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The Seventh Circuit Puts Fast Track Disparity Arguments On A Slow Track, But Doesn’t Derail Them Entirely

If you come to the United States from another country, and you aren’t really here with permission (that is, you come in violation of U.S. Immigration law), and you’re sent back to your home country, but then decide to come back to the United States, odds are you have committed the federal crime of illegal reentry. This is a violation of 8 U.S.C. S 1326(a). The crime is commonly called illegal reentry.

This crime gets committed a lot. And it gets prosecuted in any place where a person who has returned to the country after a prior deportation is discovered. Illegal reentry can be prosecuted in Texas, and it can be prosecuted in Iowa.

(though, as an aside, there’s a much larger population of recent immigrants in Iowa than you might think. My hometown of Perry Iowa, for example now has a very good Mexican restaurant. Iowa is trying to respond to these new Iowans in what I think of as a characteristically kind and reasonable way.)

Border districts have many more illegal reentry cases than they can reasonably address. In order to encourage people to plead guilty quickly, so these courts can dispose of these cases, many federal prosecutors on the border set up “Fast Track” programs. Though these programs have now spread beyond the border – Nebraska has one, for example.

Fast Track programs let people get a much lower sentence if they plead guilty quickly, agree to a statement of facts offered by the government, and give up certain rights.

A Very Different Kind of Fast Track

Generally, Fast Track programs are only available to people caught along the border. Folks charged with illegal reentry in other parts of the country have cried foul. If you’re caught in Maryland, which does not have a Fast Track program, why should you serve longer than if you’re caught in Texas, simply because of a program to manage the court’s docket. That doesn’t seem like justice.

The federal law that governs sentencing factors, 18 U.S.C. S 3553, even tells judges, in subsection (a)(6), that they should avoid treating people accused of the same crime with the same criminal history differently.

How to handle this, though, is a massive problem. The Seventh Circuit has rolled-up its sleeves to work on it though, in three cases consolidated in its opinion in United States v. Ramirez. And, to be clear, Sentencing Law & Policy beat me to the punch. Check out Berman’s coverage here.

The Seventh Circuit held that:

a defendant claiming entitlement to a lower sentence because of a perceived fast-track “disparity” must promptly plead guilty, agree to the factual basis proffered by the government, execute an enforceable waiver of specific rights before or during the plea colloquy, establish that he would receive a fast-track sentence in at least one district offering the program, and submit a thorough account of the likely imprisonment range in the districts where he is eligible, as well as a candid assessment of the number of programs for which he would not qualify. Unless the defendant complies with each of these steps, the sentencing court will be free to reject the argument without comment.

The court was troubled by how much other districts vary in the way they give a reduction for participation in a fast track program. To be sure, that’s troubling, though I tend to think it’s troubling more as a matter of national policy than of being too lenient to someone who is going to spend four years or so in one of our federal prisons.

If Nebraska gives two levels off of the sentencing guidelines, and Texas gives six, should a defendant in Illinois get two levels off or four under a disparity argument, if they meet all the requirements of both Texas and Nebraska? What should happen, of course, is that in Nebraska, defense counsel should start making Fast Track disparity arguments relative to Texas, so that, later, the Illinois case should look to Texas instead of Nebraska.

Which raises another interesting point – judicial districts vary by their adherence to the guidelines. Are those cognizable as a 3553(a)(6) argument? They should be, of course, but I could see how a defense lawyer would be skeptical to make it – the judge you’re trying to convince is the same one you’re saying is outside of the mainstream of harshness.

Back to Ramirez, the court did note that proving that any individual defendant should have been eligible for fast track, and how much, is complicated and will be difficult work. They are absolutely right about that.

The court affirmed the sentences in the case, but modified the sentence of one of the defendants to clarify that he is not required to participate in the Inmate Financial Responsibility Program. That is perhaps not the most significant defense win.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.