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September 15, 2006

Eleventh Circuit reverses variance based on fast-track disparity

The Eleventh Circuit today in US v. Arevalo-Juarez, No. 05-16313 (11th Cir. Sept. 15, 2006) (available here), reverses a sentence which was set "below the Guidelines range to alleviate sentencing disparities associated with the unavailability of early disposition or 'fast-track' programs in the Southern District of Georgia."  Here are snippets from an important ruling on an important issue:

[I]t was impermissible for the district court to consider disparities associated with early disposition programs in imposing Arevalo-Juarez's sentence, because such disparities are not "unwarranted sentencing disparities" for the purposes of § 3553(a)(6).... A fast-track guidelines reduction was specifically authorized by Congress because of the perceived unique and pressing immigration problems in certain districts.... Plainly, Congress contemplated that discrepancies would arise because it structured the law the way it did.

Concurring, Judge Wilson stresses the precise nature of the court's ruling:

I write separately to emphasize that we make no determination as to whether Arevalo-Juarez's thirty-month sentence is reasonable in this case.  After Booker, the ultimate determination in reviewing a sentence on appeal is reasonableness.  Sentencing courts are free to depart from the advisory guidelines range so long as the sentence is reasonable based on a "proper consideration" of the section 3553(a) factors. Here we make no determination as to the reasonableness of Arevalo-Juarez's sentence, rather we find that the trial court based the sentence on an improper consideration by downward departing solely on the basis of the fast-track disparity.

September 15, 2006 at 11:46 AM | Permalink

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