Eleventh Circuit's Judge Carnes notes interest in fast-track disparity issue

Today in a thoughtful separate opinion concurring in the denial of en banc review in US v. Vega-Castillo, Judge Carnes of the Eleventh Circuit adds some terrific juice to an important post-Kimbrough federal sentencing issue.  Here are notable snippets from the notable opinion:

I concur in the denial of rehearing en banc but might vote to carry en banc a case that more clearly presents the issue of whether sentencing disparities arising from the location of fast track or early disposition programs may justify a 18 U.S.C. § 3553(a) variance....

The argument in favor of permitting a variance is that defendants in thirteen or so of the federal districts around the country are earning early disposition sentencing departures, up to four levels, that defendants in the other eighty-one districts are not eligible to receive.  See generally U.S.S.G. § 5K3.1. The argument derives its force from the notion that two defendants with essentially the same sentencing profile and post-charge conduct should not be treated differently merely because of the part of the country where they committed their crime.  If a defendant in New Mexico gets a lower sentence because he meets the early disposition criteria, then a materially identical defendant in Florida who meets those same criteria (except for where he is located) ought to get one, too.  Or, at least, the sentencing judge in Florida ought to be allowed to vary downward in calculating the sentence in order to even things up.  That is the argument; that is the issue.  Our Castro and Llanos-Agostadero decisions rejected that argument but then came Kimbrough.  If Kimbrough has not revived the issue, it has at least put a few post-mortem twitches in it that might justify a fresh look en banc....

Because of Vega-Castillo’s criminal record, his failure to offer to waive his right to attack his conviction in a § 2255 proceeding, and his failure to offer to waive his right to appeal his sentence except for the issue at hand, his case does not adequately present the issue of whether a district court may, in an appropriate case, vary downward under § 3553(a) to eliminate disparities caused by the location of fast-track or early disposition programs.