vary@ for a fasttrack disparity nor is Aa sentence . . . per se unreasonable because the judge declined to 

vary@ for a fast-track disparity. Id. at 148. Thus we have upheld a sentence where the 

record establishes an exercise of discretion, regardless of whether the variance or 

departure was granted, and we have remanded for clarification where the record did not 

clearly indicate whether the court understood its discretion to grant a fast-track 

adjustment.

Unlike the district court in Arrelucea-Zamudio, the district court here presciently 

exercised its discretion to Aaccept@ a fast-track argument, and Aconsidered it@ in light Aof 

the totality of [McKenzie=s] circumstances.@ J.A. at 77, 79. After completing an 

individualized assessment of the ' 3553(a) factors, the court denied any variance or 

 

5

In United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006), we established a threestep process for conducting a sentencing hearing: (1) a court must calculate the correct 

Guidelines sentence; (2) rule on any motions for departure, stating on the record whether 

the motion was granted and explaining how disposition of any motion affects the 

calculation; and (3) exercise its discretion by considering the relevant ' 3553(a) factors.
6

departure because of the need to deter deported felons from illegally reentering this 

country. J.A. at 70. 

The district court Aset forth enough to satisfy [us] that [it] has considered the 

parties= arguments and has a reasoned basis for exercising [its] own legal decisionmaking 

authority.@ Rita v United States, 551 U.S. 338, 339 (2007). Therefore, we find no error. 

IV. CONCLUSION.

Accordingly, the sentence of the district court will be affirmed.