Double-Counting and the Guidelines

United States v. Ramirez, No. 09 Cr. 751 (RWS), 2009 WL 4722237 (S.D.N.Y. Dec. 4, 2009)

Ramirez was convicted of illegal re-entry after deportation following conviction for criminal sle of a crontrolled substance in the second degree, for which he faced an advisory Guidelines range of imprisonment of between 41 and 51 months.  He was sentence, however, to only 18 months imprisonment because: (1) of the disparity in the sentences imposed for illegal re-entry cases in jurisdictions that have and that do not have fast-track programs; and (2) his advisory Guidelines range "double counts his criminal history, using his prior convictions not only to enhance his criminal history category but also to increase his offense level threefold."  Indeed, the court noted that there's no sense in increasing a defendant's penalty "twice" based on prior criminal conduct -- a practice that is arbitrary.

Fast Track Disparity Remains Open in the Second Circuit

United States v. Ramos-Soto, No. 08-2381-cr, 2009 WL 4255754 (2d Cir. Dec. 1, 2009)

Ramos-Soto is a case that simply highlights the question of whether fast-track disparity is a legitimate basis for a non-Guidelines sentence.  In it, the defendant contended that the district court committed procedural error by denying his motion for a non-Guidelines sentence bsed on the potential sentencing disparity arising from the absence of a fast-track program in the Eastern District of New York.  The precise contours of his argument before the district court, however, were unclear from the record.

Accordingly, the Second Circuit remanded for clarification.  In doing so, however, it noted that: (1) a decision by the district court tht it "was not required to to issue a non-Guidelines sentence . . . based on defendant's disparity argument" would "not necessarily be inconsistent with our previous holdings"; and (2) a decision by the district court that "it lacked authority to issue a non-Guidelines sentence . . . remains the subject of an open question in this Circuit."

4 Is The "Magic Number" For Fast-Track Disparity Downward Adjustments

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:

In determining the non-Guidelines sentence to be imposed in this case, it is appropriate to consider how other courts have approached the fast-track disparity issue. In this District, on October 28, 2005, the Honorable Kimba M. Wood imposed a non-Guidelines sentence based upon the unwarranted sentencing disparity in illegal reentry cases. See United States v. Vernal Mark Deans, 03 Cr. 387(KMW). Judge Wood found that most fast-track illegal reentry jurisdictions on average reduce a sentence by four offense levels, and accordingly rejected the Guidelines range of seventy-seven to ninety-six months and imposed a sentence of fifty-one months. This Court previously has utilized the equivalent of a four-level reduction in the offense level in determining the length of non-Guidelines sentences.  Santos-Nuez, 2006 WL 1409106, at *6; Santos, 406 F. Supp. 2d at 329, Linval, 2005 WL 3215155, at *7. 

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.

Non-Guidelines Sentences Based On Fast-Track Disparity Still Possible In The Second Circuit?

United States v. Liriano-Blanco, Docket No. 06-2919-cr (Jan. 2, 2008) (found here)

Liriano-Blanco pled guilty to illegal re-entry charges.  The district court declined to impose a non-Guidelines sentence because it believed that it could not do so based on fast-track disparity.  But the district court also believed that Liriano-Blanco's sentence could be appealed, actually encouraged appeal so that the fast-track disparity question could be decided by the Second Circuit, and indicated that it would impose a different sentence if the Second Circuit ruled that a non-Guidelines sentence could, in fact, be based on fast-track disparity.  The only problem was that Liriano-Blanco signed a plea agreement containing an appeal waiver provision, and no one corrected the district court's misunderstanding at sentencing.  The Second Circuit remanded to correct this error.

What's interesting about Liriano-Blanco, however, is what the Second Circuit says about fast-track disparity.  We know that the Second Circuit found in United States v. Meija (discussed here) that "a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make that sentence unreasonable."  But the Second Circuit acknowledged in Liriano-Blanco that it has never decided the question of "whether the district court has the authority to impose a non-Guidelines sentence in response to the fast-track sentencing disparity if it deems such a reduced sentence to be warranted." 

