Thread: Fast-track departures authorized

Fast-track departures authorizedPOSTED: Thursday, October 14th, 2010 at 11:04 am
BY: David Ziemer

Shorter prison sentences for illegal aliens convicted of illegal re-entry after deportation are on the way.

Judges in districts without fast-track programs may now consider the disparate treatment of defendants in districts with fast-track programs in deciding to grant a below-guideline sentence to such defendants.

In so holding, the Seventh Circuit overruled its prior precedent holding to the contrary in U.S. v. Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006).

In 2003, Congress authorized the Attorney General to establish fast-track programs, which, in essence, permit a more lenient sentence to those charged with illegal re-entry, in exchange for pre-indictment guilty pleas and appeal waivers.

U.S.S.G. 5K3.1 was created by the Sentencing Commission to implement the law.

However, no district within the Seventh Circuit has such a program.

Jaime Reyes-Hernandez and Pedro Sanchez-Gonzalez were both charged in federal court with re-entering the United States after removal. Both sought below-guideline sentences, because the absence of a fast-track program in the district created disparity with the sentences of defendants in districts that had such programs.

Consistent with Galicia-Cardenas, the district court judges concluded they lacked authority to impose below-guideline sentences on that basis.

Reyes-Hernandez and Sanchez-Gonzalez appealed and the Seventh Circuit vacated their sentences in an opinion by Judge Michael S. Kanne.

The court concluded that its opinion in Galicia-Cardenas had been effectively overturned by the Supreme Court in Kimbrough v. U.S., 552 U.S. 85 (2007).

In Kimbrough, the Supreme Court held that a district court could impose a below-guideline sentence in a crack cocaine case, based on the court’s disagreement with the 100-to-1 ratio for crack and powder cocaine.

Since Kimbrough, the Seventh Circuit has held that district judges are at liberty to reject any guideline on policy grounds.

The court concluded that that reasoning permits a sentencing court to consider the absence of a fast-track program as well.

The court acknowledged that, since Kimbrough was decided, it has continued to follow its precedent in Galicia-Cardenas, in U.S. v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007).

However, the court found that, in Pacheco-Diaz, the court’s reasoning rested entirely on pre-Kimbrough cases, without addressing Kimbrough.

Examining the question anew, the court concluded that the district courts could have granted the below-guideline sentences the defendants sought.

The directive that Congress issued to the Sentencing Commission, the court concluded, is not a statute, and thus is not binding on sentencing courts. On the contrary, the court concluded that when a guideline is not the result of the Commission implementing a guideline based on empirical data, it should be given less deference, rather than more.

Looking to the language of the directive itself, the court concluded, “While Congress ‘explicitly’ gave the Attorney General the ability to establish early disposition programs district by district, and instructed the Sentencing Commission to promulgate a guideline to implement those programs, it certainly did not explicitly forbid non-fast-track districts from taking into account the effect of fast-track dispositions under the sec. 3553(a) factors.â€

I have mixed feeling on this. On the one hand, we'll have to pay less for their incarceration. On the other hand, they can come back that much sooner. I believe a longer prison sentence (preferably with Sheriff Joe) will be more of a deterent to returning.