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May 16, 2005

Judge Cassell on fast-track and family circumstances

When I saw news last week, as detailed here, that US District Judge Paul Cassell had departed based on family circumstances and also expressed concern that some Utah defendants receive longer sentences than those charged with identical crimes in districts with fast-track programs, I thought we might soon see another thoughtful post-Booker opinion from his chambers.  And sure enough, US v. Perez-Chavez, No. 2:05-CR-00003PGC (D. Utah May 16, 2005), is another great Cassell effort (which can be downloaded below).  Here is the introduction:

Should a defendant arrested in Utah serve a longer prison term than a defendant arrested in Arizona for the identical crime?  That is the issue pending before the court as a result of various "fast-track" programs for the rapid disposition of illegal re-entry cases. Under these programs, a defendant arrested for illegal re-entry in the District of Arizona, the Southern District of California, or other "fast-track" jurisdictions who enters a rapid guilty plea is given a shorter sentence than otherwise called for by the Sentencing Guidelines. Because this sentence disparity is troubling, the court has raised the issue of whether the defendant here — Mr. Raul Enrique Perez-Chavez — should be eligible to receive the same shorter sentence that would result in a fasttrack jurisdiction.

Having received capable argument from both sides on this question, the court reluctantly concludes that it cannot vary from the Guidelines and give Mr. Perez-Chavez the shorter sentence he would receive in Arizona and other fast-track districts.  To do so would be to ignore the recent congressional directive, contained in the PROTECT Act, that only the Attorney General can authorize fast-track programs.  This command is now reflected in the Sentencing Guidelines themselves, which provide for the downward adjustments under Attorney Generalapproved fast-track programs, but not elsewhere.  Moreover, while these programs clearly result in sentencing disparity between similarly-situated offenders, they also assist the Department of Justice (and the courts) in quickly processing large numbers of illegal re-entry cases.  Congress could reasonably conclude that these benefits outweigh the attendant disparities in sentencing. Finally, nothing in the Constitution prohibits different sentences resulting from fast-track programs, as these differences arise from prosecutorial discretion rather than invidious discrimination.  For all these reasons, the court will apply the Sentencing Guidelines in this case and not vary downward to attempt to match fast-track dispositions that might be available in other jurisdictions.

At the same time, however, the court encourages the Justice Department to attempt to minimize the disparities caused by these programs. In the court's view, the Department should consider whether to extend these programs across the country rather than applying them in a few selected districts.  Based on the information that has been presented in this case, it is hard to see any real justification for having fast track programs in only selected jurisdictions.

While a fast-track adjustment is not appropriate in this case, Mr. Perez-Chavez has also moved for a downward departure based on the extraordinary family circumstances that prompted his illegal re-entry into the country.  This argument is well-founded and the court will accordingly depart downward from the Guidelines for this reason.

Download cassell_fasttrack_opinion.pdf

May 16, 2005 at 09:06 PM | Permalink


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"Nothing in the Constitution prohibits it..." Except the separation of powers doctrine, right? Prosecutorial discretion is confined to the executive branch function regarding what to prosecute. Application of a downward departure (for fast track or anything else) is a sentencing decision, which cannot constitutionally be solely within the purview of the executive branch. I'm unaware of any analogue in the entire guidelines. Even the existence of substantial assistance to the government under section 5K is not an executive decision -- the prosecutor makes a recommendation, but the decision is with the judiciary.

Posted by: Bob Jenkins | May 17, 2005 6:17:33 PM

California resident. My husband will be going before the fast track court on 2/22/06. He was arrested for posession of meth and has done 5 prison terms for the same thing. The regular court offered 2 years. I'm wondering if the court would possably grant a live in drug program if we paid for it ourselves. Or do they have guidelines they have to follow. We were told that the fast track court would be the best and least sentence he could get. I would just like some feed back on this as this is the only site that I could find that talks about the fast track couts. thank you

Posted by: kat | Feb 18, 2007 3:32:48 AM

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