The door is therefore still open in the Second Circuit on fast-track disparity.  And, in light of Rita, Kimbrough and Gall, it seems likely that the Second Circuit would ultimately find (when presented with the question) that a district court is authorized to impose a non-Guidelines sentence based on fast-track disparity, and that such a sentence would be reasonable.

A Way Around The Bar On Fast-Track Disparity As A Grounds For A Non-Guidelines Sentence

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)."

Much Ado About Fast-Track Disparity

United States v. Velasquez, No. 05-7007-cr (2d Cir. Oct. 19, 2006) (found here)
United States v. Ellis, No. 05-6007-cr (2d Cir. Oct. 18, 2006) (found here)

In the past two days, the Second Circuit has released two summary orders denying appeals based on the disparity in sentences imposed for illegal re-entry in jurisdictions that have and do not have fast-track disposition programs.  In both cases, the Second Circuit relies on its decision in United States v. Mejia, 461 F.3d 158 (2d Cir. 2006) (discussed here), in which it 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." 

Why the sudden rash of Mejia-reliant decisions?  Could it be because the Second Circuit initially forgot when it decided United States v. Pereira (discussed here) that it had decided Mejia (as the Second Circuit Blog pointed out here and here)?  Is this a reminder that Mejia is good law?  And why does Ellis cite to Mejia using its F.3d cite while Velasquez cites to Mejia using a LEXIS cite?

How Low Will The Second Circuit Go As To What A Sentencing Court Must Do To Demonstate That it Has Considered 18 U.S.C. § 3553(a)?

United States v. Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006) (found here)

Pereira has not pointed to any "case law, and we are not aware of any, holding that a sentencing judge must refer to § 3553(a) at all, much less do so without prompting."  Is the Second Circuit serious?

Pereira pled guilty to illegally reentering the United States after his 1998 deportation following a conviction for an aggravated felony in New York.  Pereira's Guidelines range was 41-51 months.  The sentencing court, however, imposed a 62 month sentence that was, in part, based on an increase in Pereira's offense level arising from his 1998 conviction.  Pereira challenged the reasonableness of his sentence as well as the enhancement arising from his 1998 conviction.

Reasonableness of the Sentence

Pereira argued that the sentencing court had not properly considered the 18 U.S.C. § 3553(a) factors and, specifically, that the sentencnig court  failed to consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.  Specifically, Pereira challenged the failure of the sentencing court to consider the disparities between jurisdictions that do and do not have fast-track disposition systems.

With regard to the reasonableness of the sentence, the Second Circuit set forth its usual prose as to the obligations of sentencing courts to consider 18 U.S.C. § 3553(a) and the low threshold by which such consideration will be judged, and affirmed his 62 month sentence as reasonable.  But Pereira's case must be a new "low" in what the Second Circuit considers sufficient for adequate consideration of 18 U.S.C. § 3553(a).  Indeed, in a footnote, the Second Circuit noted that Pereira had not pointed to any "case law, and we are not aware of any, holding that a sentencing judge must refer to § 3553(a) at all, much less do so without prompting." 

Judge for yourself.  Here is the exchange from the sentencing transcript (as quoted and relied upon by the Second Circuit). 

Gov't:  Now that the Court has imposed the sentence, it's obvious from the Court's 62-month sentence, the Court understands that the sentencing guideliens which are 41 to 51 months are advisory.

Court:  Of course

Gov't:  And 3553, all the factors set forth.

Court:  I have.

Gov't.  Your Honor, on appeal, and I expect there will be an appeal in this case because there was no waiver, the issue may be framed such that if the Second Circuit were to conclude that the 16 point enhancement based upon the youthful offender conviction was somehow erroneous, the question will be whether or not that somehow appreciably affected the Court's sentence.  So I would ask would the Court be willing to state would you have imposed the 62-month sentence?

