Sixth Circuit Approves of Variances Based on Fast-Track Disparity, Bringing Circuit Split On Issue to 3-3

If you handle illegal reentry cases, you're well aware of the circuit split over whether a court in a non-fast-track district may vary from the advisory Guidelines range to temper the disparity caused by the availability of such programs elsewhere. The Fifth, Ninth, and Eleventh Circuits have said no. The First and Third have said yes. Professor Berman now reports that the Sixth Circuit, with its decision in United States v. Camacho-Arellano, No. 07-5427 (June 16, 2010), has joined the ranks of the yay-sayers, bringing the split to an even 3-3. Here's Camacho-Arellano's take:

The [Fifth, Ninth, and Eleventh] circuits distinguished Kimbrough by reading it as authorizing district courts to vary based on disagreements with Guidelines policy, not based on disagreements with congressional policy. Gomez-Herrera, 523 F.3d at 559; Gonzalez-Zotelo, 556 F.3d at 740–41; Vega-Castillo, 540 F.3d at 1239. We find this distinction unpersuasive. First, the idea that Congress believes the disparity is warranted derives from the PROTECT Act, but the Act “neither forbids nor discourages the use of a particular sentencing rationale, and it says nothing about a district court’s discretion to deviate from the guidelines based on fast-track disparity.” Rodríguez, 527 F.3d at 229; accord Arrelucea-Zamudio, 581 F.3d at 151. In effect, while Congress intended to create room for courts in fast-track jurisdictions to treat defendants in a certain manner, it did nothing to prohibit judges in non-fast-track districts from treating defendants the same way.

Second, to the extent that Congress impliedly communicated that the disparity was warranted, see, e.g., Gomez-Herrera, 523 F.3d at 562, that fact does not distinguish this case from Kimbrough. There, the government had argued that by enshrining the 100-to-1 ratio in the mandatory minimum sentences of the Anti Drug Abuse Act of 1986, Congress had implicitly endorsed the disparity in the Guidelines. The Court responded that “[t]he statute says nothing about the appropriate sentence within [the specified sentencing range], and we decline to read any implicit directive into that congressional silence.” Kimbrough, 552 U.S. at 103. The Court also rejected the contention that Congress had endorsed the Guidelines’ disparity by rebuffing a 1995 proposal by the Sentencing Commission to replace the 100-to-1 ratio with a 1-to-1 ratio. Id. at 105–06. In rejecting these arguments, “Kimbrough made pellucid that when Congress exercises its power to bar district courts from using a particular sentencing rationale, it does so by the use of unequivocal terminology.” Rodríguez, 527 F.3d at 230.

Third, even if Congress could be said to have endorsed some disparity between defendants in fast-track and non-fast-track districts, it has not endorsed the further disparity that is created by charge bargaining. In some districts, instead of (or in addition to) moving for a downward departure of up to four offense levels, prosecutors will dismiss certain charges in exchange for a guilty plea. See Arrelucea-Zamudio, 581 F.3d at 152 (describing these “alternative district-wide, early-disposition programs [that] operate outside the bounds of not only the Protect Act, but also Guidelines § 5K3.1”). Surely, judges in districts in which such charge bargaining is not routine for illegal reentry defendants would be justified in imposing reduced sentences based on the disparity created by this prosecutorial practice.

(paragraph breaks added).

The Supreme Court's gonna have to take this up soon. The split is entrenched, the arguments on both sides well-developed, and the two circuits with probably the largest volume of illegal reentry cases have weighed in (and if they're wrong, that means that—five years after Booker and three years after Kimbrough—potentially thousands of defendants aren't getting sentences that comply with 18 U.S.C. § 3553(a)).