UNITED STATES of America, Plaintiff-Appellant, v. Carlos ROMERO-CANDELARIA, a/k/a Carlos Romero, a/k/a Carlos Candelaria, Defendant-Appellee, 189 F. App'x 149

PER CURIAM: The United States appeals Carlos Romero-Candelaria’s sentence for illegally reentering the United States after being deported, see 8 U.S.C.A. § 1326(a), (b)(2) (West 2005). The district court imposed a below-guidelines variance sentence to avoid an “unwarranted sentence disparity],” 18 U.S.C.A. § 3553(a)(6) (West 2000), between Romero-Candelaria and defendants that had participated in a “fast-track” program. Finding the sentence unreasonable, we vacate and remand for resentencing. I. Romero-Candelaria, a citizen of Mexico, illegally entered the United States in November 1995.

In August 1998, he was convicted in North Carolina of attempted second-degree kidnapping and was sentenced to ten to twelve months imprisonment. After serving his sentence, he was deported on March 1,1999. Romero-Candelaria reentered the United States without permission in approximately April 2003. Almost two years later, he was charged in North Carolina with driving while his license was revoked. After it was determined that Romero-Candelaria had reentered the country illegally, he was indicted on a single count of reentering the United States after having been deported, see 8 U.S.C.A. § 1326(a), (b)(2).

He pleaded guilty to the indictment without a plea agreement. At sentencing, the district court began by calculating Romero-Candelaria’s sentencing guideline range. Because Romero-Candelaria had been convicted of a felony crime of violence — the attempted kidnapping — prior to his deportation, the district court applied a 16-level increase to his base offense level of 8. See United States Sentencing Guidelines Manual § 2L1.2(a), (b)(l)(A)(ii) (2004). Application of a 3-level adjustment for acceptance of responsibility, see U.S.S.G. § 3E1.1, reduced the total offense level to 21.

With a Criminal History Category of IV, Romero-Candelaria’s guideline range was 57 to 71 months. The district court then heard argument on a request by Romero-Candelaria for a below-guidelines sentence. He contended that such a sentence was necessary to avoid an unwarranted sentence disparity with defendants who had received “fast-track” sentences.

He further argued that the nature and circumstances of the attempted kidnapping of which he was convicted, his relatively modest other criminal history, his acceptance of responsibility, and his agreement to return to Mexico, when considered together, also warranted a below-guidelines sentence. In contrast, the Government requested imposition of a sentence within the guideline range. The Government denied that any disparity produced by such a sentence would be “unwarranted” since RomeroCandelaria did not participate in any fast-track program and was therefore not similarly situated to those who did.

At the close of arguments, the court imposed a 24-month sentence — 33 months less than the low end of the guideline range — in order to avoid an unwarranted sentence disparity with defendants who participated in fast-track programs. II. The Government argues that the district court erred in imposing a below-guidelines sentence to account for sentences received by defendants participating in fast-track programs. We agree. Our recent decision in United States v.

Perez-Pena, 453 F.3d 236, 244-45 (4th Cir. 2006), establishes that the sentence disparity between a non-fast-track defendant and one who received a fast-track sentence is not “unwarranted” within the meaning of 18 U.S.C.A. § 3553(a)(6). We therefore vacate Romero-Candelaria’s sentence as unreasonable and remand for resentencing. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before us and argument would not aid the decisional process. VACATED AND REMANDED. The nature of such programs is discussed in our recent opinion in United States v.

Perez-Pena, 453 F.3d 236, 238-40 (4th Cir.2006).