Tenth Circuit elaborates on authority to vary from guidelines based on fast-track disparity

A Tenth Circuit panel has today issued a details opinion discussion a district court's authority to vary from the guidelines based on fast-track disparities.  The opinion in US v. Lopez-Macias, No. 10-1494 (10th Cir. Nov. 7, 2011) (available here), gets started this way:

In the 1990s, federal prosecutors handling large numbers of illegal re-entry and other immigration offenses developed early disposition or “fast-track” programs in states along the United States border with Mexico.  In 2003, Congress endorsed such programs, apparently for border districts and elsewhere, in a broadly-worded provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”). Pub. L. No. 108-21, 117 Stat. 650 (2003).  Congress specifically instructed the United States Sentencing Commission to promulgate “a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney.”  Pub. L. No. 108-21, § 401(m), 117 Stat. at 675.  In response, the Sentencing Commission promulgated U.S.S.G. § 5K3.1: “Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the [Attorney General] and the United States Attorney for the district in which the court resides.”

This sentencing appeal presents us with two questions related to the presence of fast-track programs in some federal districts, but not others. The first question is whether a sentencing court in a non-fast-track district has the discretion to consider sentence disparities caused by the existence of fast-track programs in other districts, and, based thereon, vary from the applicable guideline range for a defendant charged with an immigration offense. If so, the second issue is whether the apparently nebulous eligibility requirements for fast-track programs relieve a defendant charged with an immigration offense in a non-fast-track district of the burden of showing entitlement, at least in some sense, to sentencing consistent with a fast-track program. We hold that (1) where the circumstances warrant, a district court in a non-fast-track district has the discretion to vary from a defendant’s applicable guideline range based on fast-track sentence disparities, but (2) a defendant bears the initial burden of showing entitlement, in some sense, to a variance based on fast-track sentence disparities. Given the facts presented here, however, we need not now decide the precise extent of a defendant’s burden.