Eighth Circuit addresses fast-track issues (sort of)

The Eighth Circuit today in US v. Sebastian, No. 05-2002 (8th Cir. Feb. 6, 2006) (available here), affirms another within-guideline sentence and thus continues the consistent post-Booker appellate pattern of finding all guideline sentences reasonable (background here and here).  Along the way, Sebastian discusses the disparities created by fast-track programs:

Sebastian argues that the more favorable treatment of aliens with similar records and similar offense conduct in judicial districts with fast-track programs makes it unreasonable to apply the advisory range to him....

These early disposition programs do create sentence disparities among defendants with similar criminal records who commit similar offense conduct. The disparity is based solely on geography, and this has prompted complaints that "it is difficult to imagine a sentencing disparity less warranted than one which depends on the accident of the judicial district in which the defendant happens to be arrested." United States v. Bonnet-Grullon, 53 F. Supp. 2d 430, 435 (S.D.N.Y. 1999), aff'd, 212 F.3d 692 (2d Cir. 2000); see also United States v. Santos, No. 05 Cr. 522, 2005 WL 3434791, at *6 (S.D.N.Y. Dec. 12, 2005). The command that courts should consider the need to avoid "unwarranted sentence disparities," however, emanates from a statute, and it is thus within the province of the policymaking branches of government to determine that certain disparities are warranted, and thus need not be avoided.

In this instance, Congress and the President, by directing that the Sentencing Commission provide for guideline departures in certain judicial districts, "concluded that the advantages stemming from fast-track programs outweigh their disadvantages, and that any disparity that results from fast-track programs is not 'unwarranted.'"  United States v. Perez-Chavez, No. 2:05-CR-00003PGC, 2005 U.S. Dist. LEXIS 9252, at *21 (D. Utah May 16, 2005).  There may be good reasons to question this policy decision, id. at *35-38, but to require the district court to vary from the advisory guidelines based solely on the existence of early disposition programs in other districts would conflict with the decision of Congress to limit the availability of such sentence reductions to select geographical areas, and with the Attorney General's exercise of prosecutorial discretion to refrain from authorizing early disposition agreements in Eastern Missouri. The district court in this case, after considering all of the factors in § 3553(a), concluded that a sentence of 46 months was appropriate, and we do not think the sentence disparities arising from fast-track programs makes this sentence unreasonable for Sebastian.

Significantly, the Sebastian decision does not state, or even imply, that it would be unreasonable for a district judge to decide to vary from the guidelines based on fast-track disparity concerns.  Rather, Sebastian simply concludes it was not unreasonable for the district judge here to follow the guidelines.  Indeed, reading between the lines a bit, I think Sebastian could be read as suggesting district judges are permitted after Booker to adjust sentences based on fast-track disparity concerns in the right case involving the right facts.