Thursday, July 20, 2006

Refusal to Consider Fast-Track Disparities Doesn't Make Guideline Sentence Unreasonable

United States v. Aguirre-Villa, No. 05-50978 (5th Cir. July 18, 2006) (per curiam)

In Aguirre-Villa the Fifth Circuit joins a number of other circuits that have addressed the issue, and holds that a district court's refusal to take fast-track disparities into account will not render the resulting sentence unreasonable, notwithstanding § 3553(a)(6)'s command for district courts to consider the need to avoid unwarranted sentencing disparities.

A few districts around the country have "fast-track" programs under which defendants charged with certain offenses (usually immigration offenses) can obtain sentence reductions by agreeing to plead guilty early in the process (and which usually require the waiver of a whole host of other rights, including the right to appeal). The sentence reductions are achieved either by 1) reducing the statutory maximum via charging relief, or 2) granting a guideline departure of up to 4 levels under a §5K3.1-sanctioned early disposition program. However, only a few districts have fast-track programs (mostly southwestern border districts), and there is a great deal of variation from one district to the next in the particulars of each program. There is even intra-district variation: in some districts the fast-track program is only available in certain divisions, and even then one division's fast-track program can be different from another's.

These geographic variations can and do lead to wildly disparate sentences, particularly in illegal reentry cases, based on nothing more than the particular district and division in which defendants are prosecuted. Such a result would seem to run afoul of the statutory mandate for district courts to impose a sentence "sufficient, but not greater than necessary" to comply with, among other things, "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct[.]" 18 U.S.C. § 3553(a)(6).

Many illegal reentry defendants have been making this argument in the wake of the Booker decision, and that's the argument that Aguirre made in this case. Aguirre pled guilty to illegal reentry in the Western District of Texas, which had no fast-track program. His guideline range, under U.S.S.G. §2L1.2, was 77 to 96 months. He argued for a lower sentence on the ground that had he been prosecuted in the adjacent District of New Mexico, which did have a fast-track program, his guideline range would only have been 52 to 78 months. The district court rejected Aguirre's argument, and sentenced him to 77 months.

Aguirre challenged the reasonableness of his sentence on appeal, arguing that it "failed to reflect the need to avoid a sentence disparity among defendants convicted in districts with early disposition programs and defendants convicted in districts without such programs." Slip op. at 3.

The court of appeals, following the lead of a number of other circuits, rejected Aguirre's argument:

The refusal to factor in, when sentencing a defendant, the sentencing disparity caused by early disposition programs does not render a sentence unreasonable. Section 3553(a)(6) is but one factor in a list of factors to be considered; moreover, the U.S. Sentencing Commission must have thought the disparity warranted when it authorized early disposition programs without altering § 3553(a)(6).

Slip op. at 4. The court also noted that even if an early-disposition departure had been available to Aguirre, his 77-month sentence would still have fallen within the resulting 52- to 78-month range. The presumption of reasonablness for guideline sentences therefore carried the day, and the court affirmed Aguirre's sentence.

Can this be right? Have Congress and the Sentencing Commision really authorized substantial geographic disparities in a sentencing scheme crafted, in large part, to combat geographical disparities?


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