NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 12-1363

UNITED STATES OF AMERICA

v.

VICTOR PALILLERO,

 Appellant

On Appeal from the United States District Court

for the District of New Jersey

(Crim. No. 3-11-cr-00572-001)

District Judge: Hon. Joel A. Pisano

Before: McKEE, Chief Judge, SLOVITER and VANASKIE,

Circuit Judges

Submitted pursuant to Third Circuit LAR 34.1(a)

December 17, 2012

(Opinion filed: May 22, 2013)

OPINION

McKEE, Chief Judge.

Victor Palillero appeals the district court’s judgment of sentence. For the reasons 

that follow, we will vacate the sentence and remand for proceedings consistent with this 

opinion.
2

I. FACTS AND PROCEDURAL HISTORY

Because we write for the parties, we will only refer to the facts and procedural 

history to the extent necessary for our brief discussion. 

Palillero agreed to plead guilty to distributing 50 grams or more of 

methamphetamine, in violation of 21 U.S.C § 841(a)(1) and (b)(1)(A)(viii). The 

government filed a sentencing brief acknowledging that Palillero was “safety valve” 

eligible and advocating a sentence within the advisory Guidelines range. In that brief, the 

government noted that Kimbrough v. United States, 552 U.S. 85, 101, 110-11 (2007), 

allowed a sentencing court to impose a sentence outside the suggested guidelines range 

on policy grounds, but that the law did not require the court to do so. 

Palillero contended that the methamphetamine Guideline, U.S.S.G. § 2D1.1(c)(4), 

was flawed and entitled to little deference, and he articulated several policy reasons for 

the court to vary from it.

In rejecting Palillero’s argument, the court explained: 

COURT: [The Guidelines range for methamphetamine 

offenses] is high. The problem is it’s a different drug [than 

crack cocaine]. The problem is it’s a different substance all 

together (sic) and unless and until Congress and the 

Commission seek to equate it to the crack versus powder 

cocaine disparity, I don’t know that I have much else to do 

with it.

You may be right, somewhere down the road Congress may 

determine to give the same kind of treatment they’ve now 

given to the crack disparity, but until such time as that 

happens, I think I have to reject the argument that you make. 

It just doesn’t, as a matter of law, translate.

That argument will be noted for the record and not accepted.
3

A50. 

The district court then discussed the 18 U.S.C. § 3553(a) factors and sentenced 

Palillero to a bottom-of-the-Guidelines-range sentence of 70 months, to be followed by 

three years of supervised release. Palillero appeals.1

II. DISCUSSION

Palillero argues that his sentence was unreasonable because the district court 

committed reversible error when it wrongly decided that it did not have the authority to 

consider his request for a downward variance based on his policy arguments about flaws 

in the methamphetamine Guideline. 

In Spears v. United States, 555 U.S. 261 (2009) (per curiam), the Supreme Court 

reconfirmed and succinctly explained its holding in Kimbrough:

The only fact necessary to justify such a variance is the 

sentencing court’s disagreement with the guidelines – its 

policy view that the 100-to-1 ratio [of powder to crack 

cocaine] creates an unwarranted disparity. . . . That was 

indeed the point of Kimbrough: a recognition of the district 

courts’ authority to vary from the crack cocaine Guidelines 

based on policy disagreement with them, and not simply 

based on an individualized determination that they yield an 

excessive sentence in a particular case.

555 U.S. at 264 (emphasis in original) (citation and internal quotation marks omitted).2 

 

1 We review a district court’s sentencing decision under an abuse of discretion standard, 

“[r]egardless of whether the sentence is inside or outside the Guidelines range.” Gall v. 

United States, 552 U.S. 38, 51 (2007). We have held that a sentence within the 

Guidelines will not be accorded a presumption of reasonableness. United States v. 

Cooper, 437 F.3d 324, 329 (3d Cir. 2006), abrogated on other grounds by Kimbrough v. 

United States, 552 U.S. 85 (2007).
4

Kimbrough’s rationale is not limited to the former crack cocaine/powder cocaine 

disparity. Indeed, a number of courts have exercised their authority to grant a downward 

variance based on a policy disagreement with various Guidelines provisions. See, e.g.,

United States v. Grober, 624 F.3d 592 (3d Cir. 2010); United States v. Dorvee, 616 F.3d 

174 (2d Cir. 2010); United States v. Arrelucea-Zamudio, 581 F.3d 142, 147 (3d Cir. 

2009).

Thus, the court noted in United States v. Pape, 601 F.3d 743, 749 (7th Cir. 2010), 

“[w]e understand Kimbrough and Spears to mean that district judges are at liberty to 

reject any Guideline on policy grounds – though they must act reasonably when doing 

so.” (citation omitted) (emphasis in original). 

Here, the district court suggested that it did not think that it had such authority 

unless it was applying the Guidelines for crack cocaine. The court explained: 

unless and until Congress and the Commission seek to equate 

it to the crack versus powder cocaine disparity, I don’t know 

that I have much else to do with it.

You may be right, somewhere down the road Congress may 

determine to give the same kind of treatment they’ve now 

given to the crack disparity, but until such time as that 

happens, I think I have to reject the argument that you make. 

It just doesn’t, as a matter of law, translate.

 

2 However, “[a]s this Court has made clear, . . . Kimbrough does not require a district 

court to reject a particular Guideline range where that court does not, in fact, have 

disagreement with the Guideline at issue.” United States v. Lopez-Reyes, 589 F.3d 667, 

671 (3d Cir. 2009) (citation omitted).
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Thus, Palillero’s claim that the district court rejected his policy arguments because 

it erroneously believed it did not have the legal authority to accept them is supported by 

the record. Accordingly, we will vacate the sentence and remand to the district court for

resentencing. On remand, the district court is free to adopt Palillero’s policy argument 

and impose a different sentence if it chooses to do so, but it is clearly not required to.3 

III. CONCLUSION

For the above reasons, we will vacate the judgment of sentence and remand for 

proceedings consistent with this opinion.

 

3

Palillero also argues that his sentence was substantively unreasonable because the 

district court failed to give sufficient consideration to the factors enumerated in 18 

U.S.C. § 3553(a). His main argument on the substantive unreasonableness of his 

sentence is that the district court used what he contends is the flawed methamphetamine 

Guideline , § 2D1.1(c)(4), as the initial benchmark and driving force behind its sentence. 

However, because we will vacate the sentence for the reasons stated in this opinion, we 

will not address this issue at this time.