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.)

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)).

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.