United States v. Gutierrez-Hernandez, No. 08 Cr. 1335-01 (RWS), 2009 WL 812265 (S.D.N.Y. March 26, 2009)
In this case, Judge Sweet takes on the question of the appropriate adjustment to account for the disparity in Guidelines offense levels for illegal re-entry cases between those jurisdictions that have and those that don't have fast-track programs. And he basically concludes that 4 is the magic number -- a 4 level downward adjustment, that is, to account for fast track disparity. Here's how he got there:
Accordingly, after accounting for the effects of the fast-track disparity, Gutierrez-Hernandez is more appropriately sentenced at the equivalent of an offense level of 2 [rather than 6]. Under the Guidelines, an offense level of 2 and a Criminal History Category of V result in a range of zero to 6 months.
Gutierrez-Hernandez is also well worth checking out for the citations contained therein. Judge Sweet does a very nice job (as he always does) of laying our the relevant authority -- in this case, authority supporting the notion that fast-track disparity is becoming a well-established basis for non-Guidelines sentences.