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April 3, 2008

Fast-track fast talk from the Fifth Circuit

The Fifth Circuit this week discussed fast-track programs and their impact on non-fast-track defendants at some length in US v. Rodriguez, No. 07-10535 (5th Cir. Apr. 1, 2008) (available here).  Here is one notable passage from the opinion:

Rodriguez asserts that Rita v. United States, 127 S. Ct. 2456 (2007) and Kimbrough v. United States, 128 S.Ct 558 (2007), undermine the line of cases that concluded that Booker, which made the Guidelines purely advisory, did not give sentencing courts the discretion to impose a non-Guidelines sentence based on disagreement with Congressional and Sentencing Commission policies such as allowing some districts to have fast-track programs while others do not.  For the reasons set forth in United States v. Gomez-Herrera, No. 07-10153, decided this day, we reject this argument. Rita and Kimbrough allow a district court to impose a non-Guideline sentence based on disagreement with Guideline policy that results in a sentence greater [and presumably less] than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).  Any sentencing disparity resulting from the implementation of fast track programs in some but not all sentencing jurisdictions results from Congressional, not Guideline, policy. Accordingly, the sentencing disparity is not “unwarranted” within the meaning of 18 U.S.C. § 3553(a)(6).

Aside from the merits of the Rodriguez ruling, I am wondering if the Fifth Circuit was getting into the April Fool's spirit here because I now cannot seem to find the referenced decision in United States v. Gomez-Herrera, No. 07-10153.  The reference above suggests that fast-track issues are discussion more fully in this other Fifth Circuit ruling, but as of this writing I cannot find the ruling anywhere on the Fifth Circuit website.  Perhaps fast-track gremlins made fast work of the decision.

April 3, 2008 at 07:08 AM | Permalink

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Comments

Isn't "Sentencing Commission policy" the same thing as "Guideline policy"?

Posted by: bruce | Apr 3, 2008 9:30:15 AM

The panel got it wrong. The premise for the holding is that: "Any sentencing disparity resulting from the implementation of fast track programs ... results from Congressional, not Guideline, policy." But deciding WHERE fast track is permitted is NOT a Congressional policy, but rather an AG policy. As a result, the specific resulting geographic disparity is not created by Congress.

True, Congress has authorized the creation of fast-track programs. But the AG authorizes in which specific districts it will be permitted. See USSG §5K3.1("early disposition program authorized by the Attorney General of the United States"). The AG's specific decision could still create "unwarranted" geographic disparity, even though Congress generally authorized the program.

In other words, Congressional authorization does nothing to preclude a Court from considering whether the AG's decision creates an unwarranted geographic, inter-district sentencing disparity. This is especially true when one considers that districts such as Idaho and Nebraska have fast-track.

Also consider that the Commission itself has asserted that fast track "appears to be at odds with the overall Sentencing Reform Act goal of reducing unwarranted sentencing disparity among similarly-situated offenders." USSC, Downward Departures from the FSG at 67 (Oct. 2003).

Posted by: DEJ | Apr 3, 2008 12:19:32 PM

Isn't the point of the Booker remedial opinion that district courts have to have the ability to vary from Congressional sentencing policy if there is to be 1) a constitutional sentencing regime and 2) a uniform sentencing regime rather than a piecemeal system of Congressional sentencing mandates that apply only where the sixth amendment is not involved. In other words, wasn't 3553(b) Congressional policy?
Anyone think this is a good cert candidate?

Posted by: joel | Apr 3, 2008 4:41:16 PM

Yes, it looks like the Fifth has created another Kimbrough, just as the Fourth did the other day in Ibanga. Once again, these circuits simply refuse to follow the law.

Posted by: abe | Apr 3, 2008 10:15:02 PM

Yes, it looks like the Fifth has created another Kimbrough, just as the Fourth did the other day in Ibanga. Once again, these circuits simply refuse to follow the law.

Posted by: abe | Apr 3, 2008 10:15:30 PM

Judge Davis's opinion in Gomez-Herrera appeared Thursday, here:

http://www.ca5.uscourts.gov/opinions/pub/07/07-10153-CR0.wpd.pdf

Posted by: Jay | Apr 4, 2008 2:45:35 AM

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