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June 4, 2008

First Circuit blesses a variance based on fast-track disparity

Thanks to this post at AL&P, I see that while I was hanging with the Sixth Circuit today, the First Circuit issued a very significant post-Gall/Kimbrough decision in US v. Rodriguez, No. 06-2656 (1st Cir. June 4, 2008) (available here).  In Rodriguez, the First Circuit abrogates an earlier ruling in which a  panel had "held that sentencing disparity attributable to the selective inauguration of so-called 'fast-track' programs for the processing of immigration crimes could not form the basis for a variant sentence."

In other words, based on the Kimbrough ruling, the First Circuit now says a district court has authority (but not an obligation) to vary based on concerns about fast-track disparity.  Here is a lengthy chunk of the First Circuit important work in Rodriguez:

Several considerations lead us to conclude that, when viewed through the prism of Kimbrough, the appellant's argument has merit.  Although Kimbrough involved the crack/powder ratio, its approach plainly has wider implications arguably affecting a number of our earlier cases, including but not limited to, how we have treated disparities arising out of the selective institution of fast-track programs. As to those programs — other cases not now before us are better left for another day — the analogy is compelling. 

Like the crack/powder ratio, fast-track departure authority has been both blessed by Congress and openly criticized by the Sentencing Commission. See United States Sentencing Commission, Report to the Congress: Downward Departures from the Federal Sentencing Guidelines 66-67 (2003) (criticizing fast-track programs for creating a "type of geographical disparity"). Like the crack/powder ratio, the fast-track departure scheme does not "exemplify the [Sentencing] Commission's exercise of its characteristic institutional role." Kimbrough, 128 S. Ct. at 575.  In other words, the Commission has "not take[n] account of empirical data and national experience" in formulating them.  Id. (citations omitted). Thus, guidelines and policy statements embodying these judgments deserve less deference than the sentencing guidelines normally attract. See id.

Given this pedigree, a sentence that is partially the product of a fast-track departure might or might not "reflect a rough approximation of sentences that might achieve § 3553(a)'s objectives." Rita v. United States, 127 S. Ct. 2456, 2465 (2007).  If raised, the sentencing court will have to answer this question in a particular case.  And where that answer is favorable to the defendant, a variant sentence premised on perceived inequities attributable to the availability elsewhere of fast-track departures would, given the Supreme Court's new gloss, seem to be entitled to deference "even in a mine-run case." Kimbrough, 128 S. Ct. at 575.

Beyond these parallels between the crack/powder ratio and the authorization for the selective institution of fast-track programs, emergent case law signals that, under an advisory guideline regime, sentencing has become a steadily more open-ended enterprise. See, e.g., Gall, 128 S. Ct. at 597 (discussing a sentencing court's superior coign of vantage "to find facts and judge their import under § 3553(a)"). Recent decisions of this court have noted this reality. See, e.g., Martin, 520 F.3d at 92; United States v. Vega-Santiago, 519 F.3d 1, 4 (1st Cir. 2008) (en banc).

Building on the foundation laid in United States v. Booker, 543 U.S. 220 (2005), Kimbrough lends a new flexibility to the scope of the district courts' sentencing authority and, in the bargain, removes a formidable obstacle to the consideration of matters such as fast-track disparity.  We refer specifically to the Kimbrough Court's enlargement of a sentencing court's capacity to factor into the sentencing calculus its policy disagreements with the guidelines. Kimbrough, 128 S. Ct. at 570.  This makes plain that a sentencing court can deviate from the guidelines based on general policy considerations. Id.

I am certain the government won't be pleased with this outcome and will seek en banc review.  Especially in light of the Rodriguez panel, I somewhat doubt the First Circuit will be eager to take this matter en banc, and it will then be interesting to see if a cert petition from the government would follow.  The Rodriguez notes its conflict with a recent Fifth Circuit ruling, and this thoughtful decision in Rodriguez might itself prompt a lot more debate of these issues in other district and circuit courts.

June 4, 2008 at 10:47 PM | Permalink


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I don't understand why Kimbrough was necessary in order for the fast-track disparity argument to have merit. Can someone please explain this to me. Booker made it clear that the guidelines were advisory, so the notion that the guidelines must be binding in the face of a policy disagreement is nonsensical. Kimbrough re-affirmed that.

On another note, it will be absolutely hilarious when the government appeals and argues against this variance on the theory that such variances will cause unwarranted sentencing disparities. Hah!

Posted by: bruce | Jun 4, 2008 11:26:08 PM


Having once been in charge of the appellate division in a United States Attorney's Office, I doubt that the government will appeal, simply because there is no longer any discernably legal standard under which a variance, up or down, can be said to be erroneous.

Advisory means advisory, and that's the end of the game. If people didn't see that in Booker, as you correctly suggest they should have, they could not possibly have missed it in Gall and Kimbrough.

Posted by: Bill Otis | Jun 5, 2008 8:57:30 PM

Yes but will they acquiesce in a cert grant when the contrary decisions are appealed from the fifth?

Posted by: RW | Jun 5, 2008 10:34:57 PM


I doubt it. It might have dawned on the Solicitor General's Office by now that, with this Court, DOJ simply is not going to win a sentencing case of any kind or description (except for death penalty cases).

When you work in the SG's Office, you have to be able to count to five. DOJ's problem is that two usually pro-government votes, Scalia and Thomas, are off the reservation and have been since Apprendi. So they can't get to five, even when Kennedy is with them.

It's time to throw in the towel. Not that it makes any difference anyway, because I think the Court has about had its run with sentencing cases, and will not be eager to wade further into the chaotic mess it has made of the entire area. Stevens's dissent on the remedial part of Booker should have prevailed -- its reasoning being indisputable -- but it didn't, so that's that.

Posted by: Bill Otis | Jun 5, 2008 11:52:14 PM

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