Wednesday, October 13, 2010
From guest blogger, Professor Evelyn Cruz, Arizona State University:
U.S. v. Reyes-Fernandez (No09-1249)
U.S. v. Sanchez-Gonzalez (No. 09-1551)
2010 U.S. App. LEXIS 20709 (7th Cir. 2010)
Decided Oct. 7, 2010
Facts: Mr. Reyes-Hernandez plead guilty to illegally re-entering the United States after been removed twice following a conviction an aggravated felony (robbery). He was sentenced to forty-one months –the lowest available sentence under the guidelines. Mr. Sanchez-Gonzalez also plead guilty to illegal reentry after previously been removed for an aggravated felony conviction (domestic violence). He was sentenced to seventy-seven months imprisonment, the lowest available sentence under the guidelines. In a district operating under the “fast-track” program the judge could have considered imposing sentences below the applicable guidelines. However, the judge in the non fast-track district hearing their cases refused to consider imposing a sentence below the guidelines. Mr. Reyes-Hernandez and Mr. Sanchez-Gonzalez’s cases were consolidated as they raised the same question—should the district court be able to consider fast-track disparities as part of their sentencing analysis?
Holding: The absence of a fast-track program and the resulting difference in the guidelines should not be categorically excluded as a sentencing consideration. (LEXIS, 20709, 41) The sentences of Mr. Reyes-Hernandez and Mr. Sanchez-Gonzalez were vacated, and the cases were remanded for re-sentencing consistent with the holding.
Summary: Many federal district courts near the border operate under “fast-track” programs to process unlawful re-entry cases. U.S. attorneys offer more lenient sentences in exchange for pre-indictment guilty pleas and waivers of appellate rights. According to the court, federal prosecutors have used such negotiated pleas since roughly 1994. In 2003, Congress formalized the practice as part of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act of 2003. (Pub L. No. 108-21) Congress authorized the Attorney General to set up a district-by-district fast track program and to develop sentencing guidelines specifically for fast-track programs. Currently, a defendant in a fast-track district may be able to receive a lower sentence of up to four levels, than he/she would in a non-fast track district.(USSG §5K3.1) According to the Seventh Circuit as of 2008 there were 20 fast track programs in operation at district courts, and 16 of these districts use the procedure for illegal re-entry prosecution. (LEXIS 20709, 15) There are no fast-track programs in operation in the Seventh Circuit.
As to the question in hand, the court pointed out that there is no clear answer as to whether or not the absence of a fast-track program can be a factor in sentencing. The Supreme Court has not taken the opportunity to address it, and there are conflicting decisions amongst the circuits. The Fifth, Eleventh, and Ninth Circuits have held that the disparity is constitutional; the First, Third, and Sixth Circuits have held otherwise. The Department of Justice Sentencing Commission Report acknowledged that individuals in non-fast-track district receive disparate sentences, but discouraged non-fast-track districts compensating for the disparity through downward departures from the guidelines. (LEXIS 200709, 12)
Nevertheless, U.S. v. Booker, 543 U.S. 220, 2005 (Sentencing guidelines are advisory only), Gall v. U.S. 552 U.S. 38, 2007 (guidelines are not presumptively reasonable) and Vazquez v. U.S. 130 S. Ct. 1135 (2010)(courts do not need congressional directive in order to vary from the guidelines) all strongly point against the notion that district courts are bound to follow the guidelines.
The Seventh Circuit concludes that, “If Congress wanted to prohibit judges in non-fast-track districts from disagreeing with §5K3.1 based on policy, Congress could have issued such a directive in unequivocal terminology.”(LEXIS 20709, 33) Therefore district judges in the Seventh Circuit should treat §5K3.1 as a guideline not as a statute. Consequently, sentencing judges are permitted to consider a facially obvious disparity created by fast-track programs among the totality of the sentencing factors considered. However, the Seventh Circuit warned that districts should not interpret this to mean that they can operate as defacto fast-track courts.