Seventh Circuit Reverses Position on Fast-Track Sentencing

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.   

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Sentence Explanation in the Seventh Circuit: What’s Good for the Goose . . .

Ever since the Supreme Court converted the federal sentencing guidelines from mandatory to advisory in 2005, I’ve followed with particular interest the case law on how sentences must be explained in the new regime.  Even more specifically, I have focused on the question of when sentencing judges are required to respond expressly to defendants’ arguments for lenience.  (See, for example, my post here.)  I’ve also wondered about the flipside of that question — when must judges respond expressly to prosecutors’ arguments in aggravation? — but cases on this seem far less common.  Last week, though, the Seventh Circuit addressed an issue that seems closely related to my hypothetical question.

In United States v. Glosser (No. 08-4015), the judge made a promise to the defendant at his change-of-plea hearing that he would impose the statutory minimum 120-month sentence in the case, notwithstanding the prosecutor’s suggestion that the government might seek more.  And, indeed, it turned out that the government sought a 210-month sentence in light of firearms found at Glosser’s resident.  The judge, however, mostly stuck to his promise and imposed a 121-month sentence.  The government appealed. 

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Seventh Circuit Cleans Up the “Other Bad Acts” Mess (a Little)

I’ve blogged on a number of occasions about the messy state of the law relating to the admissibility of “other bad acts” evidence (e.g., here and here).  Federal Rule of Evidence 404(b) indicates that other bad acts may not be used against a criminal defendant to show bad character or a propensity to commit crime.  However, the Rule includes a number of exceptions, and courts have not only tended to interpret those exceptions expansively, but have also recognized an additional exception for evidence that is “inextricably intertwined” with proof of a charged offense.

Given the expansively interpreted exceptions set forth in Rule 404(b) itself, the inextricable intertwinement exception seemed to me an unnecessary and confusing addition to the law.  The Seventh Circuit has now indicated its agreement with that view.  

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