Guidelines Sentence Affirmed As Reasonable -- No Commentary On Fast Track Disparity

United States v. Smith, No. 05-2214, 2006 WL 522082 (2d Cir. March 3, 2006)

Smith challenged his sentence of 57 months for illegally having re-entered the United States after having been deported for an aggavated felony.  Specifically, Smith argued that "the Guideline sentencing range for the offense of illegal reentry after deportation is generally substantively unreasonable."  The Second Circuit (as expected) rejected Garcia's claims.  Indeed, although the Second Circuit has rejected per se rules of reasonableness, it has strongly indicated that it will rarely reverse or vacate a Guidelines sentence as unreasonable.  Although (and likely because) Garcia did not challenge his sentence based on any fast-track disparity, the Second Circuit never addressed this developing issue from the district courts.  A little dicta, however, wouldn't have hurt anyone.  We will, however, keep an eye out for any decisions addressing fast-track disparity. 

A Different View On Fast-Track Disparity

United States v. Constantine, No. 05 CR. 0666 (VM), 2006 WL 435431 (S.D.N.Y. Feb. 21, 2006)

As noted elsewhere on this blog, fast-track disparity may be a basis for imposing a non-Guidelines sentence on a defendant convicted of an immigration offense.  Indeed, the court in United States v. Austin, No. 05 CR. 744 (RWS), 2006 WL 305462 (S.D.N.Y. Feb. 6, 2006) did just that. 

The Constantine court, however -- in a blitz of double negatives -- found that the "disparities created as a result of the existence of fast-track programs may not be 'unwarranted'."  Specifically, Constantine acknowledged the on-going debate concerning fast-track disparity, but ultimately found that "disparities created by the existence of fast-track programs are similar to disparities created by individual prosecutors' decision-making as to particular defendants, offenses, or geographic considerations." 

It seems that prosectorial decision-making should be another grounds for disparity within the Guidelines sentencing scheme, and not a ground for finding that disparity does not exist.  Indeed, what could be more disparite than different prosecutors charging defendants who have committed the same conduct with different offenses?  Weren't the Guidelines developed so that there would be significantly less disparity between the sentences imposed on similarly situated defendants?

Non-Guidelines Sentences Based On Fast-Track Disparity

United States v. Austin, No. 05 CR. 744 (RWS), 2006 WL 305462 (S.D.N.Y. Feb. 6, 2006)

In a case that should be instructive for all defense attorneys handling immigration cases in New York, Austin is important because it sets forth in a cohesive and persuasive manner a ground for a non-Guidelines sentence based on sentencing disparity.  Specifically, in Austin, the defendant argued that "the imposition of a sentence within the Guidelines range would create an unwarranted sentencing disparity between her sentence and the sentences imposed on defendants in fast-track jurisdictions" because "offenders pleading guilty to illegal reentry in border districts with fast track programs receive substantially lower sentences than those pleading guilty in other jurisdictions (such as the Southern District of New York.)"  Relying on Judge Kaplan's pronouncement in United States v. Bonnet-Grullon, 53 F. Supp.2d 430, 435 (S.D.N.Y. 1999), aff'd, 212 F.3d 692 (2d Cir. 2000) that "it is difficult to imagine a sentencing disparity less warranted than one which depends upon the accident of the judicial district in which the defendant happens to be arrested," the Austin court imposed a sentence of 24 months on a defendant whose Guidelines range was 33 to 41 months.  Specifically, the Austin court found that "geographical disparities, like those resulting from fast-track programs, result in unwarranted disparities in sentencing." 

One wonders whether there are other "geographical disparities" that should be accounted for at sentencing.  Are weapons or narcotics offenses handled differently in different parts of the country -- handling meaning sentencing or exercises of prosecutorial discretion or different policies in different United States Attorney's Offices?