Court:  I would have.  Because the guidelines are advisory, and I based my determination on prior conduct, including convictions, and the present course of conduct, and the person's background and likelihood of rehabilitation, and their expression of remorse.

The Second Circuit surprisingly found that the foregoing was adequate consideration of 18 U.S.C. § 3553(a) and that the foregoing was an adequate articulation of the sentencing court's reasons for imposnig a non-Guidelines sentence. 

Notice of Imposition of a Non-Guidelines Sentence

An interesting aside.  In United States v, Anati, 457 F.3d 233 (2d Cir. 2006) (discussed here) the Second Circuit held that a district court may not sue sponte impose a non-Guidelines sentence unless it gives the adversly affected party advance notice and allows that party the opportunity to challenge the grounds for such a sentence.  The Second Circuit found that Pereira had waived this argument because he had not raised it on appeal. 

Query as to whether Pereira was even aware of Anati at the time that he submitted his appellate briefs and made his appellate argument.  Indeed, Anati was not decided until July 20, 2006.

Fast-Track Disparity

With regard to fast-track disparity, the Second Circuit essentially punted, finding that: (1) there is no binding precedent from the Supreme Court or the Second Circuit on the issue; (2) the sentencing court's failure to consider the issue was not "egregious and obvious" to the extent that the sentencing court did not consider the issue (the Second Circuit appied that standard because it found the issue had not been preserved below); and (3) the other circuits that have addressed the issue (the First, Seventh and Eighth Circuits) have all concluded that "the sentencing disparities that arise from the use of fast-track programs in some jurisdictions do not, in and of themselves, render unreasonable the sentences received by those convicted of unlawful reentry in areas without such programs."

Youthful Offender Adjudications

Pereira also challenged a 16 level enhancement to his offense level arising from his 1998 conviction.  The commentary to Section 2L1.2(b)(1)(A)(II) of the Guidelines provides that a felony committed before the defendant was 18 years old cannot be the basis for this enhancement" unless such conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted."  Pereira argued that his 1998 conviction was not classified as an adult conviction under New York law because it resulted in a youthful offender adjudication (Pereira was 16 years old at the time). 

The Second Circuit applied its findings with regard to other Guidelines provisions in United States v. Jones, 415 F.3d 256 (2d Cir. 2005) (Section 4B1.2, the Career Offender Guideline) and United States v. Cuello, 357 F.3d 162 (2d Cir. 2004) (Section 2K2.1, the Unlawful Receipt, Possession, or Transportation of Firearms of Ammunition Guideline) to this issue, and concluded that "in determining whether a defendant's youthful offender adjudications are classified as adult convictions under the laws of New York, the district court must look to the 'substance' of the prior convictions and not merely how they are labeled by the state."

UPDATE:  Check out the critiques of Pereira by Doug Berman's always inciteful Sentencing Law and Policy blog here and the Second Circuit Blog here.

Fast-Track Disparity As A Basis For A Non-Guidelines Sentence "Rejected" By The Second Circuit

United States v. Mejia, Docket No. 05-3903-cr., 2006 WL 2411384 (2d Cir. Aug. 22, 2006) (found here)

Mejia claimed on appeal that the district court that sentenced him "erred in declining to reduce his sentence to account for the lesser sentence he presumably would have received in one of the thirteen districts that use a 'fast-track' or 'early disposition' program, which allows a defendant charged with illegal reentry to plead to a reduced sentence or to a lesser offense," and that there was therefore an unwarranted sentence disparity (pursuant to 18 U.S.C. § 3553(a)(6)) between the sentence he received and the sentence received by defendants like him in those "fast-track" jurisdictions.  The Second Circuit rejected Mejia's argument, holding 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." 

