Antоnio Albex-to Sebastian was convicted of illegal re-entry to the United States, in violation of 8 U.S.C. § 1326(a), and sentenced to 46 months’ imprisonment. He appeals his sentence, and we affirm.
Sеbastian is a citizen of Guatemala. While in the United States in 1998, he was convicted of child molestation in Georgia state court and sentenced to ten years’ imprisonment. In October 1998, hе was released from prison and deported.
Notwithstanding his deportation, Sebastian returned to the United States and repeatedly applied for, and received, Employment Authorization Documents. In 2003, he was deported a second time. In 2004, after applying to renew his Employment Authorization card, he was arrested and charged with illegal re-entry. He pled guilty, and a presentence investigation report (“PSR”) was prepared. In calculating the advisory guideline range,
see United States v. Booker,
Sebastian objected to the 16-level enhancement and to the criminal history calculation. Hе also filed a sentencing memorandum arguing why a sentence within the advisory guideline range would not be appropriate in light of the sentencing factors outlined in 18 U.S.C. § 3553(a). The district court 1 considered Sebastian’s objections, but found that the guideline range had been accurately calculated and that a sentence at the low end of the advisory range was reasonable in light of § 3553(a). The court thus imposed a sentence of 46 months.
On appeal, Sebastian does not dispute the district court’s calculation of the advisory guideline range. He arguеs, however, that his sentence is unreasonable because the district court weighed the advisory guidelines too heavily and failed properly to consider the other factors set forth in § 3553(a). In particular, Sebastian asserts that the district court overlooked his alleged confusion about whether he was actually permitted to return to the United States, the disparity between his sentence and one that he would have received if he were sentenced in a district using “fast-track” procedures for immigration cases, and the fact that his conviction for child molestation was counted under the guidelines both for purposes of his offense level and his criminal history category.
We review the ultimate sentence imposed for unreаsonableness,
Booker,
Sebastian’s most substantial argument is thаt the use of early disposition or “fast-track” programs for immigration cases in certain judicial districts creates unwarranted sentence disparities among defendants based only on the location in which an alien is apprehended. See USSG § 5K3.1. Because 18 U.S.C. § 3553(a)(6) requires the district court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” Sebastian argues that the more favorable treatment of aliens with similar records and similar offense conduct in judicial districts with fast-track programs makes it unreasonable to apply the advisory range to him.
In 2003, Congress directed the Sentencing Commission to promulgate a policy statement “authorizing a dоwnward departure of not more than 4 levels if the *916 Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney.” Prose-cutorial Remedies and Other Tools Against the Exploitation of Children Today (“PROTECT”) Act, Pub.L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003). The directive apparently was motivated by the large volume of immigratiоn cases presented for prosecution in certain judicial districts, and the perceived need for an administrative mechanism to permit more efficient processing of thеse cases. See 149 Cong. Rec. H2405, 2421 (daily ed. Mar. 27, 2003) (commentary to an amendment offered by Rep. Feeney). The Commission followed the congressional directive by adopting USSG § 5K3.1, concerning “Eаrly Disposition Programs,” which provides that “[u]pon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program” authorized by thе Attorney General and the United States Attorney for the district. Since then, the Attorney General has authorized such programs in several districts along the southwest and western borders of the United States, as well as in Nebraska and North Dakota, but not in Eastern Missouri. (Gov’t App. at 8 n.3).
These early disposition programs do create sentence disparities among defendants with similar criminal records who commit similar offense conduct. The disparity is based solely on geography, and this has prompted complaints that “it is difficult to imagine a sentencing disparity less warranted than one which depends on the accident of the judicial district in which the defendant happens to be arrested.”
United States v. Bonnet-Grullon,
In this instance, Congress and the President, by directing that the Sentencing Commission provide for guideline departures in certain judicial distriсts, “concluded that the advantages stemming from fast-track programs outweigh their disadvantages, and that any disparity that results from fast-track programs is not ‘unwarranted.’ ”
United States v. Perez-Chavez,
No. 2:05-CR-00003PGC,
We find Sebastian’s other arguments unavailing as well. His claim of
*917
confusion about whether he was permitted to return to the United States is largely undermined by his admission of guilt to the crime of illegal re-entry, and while the district court determined that a sentence at the low end of the guidelines was appropriate in light of Sebastian’s assertion of mitigating circumstances, we do not believe it was a clear error in judgment to sentence within the advisory range. Nor do we believe the district court abused its discretion by declining to vary from the advisory range based оn asserted “double-counting” of Sebastian’s state conviction in both his offense level and his criminal history. The Sentencing Commission reasonably concluded that a prior felony of this typе should increase both the offense level and the criminal history score,
see United States v. Dyck,
Finally, Sebastian suggests that the 16-level enhancement for his prior felony conviction was excessive, because thе Commission’s advisory enhancement does not distinguish among felonies based on their relative severity. The guideline does enumerate a subset of all felonies that qualify for the enhancement, USSG § 2L1.2(b)(1)(A), and the current version of the guideline embodies “a more nuanced sentencing scheme” than its predecessor, “providing for graduated sentencing enhancements of between 8 and 16 levels depending on the seriousness of the prior [aggravated] felony conviction.”
Dyck,
For these reasons, the judgment of the district court is affirmed.
Notes
. The Honorable Rodney W. Sippel, United States District Judge for the Eastern District of Missouri.