Lowering Sentences for Illegal Immigrants? Why Judges Should Have Discretion to Vary from the Guidelines Based on Fast-Track Sentencing Disparities

Article excerpt

"Fast-track" programs are selectively implemented programs that give illegal reentry defendants a reduced sentence in exchange for a quick guilty plea and broad waiver of procedural rights. Found predominately in southwest border districts overburdened with illegal immigrants, these programs cause grave sentencing disparities. A defendant in a fast-track district will receive a lower sentence than a similarly situated defendant in a non-fast-track district based simply on the geographical location of arrest. The circuit courts have split on whether a sentencing court in a nonfast-track district is permitted to give a defendant a lower sentence because of this disparity. This Note suggests that the circuit split results from a collision between an immigration policy that focuses on prosecutions and developments in federal sentencing law, including United States v. Booker and Kimbrough v. United States. This Note concludes that, under advisory Guidelines, district judges should have the discretion to grant lower sentences to avoid the disparity that fast-track programs create because the fast-track sentencing scheme falls short of a legislative mandate. Interpretation of Kimbrough provides the essential legal framework for allowing a district court to vary from the Sentencing Guidelines. The legal interpretation of Kimbrough and considerations of transparency, uniformity, and 18 U.S.C. § 3553(a) resolve the current circuit split.


The overall number of immigration offenders sentenced annually increased 664.9% between 1991 to 2007,1 and in the first nine months of fiscal year 2008, immigration-related offenses accounted for 49.2% of the 111,874 new federal prosecutions.2 So far, the Obama administration seems to be on the same course, as the rising trend of immigration prosecutions continued through fiscal year 2009. 3 Government "fast-track" programs were created to manage the administrative burden of these increased immigration cases.4 These programs create a scheme whereby the government accepts a defendant's broad waiver of procedural rights and quick guilty plea in exchange for a deep sentencing discount, allowing the case to be "fast-tracked" through the docket and thus conserving strained prosecutorial resources.5 Since fast-track programs are most effective in areas with high immigration caseloads,6 they have been implemented in only sixteen of the ninety-four federal districts/ typically those with the greatest numbers of immigration offenders.8

Since fast-track programs are selectively implemented, a defendant apprehended in one of these sixteen fast-track areas, like San Diego, receives a lower sentence than a defendant arrested in a non-fast-track district like Manhattan.9 The sentencing disparity between the two districts is substantial: a sentence in a nonfast-track jurisdiction is potentially almost twice as long as a fast-track sentence and the difference for an offender can mean spending as many as fifty-one months or as few as twenty-seven months in prison.10 Despite the fact that the sentencing differences were tied to little more than geography, mandatory United States Sentencing Guidelines ("Guidelines") set these disparate sentences and district judges lacked sufficient discretion to correct these sentencing disparities.11

In 2005, the Supreme Court decided United States ?. Booker and rendered the mandatory Guidelines "effectively advisory," returning sentencing discretion to the judiciary and ushering in a new era in federal sentencing.12 However, Booker alone cannot resolve the fast-track disparity issue because it never specifically addressed the extent to which judges may vary from the advisory Guidelines based on sentencing disparities. A few years later, in Kimbrough ?. United States,13 the Supreme Court elucidated the broad sentencing discretion that Booker returned to the district judges. In Kimbrough, defendants convicted of crack cocaine offenses received harsher sentences than those convicted of powder cocaine offenses. …


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