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July 16, 2010

Split Sixth Circuit expressly holds that fast-track disparity is proper basis for variance

In an important ruling in favor of broad post-Booker sentencing discretion, a split Sixth Circuit panel today in US v. Camacho-Arellano, No. 07-5427 (6th Cir. July 16, 2010) (available here), holds that fast-track dispartiy provides a sound basis for a district court to vary from the immigration sentencing guidelines. Here is the start of the majority opinion in Camacho-Arellano:

Isidro Camacho-Arellano, a Mexican citizen, pleaded guilty to unlawful reentry into the United States after deportation and was sentenced to fifty-seven months of incarceration.  Camacho-Arellano seeks a remand for the district judge to consider whether to impose a lower sentence based on the disparities created by the existence of “fast-track” early-disposition programs for illegal-reentry cases in other jurisdictions.  He also argues that the district judge’s reliance on incorrect information about the prevalence of fast-track programs rendered the sentence procedurally unreasonable.  Because Camacho-Arellano was sentenced before Kimbrough v. United States, 552 U.S. 85 (2007), and because Kimbrough permits district court judges to impose a variance based on disagreement with the policy underlying a guideline (here, the fast-track disparity), we VACATE Camacho-Arellano’s sentence and REMAND the case to the district court for resentencing.

The dissenting opinion by Judge Kennedy begins this way:

Because I believe that this is not an appropriate case to determine whether, after Kimbrough v. United States, 552 U.S. 85 (2007), and Spears v. United States, 129 S. Ct. 840 (2009), a district court must consider a defendant’s argument that disparities created by some districts’ fasttrack, early-disposition programs for illegal-reentry defendants warrant a lower sentence, I must respectfully dissent.

July 16, 2010 at 10:48 AM | Permalink

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