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September 14, 2009

Third Circuit approves of fast-track variances based on Kimbrough

In what looks to be a long and thoughtful opinion, the Third Circuit today in US v. Arrelucea-Zamudio, No. 08-4397 (3d Cir. Sept. 14, 2009) (available here), has ruled that federal sentencing judges in non-fast-track districts can grant fast-track variances. Here is the start of today's must-read federal sentencing opinion:

In certain federal judicial districts, “fast-track” programs allow qualifying immigrant defendants to plead guilty while waiving, among other things, their appellate and post-conviction rights.  In turn, the Government agrees to request a departure from the relevant Sentencing Guidelines range.  None of the districts in the Third Circuit is a fast-track district.

Pedro Manuel Arrelucea-Zamudio (“Arrelucea”) pled guilty to illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2).  The District Court sentenced him to 48 months’ imprisonment. Arrelucea appeals his sentence, challenging, among other things, the Court’s rejection of his argument for a downward variance based on the disparity in sentencing among immigration defendants in fast-track districts and non-fast-track districts.  The Sentencing Guidelines are advisory, and the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558 (2007), has rekindled discussion regarding fasttrack districts and sentencing. The question before us is whether, post-Kimbrough, it is an abuse of a sentencing judge’s discretion to consider varying from the Sentencing Guidelines in a non-fast-track jurisdiction based on the disparity created by lower immigration sentences in fast-track jurisdictions.  Prior to Kimbrough we addressed this issue in United States v. Vargas, 477 F.3d 94 (3d Cir. 2007).  We take this opportunity to clarify Vargas and expand on the issue in light of the Supreme Court’s recent guidance.  We conclude that, under the logic of Kimbrough, it is within a sentencing judge’s discretion to consider a variance from the Guidelines on the basis of a fasttrack disparity.

September 14, 2009 at 06:01 PM | Permalink


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at least 2 cases presenting the fast-track issue to scotus for the Long conference.

Posted by: Texas Lawyer | Sep 14, 2009 10:09:10 PM

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