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The Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85 (2007), taken together with other recent cases, has rekindled debate about whether sentencing disparities created by fast-track programs can be considered by district court judges in non-fast-track districts when crafting individual sentences. We address that issue today.

Because both cases present the same issue on appeal, we consolidate them for the purpose of our review.

The appellants argue that both district courts committed reversible procedural error because the courts found that Seventh Circuit precedent precluded them from considering the sentences given in fast-track districts as part of their 18 U.S.C. § 3553(a) analyses, despite recent Supreme Court decisions.

Our court has recently recognized that the Supreme Court has “rekindled debate about whether the absence of a fast-track program can be a factor in the choice of sentence.” United States v. Valadez-Martinez, 295 F. App’x 832, 835 (7th Cir. 2008).

There are considerable differences of opinion on this issue among the circuit courts. The Fifth Circuit held that Kimbrough did not overturn several other circuits’ decisions that a sentencing court was precluded from considering disparities created by fast-track programs. United States v. Gomez-Herrera, 523 F.3d 554, 562-63 (5th Cir. 2008).  The Eleventh Circuit fell in line with the Fifth Circuit.  United States v. Vega-Castillo, 540 F.3d 1235, 1239 (11th Cir. 2008).  The Ninth Circuit also concluded that Kimbrough had no effect on fast-track sentencing argum ents. United States v. Gonzalez-Zotelo, 556 F.3d 736, 739-41 (9th Cir. 2009).

The First, Third, and Sixth Circuits, however, have reached a different conclusion. The First Circuit held that following Kimbrough, “consideration of fast-track disparity is not categorically barred as a sentence-evaluating datum within the overall ambit of 18 U.S.C. § 3553(a).” United States v. Rodriguez, 527 F.3d 221, 229 (1st Cir. 2008).  The Third Circuit also found the analyses by the Fifth, Ninth, and Eleventh Circuits to be erroneous. The court said that “[f]ocusing on congressional policy here is illusory.” United States v. Arrelucea-Zamudio, 581 F.3d 142, 150-51 (3d Cir. 2009)

Finally, the Sixth Circuit recently joined with the First and Third Circuit. The Sixth Circuit based its decision on Kimbrough and held that a fast-track disparity can be the basis of a below-guidelines sentence. See United States v. Camacho-Arellano, 614 F.3d 244 (6th Cir. 2010). Importantly, the court noted that the holding in Kimbrough and in Spears v. United States, 129 S. Ct. 840 (2009).

The government argues that because our prior precedent holds that Congress “expressly approved” fast-track sentencing, § 5K3.1 must be treated as a statute, thus preventing district court judges in non-fast-track districts from disagreeing with that guideline. We do not believe that our precedent so neatly resolves the question. In any event, the government’s reading of our precedent is an overdrawn extension of the PROTECT Act.

In fact, it is arguable whether there is even a Congressional directive “embedded” in the fast-track guideline. We simply know that Congress authorized the Sentencing Commission to develop a guideline providing “a downward departure of not more than 4 levels if the Government files a motion for such a departure pursuant to an early disposition program.”

Importantly, in the text of the PROTECT Act, Congress did not specifically address a district court’s discretion with respect to sentencing in non-fast-track districts. While Congress “explicitly” gave the Attorney General the ability to establish early disposition programs district by district, and instructed the Sentencing Commission to promulgate a guideline to implement those programs, it certainly did not explicitly forbid non-fast-track districts from taking into account the effect of fast-track dispositions under the § 3553(a) factors.

If Congress wanted to prohibit judges in non-fast-track districts from disagreeing with § 5K3.1 based on policy, Congress could have issued such a directive in unequivocal terminology.

Although district courts may arrive at the same outcome whether they choose to consider the fast-track argument or not, we clarify today that the absence of a fast-track program and the resulting difference in the guidelines range should not be categorically excluded as a sentencing consideration.

Our holding merely permits the sentencing judge to consider a facially obvious disparity created by fast-track programs among the totality of § 3553(a) factors considered. However, we provide a word of caution that a departure from the guidelines premised solely on a fast-track disparity may still be unreasonable. To withstand scrutiny, a departure should result from a holistic and meaningful review of all relevant § 3553(a) factors.

We hold that § 5K3.1 should be treated as any other guideline, thereby affording district court judges the ability to consider the absence of a fast-track program in crafting an individual sentence. Because the judges in the district courts were precluded by our prior precedent from considering the defendants’ fast-track arguments, we do not determine today whether the appellants would have in fact been eligible for such consideration, nor do we opine on the reasonableness of their sentences.

The sentences of Reyes-Hernandez and Sanchez-Gonzalez’s are VACATED, and their cases are REMANDED for re-sentencing consistent with this opinion.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

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