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January 31, 2012

New DOJ memo makes all illegal re-entry defendants "eligible" for fast-track departure!

Huge (and complicated) federal sentencing news has just emerged today from the US Justice Department via this new memorandum, dated January 31, 2012, from Deputy AG Cole to all United States Attorneys with the subject line of "Department Policy on Early Disposition or 'Fast-Track' Programs."  Here is the start of this memo -- which I will start calling the Cole Fast-Track Memo -- and the key paragraphs explaining the significant DOJ policy change that this memo represents:

In the 1990s, United States Attorneys’ Offices and the Department developed early disposition or “fast-track” programs as a matter of prosecutorial discretion to handle increasingly large numbers of criminal immigration cases arising along the southwestern border of the United States. The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”), Pub. L. No. 108-066, 117 Stat. 650, Apr. 30, 2003, harmonized these programs with the departure provisions of the federal Sentencing Guidelines. More specifically, the PROTECT Act directed the Sentencing Commission to promulgate a statement by October 27, 2003, authorizing downward sentence departures of no more than four levels as part of an early disposition program authorized by the Attorney General and the United States Attorney.  See Pub. L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003).

This memorandum sets forth the revised policy and criteria for fast-track programs....

On September 22, 2003, then-Attorney General Ashcroft issued a memorandum setting forth the criteria to be used by United States Attorneys’ offices (USAOs) seeking to establish fast-track programs.  Since this memorandum was issued, the legal and operational circumstances surrounding fast-track programs have changed. Fast-track programs are no longer limited to the southwestern border districts; rather, some, but not all, non-border districts have sought and received authorization to implement fast-track programs. The existence of these programs in some, but not all, districts has generated a concern that defendants are being treated differently depending on where in the United States they are charged and sentenced.

In addition, the Sentencing Guidelines are no longer mandatory, and federal courts of appeals are divided on whether a sentencing court in a non-fast-track district may vary downwards from the Guidelines range to reflect disparities with defendants who are eligible to receive a fast-track sentencing discount.  Because of this circuit conflict, USAOs in non-fast-track districts routinely face motions for variances based on fast-track programs in other districts. Courts that grant such variances are left to impose sentences that introduce additional sentencing disparities.  In light of these circumstances, the Department conducted an internal review of authorized fast-track programs.  After consultation with the United States Attorneys in both affected and non-affected districts, the Department is revising its fast-track policy and establishing uniform, baseline eligibility requirements for any defendant who qualifies for fast-track treatment, regardless of where that defendant is prosecuted.

This outcome is consistent with the Department’s position on the Sentencing Guidelines as a means to achieve reasonable sentencing uniformity, and with Attorney General Holder’s memorandum on charging and sentencing, which states that persons who commit similar crimes and have similar culpability should, to the extent possible, be treated similarly....

Districts prosecuting felony illegal reentry cases should implement this new policy no later than by March 1, 2012. This will provide any needed transition, especially for those districts without fast-track programs currently in place.

For those who defend illegal immigration cases, particularly in districts without an authorized fast-track programs and without circuit law blessing fast-track variances, this is huge and great news because it means that defendants there are now potentially eligible for a sentencing discount that was not previously available.  However, for those who were previously able to get the benefit of some looser fast-track policies (which in some districts applied even to non-immigration cases), this memo may actually take away more than it gives.

This important new DOJ memo/policy and its potential ripple effects are too big for me to get my head around right now, in part because immigration offenses make up the largest percentage of the federal criminal docket and in part because fast-track departures have long been the most opaque facet of this docket.  The latest USSC data, for example, reports that in the last fiscal year (FY 2011) there were more than 28,000 federal criminal immigration cases, among which there were more than 7,500 fast-track departures and more than 2,500 variances.  The FY 2011 data also show that there were over 1,400 fast-track departures in non-immigration cases (almost all in drug trafficking cases). 

So, if I fully understand the likely impact of Cole Fast-Track Memo, for FY 2013 when this new policy is fully implemented, we should expect around 10,000 fast-track departures per year in immigration cases and zero fast-track departures in all other kinds of federal criminal cases.  Put another (perhaps more tangible) way, this new Cole Fast-Track Memo will mean 50+ immigration cases and 25+ drug cases each an every week will be processed (and reflected in federal sentencing data) quite differently.  Of course, all of this new case processing might not mean significant changes in final sentences, though big changes in the sentencing process often ends up resulting in at least some important changes in sentencing outcomes.

In subsequent posts, I will comment more on this policy change and praise DOJ for it.  Until then, I would be especially grateful to hear comments from those "on-the-ground" about what they expect this new DOJ memo/policy might mean for federal case processing and federal sentencing policy.

January 31, 2012 at 05:26 PM | Permalink


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This is a welcome policy change. I await to see how judges accept the Government's recommendations in fast track cases.

Defendants with no prior felony convictions gain little from this policy, because they are usually looking at time-served sentences by the time they get to sentencing, anyway.

Defendants with prior felonies and aggravated felonies that don't count as "serious violent felonies", however, are going to see their guideline ranges cut significantly. Defendants who fall into the 4- and 8-level increase category are going to be the primary beneficiaries of this policy.

This language is kind of strange: "except those with a criminal history category VI or with at least one felony conviction for a serious violent offense. For the latter category, if the defendant is not excluded under Section A(1), the government may only offer a two-level departure, with supervisory approval and on a case-by-case basis after considering the interest of public safety."

