Opinion
05-CR-0572.
January 16, 2008
MEMORANDUM-DECISION and ORDER
Upon his entry of a guilty plea to the offense of unlawfully attempting to re-enter the United States after having previously been removed following his conviction of an aggravated felony, Defendant was sentenced to 46 months imprisonment. See United States v. Liriano-Blanco, ___ F.3d. ___, ____, 2007 WL 4302708 (2d Cir. Dec. 11, 2007). On appeal, the Second Circuit remanded the matter to this Court for a determination of a proper sentence in light of the fact that Defendant waived his right to appeal and, therefore, Defendant could not challenge this Court's determination whether to use the fast-track sentencing disparity as a sentencing factor.
Upon reconsideration, the Court takes into consideration the factors set forth in 18 U.S.C. § 3553(a) and, in particular, § 3353(a)(1), (a)(3), (a)(4) and (a)(6). As the Court previously found, a Criminal History Category of IV overstates Defendant's conduct and, therefore, departs to a Criminal History Category of III. By doing so, Defendant is in a guideline range of 46-57 months. The Court finds, however, that a further two-level reduction is warranted based on: (1) Defendant's family circumstances (providing for his own two children as well as his girlfriend's child from a prior relationship); (2) the lack of availability of a fast-track program and the disparity caused thereby; (3) the speed with which Defendant admitted to his crime; (4) Defendant's forthrightness with law enforcement; (5) the lack of any indication that Defendant intended to re-enter the United States to commit further crimes; (6) the fact that Defendant will be deported after his sentence; (7) Defendant's vow not to return to the United States; and (8) the length of time between the commission of the underlying aggravated felony and the attempted re-entry.
Because Congress explicitly created potential sent encing disparities through the fast-track program not with standing 18 U.S.C. § 3553(a)(6), the Court finds that any sentencing disparities caused by the unavailability of the fast-track program alone is an insufficient basis upon which to depart from the guidelines.
For the foregoing reasons, the Court finds that Defendant is properly categorized in Criminal History Category III, offense level 19 and that a sentence of 37 months incarceration is appropriate. Accordingly, Defendant is hereby sentenced to a term of 37 months incarceration. The Clerk of the Court should amend the judgment accordingly.
IT IS SO ORDERED.