Fives Suggest Consideration of Fast-Track Disparity Is Abuse of Discretion; Apply Very Robust Presumption of Reasonableness

United States v. Gomez-Herrera, No. 07-10153 (5th Cir. Apr. 3, 2008; revised Apr. 4, 2008) (Jones, Davis, Garza)

Recall that, after Booker, the Fifth Circuit held that a district court's refusal to consider geographic sentencing disparities created by differing fast-track policies around the country does not render a sentence unreasonable, notwithstanding the statutory command in § 3553(a)(6) to consider the need to avoid unwarranted sentencing disparities. The court reasoned that disparity-avoidance is but one of the § 3553(a) factors, and that Congress implicitly authorized such disparities when it formally authorized fast-track departures in the PROTECT Act without altering § 3553(a)(6).

One might think that the Supreme Court's later decisions in Rita and Kimbrough would have called the Fifth Circuit's position into question. After all, both decisions support the idea that district courts can impose a non-Guidelines sentence based on policy disagreements with the relevant guidelines.

Nevertheless, Gomez-Herrera holds that Rita and Kimbrough do not affect its earlier decision concerning fast-track disparities. According to Gomez-Herrera, district courts are still bound by Congressional sentencing policies, and Congress intended to allow disparities resulting from fast-track programs. Consequently, that intended disparity is not "unwarranted" within the meaning of § 3553(a)(6).

But Gomez-Herrera goes even further, with this surprising declaration (dictum?):

Another way of stating this argument is that it would be an abuse of discretion for the district court to deviate from the Guidelines on the basis of sentencing disparity resulting from fast track programs that was intended by Congress. A district court abuses its discretion if its ruling rests on an erroneous view of the law. Cooter & Gell v. Hartmaxx Corp., 496 U.S. 384, 405 (1990). The Supreme Court in Kimbrough recognized and respected the sentencing disparity created by statutory mandatory minimum sentences for certain quantities of crack vs. powder cocaine. A district court ruling deviating from the Guidelines on the basis of sentencing disparity created by Congressionally mandated fast track programs only in districts approved by the Attorney General would result from an erroneous view of the law.

(emphasis added).

Think about that for a moment. Pre-Rita and Kimbrough, the Fifth Circuit held that district courts aren't required to consider fast-track disparities, but as Gomez-Herrera acknowledges, it "never held that a district court may not consider and give effect to defendant’s argument for a reduced sentence on this basis." But after Rita and Kimbrough---decisions which revealed that the scope of post-Booker sentencing discretion is broader than many courts, including the Fifth Circuit, thought it was---it would be an abuse of discretion to even consider the disparity. (Not to mention the separation-of-powers implications arising from a Congressional intent to allow the Attorney General to create disparities § 3553(a)(6) would otherwise forbid.)

And that's not the only surprising thing about this opinion. Gomez-Herrera also seems to apply a standard of review even more deferential than abuse-of-discretion to the within-Guidelines sentence in this case. Here's the pitch Gomez made in both the district and circuit courts:

Gomez-Herrera also argues that his sentence was substantively unreasonable. As he did in the district court, Gomez-Herrera asserts that several factors warranted a sentence below the Guidelines range. First, he contends that his motivation for reentry was to see his ailing father before he died. Second, he argues that he lived in the United States from the age of three months until he was deported at the age of 51, and that Mexico is an alien country and culture. This cultural assimilation, he asserts, has been recognized as supporting a downward departure. Next, he contends that the 16-level enhancement was adopted by the Commission without empirical study and that it overstated the seriousness of the offense, particularly compared to other “much more serious crimes.” For these reasons, he asserts that the sentence imposed does not properly account for the nature and circumstances of the offense or the history and characteristics of the defendant, and that it is greater than necessary to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, to protect the public and promote deterrence. Finally, he argues that the sentence subjected him to unwarranted sentencing disparity because he was
unable to avail himself of early disposition programs.

Very solid points. And here's what the court of appeals held:

As stated above [in our review of the procedural reasonableness of the sentence], the district court considered and obviously rejected these arguments as a basis for a non-Guidelines sentence. As Gomez-Herrera was sentenced within a properly calculated Guidelines range, his sentence is entitled to a presumption of reasonableness that we see no reason to disturb.

Now part of this holding may be a product of the fact that Gomez got hit with the 16-level COV bump due to a prior murder conviction. Nevertheless, the court essentially conflates procedural and substantive reasonableness, and then appears to treat the presumption of reasonableness as far more conclusive than Rita or Gall allow. If this is really what the Supreme Court had in mind, it's hard to see how Booker changed anything.