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May 15, 2009

The latest briefing on fast-track disparity after Kimbrough

One of the most interesting and dynamic post-Booker issues still percolating in the lower courts concerns whether defendants who are not within so-called "fast-track" districts should be eligible for comparable early plea sentence reductions when their cases are factually similar to those who get the benefit of such reductions in "fast-track" districts.  Before Kimbrough, the circuits had generally ruled that district courts lack discretion to provide such reductions without the blessing of the government.  After Kimbrough, this issue has divided the circuits. 

A helpful reader sent me a copy of a thorough and thoughtful brief on this fast-track disparity issue that was filed in the Seventh Circuit earlier this week.  Here is how the appellate issue is presented in this brief (which can be downloaded below):

Whether the district court committed reversible procedural error when it determined that Seventh Circuit precedent precluded it from considering the sentences given in fast-track districts as part of its 18 U.S.C. § 3553(a) analysis, despite intervening Supreme Court decisions that abrogated the Seventh Circuit’s precedent.

Download Fast-Track Seventh Circuit Brief w Appendices

I am pleased to report that the Federal Sentencing Reporter is in the midst of putting together an issue reviewing the recent past and current debate over fast-track sentencing discounts.  This FSRfast-track issue ought to be out early this summer, though I am wondering if DOJ's working group on sentencing issues will be suggesting some new  fast-track policies even before that issue goes to press. 

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May 15, 2009 at 01:33 PM | Permalink


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This brief is really top-notch stuff. I think they teed up the issue very nicely.

Posted by: Adam Kirgis | May 15, 2009 3:38:22 PM

I wonder-- with a Criminal History Category of VI and a +16 prior, what are the chances that any judge in the ND Illinois would actually impose a lower sentence if the appeal were successful?

I agree with the argument that the Court should consider the fast-track disparity under 3553(a)(6), but I think it's a pretty narrow issue that will help very few illegal-reentry defendants. Just my two cents.

Seems a like a lot of sizzle for very little steak.

Posted by: Jimmy | May 15, 2009 5:07:47 PM

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