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July 20, 2011

Significant new fast-track disparity ruling from Seventh Circuit

A Seventh Circuit panel has handed down an interesting and important new ruling about fast-track disparity sentencing consideration in US v. Ramirez, No. 09-3932 (7th Cir. July 20, 2011) (available here). Here is how the decision starts:

We have consolidated these appeals to answer a recurring question: What evidentiary showing must a defendant charged with being found in the United States after previously having been deported, 8 U.S.C. § 1326(a), make before a district court is obliged to consider his request for a lower sentence to account for the absence of a fast-track program in that judicial district?  The question has been percolating since we decided United States v. Reyes-Hernandez, 624 F.3d 405, 417, 420 (7th Cir. 2010), which permits sentencing courts to compensate for fast-track disparities but emphasizes that no district judge is required to evaluate this mitigating argument until the defendant demonstrates that he would have been eligible to participate in a fast-track program and, in fact, would have “pursued the option” had it been available.  The contours of this threshold qualification have not been defined in a published opinion, but four nonprecedential orders offer helpful guidance.  See United States v. Vazquez-Pita, 411 F. App’x 887 (7th Cir. 2011); United States v. Morant-Jones, 411 F. App’x 885 (7th Cir. 2011); United States v. Abasta-Ruiz, 409 F. App’x 949 (7th Cir. 2011); United States v. Torres-Vasquez, 406 F. App’x 40 (7th Cir. 2010).  And in one of these appeals now before us, we directed the parties to submit supplemental statements addressing the question.

We hold that a district court need not address a fast-track argument unless the defendant has shown that he is similarly situated to persons who actually would receive a benefit in a fast-track district.  That means that the defendant must promptly plead guilty, agree to the factual basis proffered by the government, and execute an enforceable waiver of specific rights before or during the plea colloquy.  It also means that the defendant must establish that he would receive a fast-track sentence in at least one district offering the program and submit a thorough account of the likely imprisonment range in the districts where he is eligible, as well a candid assessment of the number of programs for which he would not qualify.  Until the defendant meets these preconditions, his “disparity” argument is illusory and may be passed over in silence.

July 20, 2011 at 03:42 PM | Permalink


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On first read this appears to be a very well written and logical opinion. Creative defense lawyers and FPD's should be able to put together sufficient information so that lawyers willing to do their homework can get a fast-track result for defendants that truly deserve it. Hat's off to the 7th Circuit for urging cooperation by the U.S. Attorneys' offices in the circuit for eligible defendants. Do the defense lawyers and AUSA's in this circuit see that happening? Any prediction as to which office will be most helpful? This should separate cream of the defense bar from corner cutting defense lawyers who will be to lazy to do the work.

Posted by: Steve Prof | Jul 20, 2011 6:09:50 PM

Not sure which camp I fall into, the cream or the crap, but I'm an FPD who's arguing this issue in the Tenth Circuit on September 16. I asked an investigator in our office to pour through hundreds of PACER documents from the various fast-track districts for purposes of showing how difficult it is to marshal the sort of "evidence" the 7th Circuit now demands. She reviewed hundreds of plea agreements and presentence reports (at least the ones that were not sealed), one-at-a-time to identify defendants who qualified for fast-track disposition and who had the same or similar prior convictions as did our client. It took her many, many hours to complete the task. Plus, she enjoyed distinct advantages. She is a skilled investigator, with a facility for technololgy, and she didn't have to pay PACER fees because she's an FPD employee. (This Herculean task was not performed below. There the defense lawyer took the position that questions of eligibility should be directed to the entity that created and administers fast track, the Dept of Justice.)

The Seventh Circuit's decision is nuts, not least because the govt, our opponent, has the very information the court now demands that we uncover. And as my investigator can attest, the task of unearthing eligibility standards across Fast Track Nation requires more than a little effort. Yet the govt refuses to release these eligibility requirements, or even disclose them to the defense. We spoke with an official at every US Atty's Office in a fast-track jurisdiction and asked whether there exits a publically available statement of fast-track eligibility, one that lists the grounds for exclusion from the program. In each case, the answer was the same: NO. While there may be an internal document, we were told repeatedly, it is not available to the public or the defendant. What about FOIA, you ask? The Dept. of Justice, as Alison Siegler who teaches at the U of C recently learned, withheld thousands of relevant documents from a request submitted under the Act, releasing only the most anoydyne materials about fast track, like the Ashcroft memo.

Burdens of proof should be and generally are allocated to the party in the best position to obtain the information. Why not here too?

Posted by: John Carlson | Jul 20, 2011 7:34:45 PM

John, you raise a very good argument. In some of the fast track districts there are standard plea agreements that lay out the various sentencing "formulas" under the fast tract depending on where the defendant lands in terms of criminal history. Wouldn't your colleagues in the FPD offices in the fast track districts easily be able to put together an affidavit regarding this grid...how much work would that be?

Posted by: Steve Prof | Jul 20, 2011 7:47:01 PM

John, you should just contact a couple of FPD offices along the border. They'll save you a lot of time.

Posted by: anon | Jul 20, 2011 8:06:18 PM

My office gets this blog regularly, but I've never posted before. As a DFPD in the Central District of California, I am sure my office would be happy to answer inquiries from any 7th Circuit counsel who want to know the criteria for fast-tracks in our district. I am sure the FPD offices in the 7th Circuit already know they can count on us and other fast-track district offices for needed information, if this opinion sticks. This is to let retained counsel know this too (that feels odd to say, as there are hardly any retained counsel doing fast-tracks in our district).

Posted by: Myra Sun | Jul 21, 2011 11:24:24 AM

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