Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit

3-23-2007

USA v. Vargas Precedential or Non-Precedential: Precedential

Docket No. 06-1368

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Recommended Citation "USA v. Vargas" (2007). 2007 Decisions. Paper 1377. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1377

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 06-1368

UNITED STATES OF AMERICA

v.

SANDRO ANTONIO VARGAS,

Appellant

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 05-cr-00265-1) District Judge: Honorable Paul S. Diamond

Present: SCIRICA, Chief Judge, SLOVITER, McKEE, RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER CHAGARES, JORDAN, VAN ANTWERPEN* and SILER**, Circuit Judges

SUR PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING EN BANC

The petition for rehearing filed by Appellant having been submitted to all judges

who participated in the decision of this court, and to all the other available circuit judges

* Honorable Franklin S. Van Antwerpen vote limited to panel rehearing only. ** *Honorable Eugene E. Siler, Senior Judge for the Sixth Circuit, sitting by designation, vote limited to panel rehearing only. in active service, and a majority of the judges who concurred in the decision not having

asked for rehearing, and a majority of the circuit judges of the circuit in regular active

service not having voted for rehearing by the court en banc, the petition for rehearing is

hereby denied. Judge Ambro concurs in the denial of the petition and has filed a

separate concurrence.

By the Court,

/s/ Franklin S. Van Antwerpen Circuit Judge

Date: March 23, 2007 PDB/cc: Elizabeth T. Hey, Esq. Daniel A. Velez, Esq. AMBRO, Circuit Judge, concurring sur denial.

I concur in the Court’s denial of rehearing en banc, but write specially to

emphasize what I perceive the panel did and, more importantly, did not hold in this case.

After recognizing the limited scope of the panel opinion, its holdings do not conflict

with United States v. Gunter,

(3d Cir. 2006), as argued in the Petition for

Rehearing En Banc.

The panel here made two relevant holdings: (1) that “a district court’s refusal to

adjust a sentence to compensate for the absence of a fast-track program does not make a

sentence unreasonable,” Slip Op. at 10–11; and (2) that “any sentencing disparity

authorized through an act of Congress cannot be considered ‘unwarranted’ under [18

U.S.C.] § 3553(a)(6),” Slip Op. at 11. I consider these to be correct statements of the

law and fully compatible with our holding in Gunter.

As to the first holding, we said in Gunter that “a sentencing court errs when it

believes it has no discretion to consider the crack/powder cocaine differential

incorporated in the Guidelines.”

. Nothing in Gunter, though,

established a rule that sentencing courts must account for every arguable infirmity in the

Guidelines; rather, it affirmed the inverse rule—flowing directly from United States v.

Booker,

(2005)—that those courts may do so if they are persuaded that the

Guidelines do not sufficiently effect the goals of sentencing set out in § 3553(a). In

short, Booker does not require sentencing courts to vary from the Guidelines range, but

merely allows the practice. The second holding is likewise not in conflict with Gunter. The panel here held

only that a sentencing court may not, in the fast-track context, rely on § 3553(a)(6)’s

reference to “unwarranted sentence disparities” to justify a sentence that varies from the

advisory Guidelines range. See Slip Op. at 11. This, however, does not preclude any of

the other factors listed in § 3553(a) from serving as a basis for a variance from the

advisory Guidelines range. For example, § 3553(a)(1) requires that a sentencing court

consider “the history and characteristics of the defendant.” Under this provision,

consideration of an individual defendant’s early plea of guilty and waiver of various

procedural rights—facts which are the basis of a § 5K departure motion in fast-track

districts—is yet permissible when a district court is exercising its discretion at Gunter’s

step three. See United States v. Fernandez,

, 33–34 (2d Cir. 2006)

(explaining that § 3553(a)(1) can serve as a basis for a varied sentence even when the

Government does not make a § 5K departure motion).

Gunter held that a district court errs when it believes it may not vary from the

advisory Guidelines range at step three.

. It also held that when

sentencing policy is expressed in the Guidelines, courts of appeals likewise may not

enforce (at step three) the strict implications of that policy on the length of a defendant’s

sentence, but instead may only review for ultimate reasonableness.

. If it were

otherwise, the Guidelines would not be truly advisory, as Booker requires. I do not read

the panel opinion here to be in conflict with Booker or Gunter, and I thus concur in the

denial of rehearing en banc.