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August 19, 2008

Eleventh Circuit panel splits over whether Kimbrough now allows consideration of fast-track disparity

A split decision today from the Eleventh Circuit in US v. Vega-Castillo, No. 07-12141 (11th Cir. Aug. 19, 2008) (available here), spotlights an important post-Kimbrough issue that arguably has already created a circuit split.  The first two paragraphs of the majority's per curiam opinion sets up the issue effectively:

Appellant Victor Gonzalo Vega-Castillo appeals his 70-month sentence following a plea of guilty to reentering the United States illegally after having been deported or removed, in violation of 8 U.S.C. § 1326(a)(1), (b)(2).  Before the district court imposed his sentence, Vega-Castillo asked the district court to vary downward from his applicable sentencing range of 70 to 87 months imprisonment based on the fact that the district in which he was indicted on the present charge — the Northern District of Georgia — did not employ an early disposition program, and this resulted in an unwarranted sentencing disparity that should be considered pursuant to 18 U.S.C. § 3553(a)(6).

On appeal, Vega-Castillo requests that this court remand his case to the district court for resentencing and order the district court “to consider the disparity caused by nationally disparate ‘fast-track’ sentencing when considering the factors in 18 U.S.C. § 3553(a).” Vega-Castillo recognizes that we previously held in United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) that “section 3553(a)(6) does not require the district court to depart based on the availability of the [fast-track] departure in only some districts,” but argues that this decision has been overruled by Kimbrough v. United States, 128 S. Ct. 558 (2007).

The issue of fast-track disparity and post-Booker analysis is, in my mind, even harder than crack/powder disparity issues.  I am not surprised that this issue has split this Eleventh Circuit panel, though I am surprised that only a few circuits have weighed in on this issue in the nine months since Kimbrough came down.  Even though I suspect the Supreme Court is now very tired of post-Booker debates, the Justices may have to take up fast-track disparity issues sooner or later.

August 19, 2008 at 11:52 AM | Permalink


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Acquitted/uncharged conduct and prior convictions are far bigger issue for a cert. grant.

Posted by: S.cute.us | Aug 19, 2008 12:35:27 PM

The issues you spot are more consequential and/or "bigger" for a variety of reasons, but they lack the crisp split that this fast-track issue is likely to present.

Posted by: Doug B. | Aug 19, 2008 1:03:39 PM

Acquitted conduct has marquee value but it doesn't effect more than a handful of defendants while "fast track" has the ability to effect tens of thousands (a quarter of the docket is immigration). But "fast track" could be much trickier. Unlike relevant conduct rules that come from the Commission, "fast track" is clearly a congressionally mandated disparity.

This might be the extra few feet of rope the judiciary needs to hang itself and cause Congress to finally wake up.

Posted by: Careful What You Ask For... | Aug 19, 2008 1:20:49 PM

Here's some interesting data in light of the policy behind fast track being to allow prosecutors in border districts to move cases.

In 2007, the government moved for early disposition departures in twenty districts, both on and off the border, in districts with and without heavy immigration caseloads. See USSC, 2007 Sourcebook of Federal Sentencing Statistics, Appendix B, http://www.ussc.gov/ANNRPT/2007/SBTOC07.htm. That's great if the government moves for it in your client's case, perhaps recognizing that the guideline sentence under 2L1.2 is just too long. And why are those sentences so long? So the government can use fast track departures to induce quick guilty pleas.

Although Congress ordered the Commission to create the 5K3.1 guideline, it did not order judges not to alleviate unwarranted disparity.

Posted by: abe | Aug 19, 2008 6:47:12 PM

Here is the issue: it is one thing if pre-Kimbrough law said that a district court could never CONSIDER (let alone GRANT) a variance on that basis. But Kimbrough cannot and does not obligate district courts to GRANT such variances. So, this defendant can make his pitch on remand, and if the District Court exercises its discretion and declines to grant the variance, he has no claim on appeal that his sentence is substantively unreasonable. Put another way, no district court is obligated to grant a requested variance.

Posted by: Da Man | Aug 20, 2008 11:52:27 AM

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