Last week, in United States v. Reyes-Hernandez (No. 09-1249), the Seventh Circuit overruled United States v. Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006), and held that sentencing judges may consider “the disparate treatment of immigration defendants that is created by fast-track programs in determining whether a Guidelines sentence is greater than necessary under the § 3553(a) factors” (30).  This is an important decision that deepens a circuit split on the sentencing of illegal reentrants into this country. 

At least sixteen districts, including the Mexican border districts, have developed fast-track programs that offer extraordinary sentencing benefits for illegal reentrants who plead guilty in an especially expedited fashion.  (For background, see my article at 27 Hamline L. Rev. 357.)  However, many other districts, including all of the Seventh Circuit districts, do not offer defendants the fast-track option, which creates wide sentencing disparities in illegal reentry cases.  When the federal sentencing guidelines were converted from mandatory to advisory in 2005, many defendants in non-fast-track districts argued that judges ought to give them the fast-track benefit in order to mitigate the disparities.  Appellate courts, however, uniformly rejected these arguments prior to 2007, when the Supreme Court reemphasized the discretionary nature of federal sentencing in Kimbrough v. United States, 552 U.S. 85.  Post-Kimbrough, three circuits, now joined by the Seventh, have ruled that sentencing judges may consider the fast-track disparities.   

For the reasons set forth in Reyes-Hernandez, I think this position is clearly the correct position if Kimbrough is taken seriously.  The Kimbrough Court held that sentencing judges are permitted to take into account the disparities created by the guidelines’ harsher treatment of crack than powder cocaine, notwithstanding various intimations from Congress that it approved of the disparities.  (For more recent developments in the area of crack sentencing, see my posts here and here.)  Likewise, the subtle ways in which Congress has arguably approved of fast-track disparities should not be enough to overcome the broad discretion sentencing judges have in the post-Booker advisory system.  If attempting to mitigate crack-powder disparities is permissible as a matter of law, then so should attempting to mitigate fast-track disparities.

As the Seventh Circuit made clear, Reyes-Hernandez only permits, and does not require, judges to take fast-track disparities into account.  Moreover, the court signaled some doubt about the appropriateness of giving a below-guidelines sentence based solely on fast-track disparities:

[W]e 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.  (33)

Although now permitted to do, it is a separate (and more difficult) question whether judges should take the fast-track disparity into account.  The problem with lowering one reentrant’s sentence in a non-fast-track district is that it exacerbates disparities relative to other defendants in non-fast-track districts at the same time that it mitigates disparities relative to fast-track districts.  One solution that I proposed a few years ago (see the article here) would be to select a sentence based on the national average sentence imposed in all illegal reentry cases, which would presumably be somewhere between the fast-track and non-fast-track norms.

The Reyes-Hernandez court suggested another way of thinking about the problem, in light of the parsimony principle embodied in § 3553(a).  As the court put it, “It has been observed even by strong defenders of the guidelines that the sentencing ranges called for under the guidelines for unlawful reentry cases are often unreasonably harsh and disproportionate to the seriousness of the offense” (32).  The steep discount in fast-track programs helps to confirm that the full guidelines sentence is not really necessary to achieve proportionality objectives in illegal reentry cases.  This gives sentencing judges a good reason to err on the side of lenience in deciding which set of disparities are most worthwhile to mitigate.

Cross posted at Life Sentences.