US v. Perez-Pena: In this case, the Fourth Circuit joins in on the issue of variances from the Guidelines in immigration cases in districts that do not have a "fast track" program, which allows for a 4-level reduction for defendants who plead guilty in illegal reentry cases. Perez-Pena illegally entered the US from Mexico in 1993. Six years later, he was convicted of (basically) statutory rape and was deported after serving his sentence. He returned to the US without permission and was arrested after a traffic stop in the Eastern District of NC. EDNC, like the rest of the Fourth Circuit, does not have a fast track program by which an illegal reentry defendant can get a 4-level reduction in his offense level after pleading guilty (on the Government's motion). As sentencing, Perez-Pena argued for a sentence below his 37 to 46 month Guideline range on the ground that such a sentence was produce an unwarranted disparity with similarly situated defendants in fast track districts. The district court agreed and sentenced Perez-Pena to 24 months in prison. The Government appealed.
Joining other circuits that have faced the issue, the Fourth vacated Perez-Pena's sentence. The court concluded that a sentence within Perez-Pena's Guideline range would have been a warranted, rather than unwarranted, disparity with defendants in fast track districts, and therefore permissible. In fact, the PROTECT ACT provisions that allowed for fast track programs shows that Congress explicitly sanctioned such disparities. The Fourth also concluded that the variance was improper as a reflection of Perez-Pena's minor criminal history, as his Guideline calculation already did so.