Circuit Split on Fast-Track Disparity

Recall that a couple of months ago the Fifth Circuit held, in United States v. Gomez-Herrera, that not only are district courts not required to consider sentencing disparities created by differing fast-track policies around the country, but that it would be an abuse of discretion to do so. The court concluded that fast-track disparities aren't unwarranted because Congress sanctioned such disparities when it authorized fast-track programs in the PROTECT Act, and that, under Kimbrough, district courts aren't free to disagree with Congressional policy.

There is now a square circuit split on this issue. Yesterday, the First Circuit held, in United States v. Rodriguez,* that a district court commits procedural error if it refuses to consider fast-track disparities when imposing sentence. The court said several interesting things on the way to this holding:

• although Kimbrough dealt specifically with the crack/powder disparity, it stands for the broader proposition that sentencing courts are free to disagree with other Sentencing Commission policy determinations
• "Like the crack/powder ratio, fast-track departure authority has been both blessed by Congress and openly criticized by the Sentencing Commission."
• the fast-track departure scheme is entitled to less deference than other guidelines because by failing to consider empircal data and national experience, the Sentencing Commission didn't act in its "characteristic institutional role" in this instance
• the only Congressional policy determinations that bind sentencing courts are those that expressly cabin those courts' discretion, such as statutory maximums and minimums; absent an express Congressional statement to the contrary, district courts can independently consider any policy determination that bears on the 3553(a) factors
• Kimbrough ushered in a new approach to sentencing, such that a district court is not limited to consideration of fast-track disparities under 3553(a)(6); instead, the district court can consider such disparities as part of a holisitic consideration of the 3553(a) factors

Needless to say, Rodriguez also expressly rejects the Fifth Circuit's holding in Gomez-Herrera.

You know the drill: preserve.

*United States v. Rodriguez, No. 06-2656 (1st Cir. June 4, 2008) (Boudin, Torruella, Selya). Don't worry, Selya doesn't go too crazy with the obscure words.