Although a general negative, the Second Circuit's holding in Mejia is not a total negative.  By holding that a district court's refusal to adjust a sentence to compensate for fast-track disparity does not make a sentence unreasonable, the Second Circuit at least implicitly held out the possibility that an adjustment to a defendant's sentence to account for fast-track disparity would not necessarily make that sentence unreasonable.

For further discussion of Mejia, check out the Sentencing Law and Policy blog here and the Second Circuit Blog here.

Possible First Sighting Of Non-5K Cooperation?

United States v. Santos-Nuez, No. 05 CR. 1232 (RWS), 2006 WL 1409106 (S.D.N.Y. May 22, 2006)

The vast majority of the Santos-Nuez sentencing opinion discusses the issue of double-counting in illegal re-entry cases (for which the Court reduced the defendant's offense level by 3 offense levels) and fast-track disparity (for which the Court reduced the defendant's offense level by 4 offense levels).  The Court's recitation of Santos-Ruez's criminal history and the reasons for the sentence it imposed, however, are quite significant because they may be the first circumstance of Fernandez non-5K cooperation benefitting a defendant.

Here are the details:

Santos-Nuez was originally arrested by the NYPD, signed a cooperation agreement with state authorities and was released from custody.  Over the next several months, Santos-Nuez provided law enforcement with information that lead to the arrest and conviction of numerous drug dealers.  Santos-Nuez, however, was subsequently arrested on federal narcotics charges -- thereby invalidating his state cooperation agreement -- and received both federal and state terms of imprisonment.  Santos-Ruez completed his federal time, was transferred to the state, was subsequently paroled by the state, was taken into the custody of the Bureau of Immigration and Customs Enforcement following his parole by the state, and was subsequently deported to the Dominican Republic.  And, obviously, Santos-Ruez then illegally re-entered the United States. 

In imposing its sentence for illegal re-entry here, the district court (Judge Sweet) specifically noted that it considered "the Defendant's past cooperation with law enforcement" even though Santos-Ruez violated the terms of that cooperation agreement.  Even though the Court did not expand upon that short mention of past cooperation, that mere mention is still significant because it may be the first case of Fernandez non-5K cooperation benefitting a defendant.  Indeed, it is precisely one of the circumstances under which this author predicted that Fernandez non-5K cooperation would apply -- to wit, the "blown" cooperation agreement.

Second Circuit Tees-Up Fast Track Disparity Issue

United States v. Urena, 05-2343-cr (2d Cir. March 22, 2006) (found here)

In appealing his sentence, Urena "point[ed] to the use of 'fast-track' programs in other parts of the country as evidence that his 72-month sentence is not 'sufficient, but [rather, is] greater than necessary' to comply with" the statutory sentencing purposes.  In a footnote, the Second Circuit declined to address this specific argument because it was not "clear from the record whether the district court specifically considered fast-track programs when it sentenced Urena to a term of imprisonment five months less than the recommended guideline range."

But . . . the Second Circuit commented further.  Specifically, the Second Circuit indicated that it is just chomping at the bit to resolve the fast-track disparity issue.  Here is what the Second Circuit said:

"In this Circuit, district courts have expressed divergent views on whether a sentencing court can, should, or must consider the wide-spread use of fast-track programs as a factor relevant to an individual defendant's sentence.  Compare United States v. Duran, 299 F. Supp.2d 543 (S.D.N.Y. 2005) (fast-track not a relevant consideration), with [United States v.] Linval, [No. 05-CR-245,] 2005 WL 3215155 [(S.D.N.Y. Nov. 23, 2005)] (considering fast-track), and United States v. Krukowski, No. 04-CR-1308 (S.D.N.Y. July 28, 2005) (considering fast-track), and United States v. Deans, 03-CR-387 (S.D.N.Y. Nov. 9, 2005) (considering fast-track).  While this is certainly an intriguing question ripe for resolution by this Court, we need not reach this particular issue here . . ."

Ladies and Gentlemen: Start your word-processors!