The "latter category" encompasses defendants with prior felony convictions for "serious violent offenses", which are what are excluded under Section A(1). So it's hard to see how someone could be "in the latter category" and not be excluded under Section A(1). Moreover, the memo defines drug trafficking, firearms offenses, and sexual abuse of a minor--which includes statutory rape, whether or not it involves force and regardless of the age difference between the defendant and the victim--as violent felony offenses. I'm not sure too many defendants in the 12- or 16-level increase class will actually see a recommended two-level decrease.

Anyway, those are my initial impressions.

Posted by: C.E. | Jan 31, 2012 11:05:04 PM

Few illegal re-entry defendants will be in Criminal History Category IV, especially now that they eliminated the recency points, which was a huge generator of criminal history points in the illegal re-entry context.

Someone really needs to call the government out for its truly Orwellian use of language in the immigration context. It is bad enough that they call anyone with a traffic arrest a "criminal alien." It is also pathetic that you can be convicted of a crime that is neither aggravated nor a felony and be labeled an aggravated felon. But now offenses involving absolutely no violence are not only labeled "violent" offenses, but "serious violent" offenses?

In the grand scheme of things, it wouldn't surprise me if *less* people receive fast track now, because the policy is narrower than some policies along the border, where 90% of these cases are prosecuted. Also note that a huge number of "fast track" cases are not done through the Guidelines, but through charge bargaining, where someone will be charged with one or two counts of illegal entry (and its lower statutory maximum penalty) rather than one count of illegal re-entry.

All that being said, I applaud the government for actually addressing a longstanding fairness problem. I think the program should be eliminated entirely. But if you're going to have a program in the federal system, it should be applied evenly throughout the country.

Posted by: anon | Feb 1, 2012 7:57:17 AM

Sorry -- by "criminal history IV," I meant "VI."

Posted by: anon | Feb 1, 2012 7:57:49 AM

Where are we getting the suggestion that this does away with fast-track in drug cases in high volume districts? I can't find it in the memo.

Posted by: Anon | Feb 1, 2012 10:43:45 AM

Anon, the recency points in the fast track. If I rememeber, within 2 yrs was dropped and made retroactive. But if on probation, any points there remain intact....Thats what I remember of the initial memo.. Is this correct...Thanks in advance..

Posted by: Midwest | Feb 1, 2012 12:02:18 PM

I have a question, my father being convicted of reentry into the TEXAS (united states) after he was deported because of a drug-trafficking case in Arkansas. He was just caught while I was driving 5 miles above the speed limit, I was driving back home after picking him up from work. He was sentenced 6 years...what do you think about the sentence, his public defender (David Sloan) did not defend the case really, he did not provide anything that would lower my father's sentence or that would actually say how supportive he is to the family and specially to my little sister who is going through a depression and is attending a psichiatrist and psychologist. Would there be anything similar to a fast track that would reduce my father's sentencen in the Western District of Texas? How would I appeal for a reduction of time? I would really appreciate a response.

Posted by: pedro abraham lopez | Feb 29, 2012 3:40:28 PM

I am a criminal defense attorney. I read the memo to suggest that a US attorney is obligated to create a fast track program if there are any prosecutions for illegal reentry. The creation of a program pursuant to the guidelines as non discretionary. Is anyone aware of a district, which has declined to create such a program, in spite of new prosecutions? "Districts prosecuting felony illegal reentry cases (8 U.S.C. § 1326)—the largest category of cases authorized for fast-track treatment—shall implement an early disposition program in accordance with the following requirements and the exercise of prosecutorial discretion by the United States Attorney:"

Posted by: Linda | Apr 30, 2012 7:03:03 PM

I had never heard of anything like this But I do understand that the people that qualify should be set free There is alot of attorneys that are not doing anything to help their clients which is very sad. Im hopeful my nephew will now be able to be released

Posted by: Angie | Oct 16, 2012 5:10:11 PM

The judge dont care because its not affecting their lives My life and kids life is very stressed out right now i am mentally exhausted from not having the help of my kids father who is in Immigration custody for illegal reentry. i am taking my kids to libe where there father his its hard as a single mom. they need to take the law back and send every one home to country of heritage then the judge and prosecuters family destroyedd the will know what it feels like and want to make changes. this is Gods land a man has a right to chose where he wants to live. home land security you are destroying american children lives with our policies. strong families make strong communities.

Posted by: marissa | Oct 25, 2012 4:13:32 PM

Unfortunately most judges are out of touch with the realities of life and many lawyers are only out to see how much they can earn. It makes very little difference to a lawyer if his client is successful or not.

Posted by: legal advice | Nov 23, 2012 9:16:35 AM


will DOJ apply for those who are sentenced already also?

Posted by: tomas | Apr 9, 2013 9:27:15 PM

I am a concerned citizen, Im wondering why the prosecutors in Miami fight so hard against Jamaicans receiving sentencing under the Cole fast track program for illegal re -entry handing out 2yrs instead of time served or six months seems to me to be discriminatory ! Who is over seeing this program ? Any One ? Why penalize people so severely if their crime is just seeking a better life ie (re-entry ) can someone answer any of these questions ? ? ?

Posted by: Elizabeth | Mar 15, 2014 10:38:22 AM

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