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July 1, 2006

Fourth Circuit finds fast-track variance unreasonable

While I was making a fast-track departure to the golf course Friday afternoon, the Fourth Circuit in US v. Perez-Pena, No. 05-5054 (4th Cir. June 30, 2006) (available here), ruled that a variance based on fast-track disparity is unreasonable.  Here are some key passages from the opinion authored by Judge Wilkins, the first Chair of the US Sentencing Commission:

The Government first argues that the district court erred to the extent that it imposed a below-guidelines sentence to account for sentences received by defendants participating in fast-track programs.  We agree....

There is no denying that Congress has decided that governmental law enforcement or administrative concerns warrant sentencing disparities between defendants with similar criminal conduct and records, under some circumstances.... Defendants who are fortunate enough to be able to offer the Government what it wants can obtain reduced sentences not because they deserve the reductions, but because the reductions are the leverage that allows the Government to get what it wants. Thus, the resulting reductions (and disparities with otherwise similarly situated defendants) serve an important purpose.... 

[C]omparing the sentences of defendants who helped the Government to those of defendants who did not—regardless of why some were in a position to help and others were not—is comparing apples and oranges.  For this reason, Congress could not have intended that disparities resulting from the exercise of prosecutorial discretion could be determined to be "unwarranted."...

In short, there is no reason to believe that Congress intended that sentencing disparities between defendants who benefitted from prosecutorial discretion and those who did not could be "unwarranted" within the meaning of § 3553(a)(6).  We therefore conclude that the need to avoid such disparities did not justify the imposition of a below-guidelines variance sentence.

July 1, 2006 at 08:10 AM | Permalink


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