United States v. Kingsley, No. 05-6260-cr (2d Cir. Dec. 21, 2006)
Kinglsely argued on appeal that his sentence of 46 months imprisonment for illegal re-entry was unreasonable for two reasons.
First, Kingsley argued that the district court failed to consider whether the availability of lower sentences in fast-track jurisdictions created unwarranted sentence disparities among defendants convicted of the same crime in different districts. The Second Circuit rejected this argument based on its prior decision in United States v. Meija (discussed here), which held that "a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable."
Second, Kinglsey argued that the district court erred by concluding that it could not consider the lower sentences available in fast-track jurisdictions when determining (pursuant to Section 3553(a)'s "parsimony clause") that a sentence was sufficient, but not greater than necessary, to accomplish the sentencing objections in Section 3553(a). The Second Circuit did not adjudicate this issue because it had not been preserved below. But the Second Circuit did note that both Kinglsey and the Government agreed that Mejia did not control this question.
In other words, the Second Circuit essentially acknowledged that a "loophole" exists for seeking a non-Guidelines sentence based on fast-track disparity. Indeed, the Second Circuit's concluding paragraph in Kingsley lends support to that conclusion. Specifically, the Second Circuit concluded its opinion by citing to United States v. Ministro-Tapia (discussed here) and stated that "a recent panel of this Court rejected a claim under the parsimony clause, where, as here, the record did not indicate that the district court imposed a sentence it considered greater than necessary under 3553(a)."