Third Circuit Weighs In On Circuit Split Over Fast-Track Variances; Disagrees With Fifth

For over a year now, there has been a circuit split over whether a district court may vary from the advisory Guidelines range due to georgraphic disparities created by the availability of fast-track departures in some districts, but not others. Our own circuit, in United States v. Gomez-Herrera, has held 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. (Although there's potentially an argument that the Supreme Court's decision in Spears constitutes intervening Supreme Court precedent that abrogates Gomez-Herrera.) The First Circuit has decided otherwise, expressly disagreeing with Gomez-Herrera's reasoning.

As Professor Berman pointed out earlier this week, the Third Circuit has now weighed in on the matter: United States v. Arrelucea-Zamudio, No. 08-4397 (Sept. 14, 2009) (Sloviter, Ambro, Jordan). Siding with the First Circuit, Arrelucea-Zamudio points out a significant flaw in Gomez-Herrera:

Paradoxically, the Fifth Circuit Court case, Gomez-Herrera, 523 F.3d 554, which relied on the congressional policy rationale to differentiate the fast-track issue from Kimbrough, appears to have curtailed a district court’s sentencing discretion post-Kimbrough more than it had before that decision. The Court at first stated that it

"has never held that a district court may not consider and give effect to defendant’s argument for a reduced sentence on th[e] basis [of a fast-track disparity]. Rather our cases have only concluded that a district court is not required to factor in, when sentencing a defendant, the sentencing disparity caused by early disposition programs to prevent a sentence from being unreasonable."

Gomez-Herrera, 523 F.3d at 558 n.1 (internal quotations and citations omitted). Yet it went on to say that post-Kimbrough “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. . . . [This deviation] would result from an erroneous view of the law.” Id. at 563 n.4 (citation omitted). In light of Kimbrough, this statement strays from the standard set by the Supreme Court. In its sentencing cases post-Booker, the Court has been clear that a sentencing judge has discretion to impose a sentence grounded in the § 3553(a) factors regardless whether it varies from the Guidelines range. See, e.g., Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456 (2007); Gall, 128 S. Ct. at 597.

Which is not to say that the Third Circuit will allow district courts to vary willy-nilly on the basis of fast-track disparities: "A generalized argument to a district court that a defendant should be sentenced below the Guidelines range because of fast-track disparity is alone not sufficient to justify such a variance." That's because "[t]he fast-track disparity applies to a segment of immigration defendants that are unfortuitously prosecuted in non-fast-track districts (but would have qualified for fast-track treatment), whereas the crack/powder cocaine disparity applies to crack defendants across-the-board." Consequently, "[t]o justify a reasonable variance by the district court, a defendant must show at the outset that he would qualify for fast-track disposition in a fast-track district."

The Third Circuit's opinion notes that the Ninth and Eleventh Circuits have gone along with Gomez-Herrera, so we've got at least a 3-2 split on the issue. Perhaps the Supreme Court will decide it's time to step into the fray and resolve this split. There's no shortage of cert petitions presenting the issue.