Judge Presnell on fast-track disparity

With all the recent discussions of appellate decisions (Booker and otherwise), I have been hankering for some notable district court decisions, since the real Booker action takes place on a daily basis in the district courts.  Today, the always notable Judge Gregory Presnell, who has already secured a place in my Sentencing Hall of Fame, was kind enough to scratch my district court itch through his decision in US v. Delgado, No. 05-cr-30 (M.D. Fla. June 7, 2005).

Delgado is a brief decision (which can be downloaded below) that first addresses a guideline calculation issue that Judge Presnell calls "the type of mechanistic application of arbitrary sentencing Guidelines which leads to inequitable and patently unreasonable results."  But the most far-reaching aspect of Delgado, and the feature that will lead to a certain appeal to the Eleventh Circuit under DOJ's post-Booker appellate plans, is Judge Presnell's decision to address fast-track disparity:

Unfortunately (for Delgado), this district has no fast track program. If he had been arrested in Arizona, he would be eligible for a 4-level reduction.  But, having made it to Florida to find work, he is subject to a much harsher sentence.  Recognizing this disparity, two of my fellow judges have granted 4-level departures on this basis. United States v. Villalobos, 6:04-CR-206- Orl-28JGG (M.D. Fla. Apr. 18, 2005)(Antoon, J.) (oral sentencing judgment); United States v. Maldonado-Sanchez, 8:03-CR-371-T-30TGW (M.D. Fla. Jan. 30, 2004) (Moody, J.) (endorsed order). I see no reason to hold otherwise.  Accordingly, the Court will exercise its discretion to reduce Delgado's sentence by the equivalent of a 4-level departure in recognition of this sentencing disparity.

Download presnell_sentencing_opinion_us_v. Delgado.pdf