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.