No. 06-2909-cr.United States Court of Appeals, Second Circuit.
January 24, 2008.
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Appeal from a judgment entered in the United States District Court for the Southern District of New York (Loretta A. Preska Judge), convicting defendant following a guilty plea of one count of entering the United States after having been deported subsequent to conviction for an aggravated felony without obtaining permission of the Attorney General to reapply for admission, in violation of 8 U.S.C. § 1326 (a) and (b)(2).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,AND DECREED that the judgment of the District Court isAFFIRMED.
APPEARING FOR APPELLANT: CHARLES F. WILLSON, Nevins Nevins, East Hartford, CT.
APPEARING FOR APPELLEE: RANDALL W. JACKSON, Assistant United States Attorney (Michael J. Garcia, United States Attorney, Celeste L. Koeleveld, Assistant United States Attorney, on the brief), United States Attorney’s Office for the Southern District of New York, New York, NY.
PRESENT: AMALYA L. KEARSE, PIERRE N. LEVAL, JOSÉA. CABRANES, Circuit Judges.
Defendant-appellant Orlando Ramirez-Sucar[1] (“defendant” or “Ramirez-Sucar”) was convicted, after his guilty plea, of one count of entering the United States after having been deported subsequent to conviction for an aggravated felony, in violation of 8 U.S.C. § 1326 (a) and (b)(2). Defendant appeals from a judgment of conviction sentencing him principally to a term of 42 months’ imprisonment. He appeals his sentence only. We assume the parties’ familiarity with the facts and the procedural history of the case.
On appeal, defendant argues that the District Court erred in not finding that the existence of “fast-track” departures from Guidelines sentence calculations available to those sentenced for immigration offenses in some federal districts, but not the Southern District of New York, creates an unwarranted disparity. We have considered this question previously in United States v. Mejia, 461 F.3d 158 (2d Cir. 2006), where we determined that the disparities introduced by allowing fast-track departures in some, but not all, federal districts is not unwarranted and 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.” Id., at 164 (2d Cir. 2006). Defendant cites our recent decision in United States v. Liriano-Blanco, — F.3d —, No. 06-2919-cr, 2007 WL 4302708 (2d Cir. December 11, 2007), but it has no application here. In that case, the district court expressed an inclination to depart by reason of fast-track disparity but concluded it was forbidden to do so. The court thus sentenced without departure, assuming that if such a departure was in fact permitted, the court of appeals would remand for resentencing. The assumption was mistaken because the defendant had waived the right of appeal. On the basis of the district court’s erroneous assumption, we remanded for resentencing, noting that, if the district court wished to test whether a departure based on fast-track was permitted, it could do so by departing and leaving the government to appeal.
Judge Preska in the present case made clear she had no inclination to depart downward by reason of the availability of such departures in fast-track districts. Accordingly, it makes no difference whether such a departure is or is not permissible, and our decision in Liriano-Blanco has no relevance to this appeal.
Upon a review of the record and the relevant law, we detect no error in the District Court’s judgment of June 8, 2006. We have considered all of petitioner’s claims on appeal and find them to be without merit. Accordingly, we AFFIRM the judgment of the District Court.
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