Friday, April 14, 2006

Fast-Track Variance Brief

In many jurisdictions, defendants charged with illegal reentry after conviction of an aggravated felony (18 U.S.C. Sec. 1326(a)) are allowed to participate in early disposition or "fast-track" programs in which the government agrees to a reduced sentence in exchange for a quick plea and a pledge not to contest deportation. Use of these programs is widespread. Approximately 75% of all illegal reentry defendants are prosecuted in districts with fast-track programs.

Unfortunately, none of the districts in the Fourth Circuit offer a fast-track program. This means that illegal reentry defendants who happen to have been arrested in, say, North Carolina face substantially longer sentences than identical defendants arrested in Arizona. A North Carolina defendant facing a sentence of 70 months or more might receive a sentence as low as 24 months in a fast-track jurisdiction.

Many defendants in non-fast-track jurisdictions, citing the obvious injustice of predicating increased punishment on a fluke of geography rather than any difference in individual culpability, have argued that courts should ameliorate the sentencing disparities caused by these fast-track programs pursuant to their authority under 18 U.S.C. Sec. 3553(a). They have also argued that the sentences received by fast-track defendants are relevant to a number of the other statutory purposes of sentencing, including the need for the sentence to reflect the seriousness of the offense, to afford adequate deterrence and to promote respect for the law.

In the Eastern District of North Carolina, two of our judges (following the lead of a district judge in Eastern Virginia) have accepted this argument and imposed sentences comparable to what a defendant would have received in a fast-track jurisdiction.

The government has now appealed these sentences and argued that a district court has no authority to correct any sentencing disparities caused by fast-track programs. Its main point is that fast-track programs were authorized by Congress in the PROTECT Act and therefore any disparities they cause can not be deemed "unwarranted" within meaning of Sec. 3553(a)(6). The government goes even further and argues that a court can not consider a fast-track sentence for any purpose without violating the will of Congress or intruding on prosecutorial discretion.

Several appellate courts have expressed sympathy for the argument that fast-track disparities may not be "unwarranted," however, few, if any, courts have yet addressed whether these fast-track sentences may be relevant to other statutory sentencing factors. Accordingly, any defendant seeking a lower sentence based on fast-track considerations would be wise to cast his argument as broadly as possible and not present it solely in terms of the need to avoid unwarranted disparity.

A detailed discussion of all of these issues can be found in the defendant's brief in one of the cases the government is appealing, United States v. Perez-Pena, No. 05-5054, which can be found here. Anyone interested in receiving copies of the district court pleadings in this case should contact me.

This case is scheduled to be argued in May.

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