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January 9, 2009

Ninth Circuit rejects variance based on fast-track disparity

The Ninth Circuit has issued a significant ruling that rejects fast-track disparity as the basis for a variance in US v. Gonzalez-Zotelo, No. 08-50010 (9th Cir. Jan. 8, 2009) (available here).  Here is how the opinion starts:

The government appeals the 30-month sentence the district court imposed on Juan Gonzalez-Zotelo after his conviction for being a deported alien found in the United States in violation of 8 U.S.C. § 1326.  The U.S. Attorney’s Office did not offer Gonzalez-Zotelo a fast-track plea bargain because of his prior conviction for lewd and lascivious acts with a child.  The district court nonetheless gave Gonzalez-Zotelo the same sentence given earlier that day to a fast-track defendant with armed robbery priors, to promote “consistency.”  Because the district court erred when it imposed a lower sentence on Gonzalez-Zotelo based solely on what it misperceived to be unwarranted sentencing disparity, we vacate the sentence and remand for re-sentencing.  Under our cases, the disparity in question is indeed warranted, because it is justified by Congress’s approval of fast-track plea bargaining programs. This conclusion is not undermined by Kimbrough v. United States, which allows judges to disagree with Guidelines sentencing policy, not with congressional sentencing policy.

The Ninth Circuit opinion notes that its work in Gonzalez-Zotelo is in accord with opinions from the Fifth and Eleventh Circuits, but in tension with an opinion from the First Circuit.

January 9, 2009 at 01:17 AM | Permalink


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It's an oddly empty opinion.

This is a very live issue, and yet the court treats it like an easy question that is decided by precedent from 2006. There's almost no discussion of the open circuit split, or of Kimbrough. The 5th Cir took the same position in Gomez-Herrera, but at least they spent some serious time on the hard issues.

I hope this goes en banc and gets better treatment.


Posted by: Tom Gorman | Jan 9, 2009 12:44:11 PM

30 months? For an animal who molested some kid and then was deported and found back in the US? The penalty for this crime should be LWOP. Same goes for the armed robber found back in the US. Why in the world do we as a society tolerate recidivist alien criminals? Tell you what, Tom, when he gets out and is again deported and comes back to the US, he can live next door to you.

Posted by: federalist | Jan 9, 2009 4:37:45 PM

I'm perfectly fine with the outcome of the case. I think this is a hard issue that can be cogently and defensibly argued on both sides. I tend to think that Kimbrough is broader than the 11th, 5th and now 9th Circuits have read it, but that's just my personal opinion.

My problem with this opinion is not the outcome. I just think the court should have spent more time weighing all the sides of this very tricky legal issue. It's a live circuit split, whose two main poles are backed by incredibly long and thoughtful arguments. It deserved more attention, I thought.

Posted by: Tom Gorman | Jan 10, 2009 11:51:36 AM

You may be fine with the outcome, but this guy will victimize again, and that person probably won't be. That federal district judge really blew it with the 30 month sentence.

Posted by: | Jan 10, 2009 1:00:33 PM

You may be perfectly fine with the outcome, but this guy will victimize again. A federal judge has the opportunity to put a child molester away for a while and only gives him 30 months? And out of some concern for fairness? What idiocy.

Posted by: federalist | Jan 10, 2009 1:03:20 PM

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