Wednesday, February 01, 2012

Fast-Track Going Nationwide

So you're probably aware of the circuit split over whether a court in a district without a fast-track disposition program may vary downward from the advisory range in order to avoid unwarranted sentencing disparities with defendants sentenced in districts that do have such programs. Despite many opportunities, the Supreme Court has declined to take up the issue. But now we learn, via Professor Berman, that a resolution is at hand, and from an unlikely source, no less: the Department of Justice.

Behold a January 31, 2012, memo from Deputy Attorney General James Cole to all United States Attorneys: "Department Policy on Early Disposition or 'Fast-Track' Programs". It requires all districts that prosecute illegal reentry cases to establish a fast-track program by March 1, 2012, and sets forth baseline eligibility requirements for defendants and minimum requirements for the plea agreement.

As for eligibility, local U.S. Attorneys have discretion to limit or deny a defendant's participation in a fast-track program for various reasons, such as the number of times a defendant has been deported or convicted of illegal reentry and other immigration offenses, and whether a defendant has a prior "violent felony" conviction (which is defined paradoxically to include such non-violent offenses as drug trafficking and firearms offenses).

So what's a defendant got to do to get the deal? Agree to enter into a plea agreement within 30 days of being taken into custody on the charge. (Note that the memo appears only to require an agreement to agree; it does not require that the defendant actually plead guilty within 30 days, something that may not be possible due to circumstances beyond the defendant's control.) The agreement must include, at a minimum:
  • that the defendant "agree[ ] to a factual basis that accurately reflects his or her offense conduct and stipulates to the facts related to the prior conviction and removal;"
  • that the defendant agree not to file any of the pretrial motions listed in Fed. R. Crim. P. 12(b)(3) (motions challenging indictment defects, to suppress evidence, for discovery under Rule 16, etc.); and
  • consistent with local law, policy, and practice, waivers of the rights to seek a variance from the advisory range and to appeal and to seek collateral review via 28 U.S.C. § 2255 (except on grounds of ineffective assistance of counsel).
Local U.S. Attorneys have discretion to impose additional procedural requirements; "specifically, the United States Attorney has discretion to require that the defendant agree to enter into a sentencing agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C), and/or to waive a full pre-sentence investigation as conditions of participation."

What's a defendant get in exchange? A government motion at sentencing, pursuant to U.S.S.G. §5K3.1, for four levels off. EXCEPT for defendants in Criminal History Category VI "or with at least one felony conviction for a serious violent offense." Cat VI-ers appear to be categorically barred from receiving a fast-track deal. As for the SVO group (a term that isn't actually defined in the memo, although it presumably relates to the "violent offense" term in the eligibility requirements), they only get a motion for two levels, and only "with supervisory approval and on a case-by-case basis after considering the interest of public safety."

To repeat: this is just the floor. Eligibility in a given district or division may be available to a smaller class of defendants than authorized by the memo, and the plea agreement may require more stuff. And don't forget that the district court will have to be on board with this; fast-track departures under §5K3.1 aren't mandatory, and depending on the nature and terms of the plea agreement, the defendant may not be allowed to withdraw his plea if the court refuses to go along.

Now you're probably wondering why DOJ decided to do this. According to the memo, there's several reasons. For one thing, "these programs address a compelling, and otherwise potentially intractable, resource issue." (Translation: we've got bigger fish to fry.) For another, fast-track programs spread to some non-border districts after the 2003 Ashcroft Memo on the subject, even though they're not available in some border districts where the need for fast-track arose in the first place. "The existence of these programs in some, but not all, districts has generated a concern that defendants are being treated differently depending on where in the United States they are charged and sentenced." (Translation: this situation really is untenable and it's getting harder and harder for the SG to tell the Supreme Court with a straight face that it's not a problem worth addressing.) Finally, because of the circuit split, "USAOs in non-fast-track districts routinely face motions for variances based on fast-track programs in other districts. Courts that grant such variances are left to impose sentences that introduce additional sentencing disparities." (Translation: if it's gonna happen, we want it to happen within the Guidelines framework, not as a variance.)

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