The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Miguel Medrano-Duran pled guilty to a one-count indictment charging him with illegal re-entry after deportation due to commission of an aggravated felony in violation of 8 U.S.C. § 1326(a). On August 4, 2005, the Court sentenced Medrano-Duran to a term of forty-one months imprisonment, which was below the advisory Sentencing Guidelines range of fifty-seven to seventy-one months. The purpose of this Memorandum Opinion is to explain the Court's imposition of a sentence outside the advisory range.
The presentence report reflects that Medrano-Duran was twenty-three years old at the time of the offense. When he was sixteen, in or around 1997, Medrano-Duran left his home in Mexico and came to this country. He worked a variety of jobs for temporary service agencies. In 2000, at age nineteen, he was convicted of criminal trespass to a vehicle, pled guilty, and was given a sentence of one year conditional discharge (a form of non-reporting probation). In 2001, at age twenty, Medrano-Duran several other individuals forcibly took a wristwatch from the victim and ran off when a witness told them to leave the victim alone. He was charged with robbery, pled guilty, and was sentenced to a term of 180 days in the Cook County Jail. Later that same year, while still twenty years old, Medrano-Duran approached an unlocked vehicle, yelled at the occupant (who was sleeping) to give him his money, and then grabbed the victim's bag. He was charged with burglary from a motor vehicle and theft, pled guilty, and received a sentence of unknown length, served in a "boot camp" facility run by the Cook County Department of Corrections.
Medrano-Duran was deported to Mexico in January 2004. In October 2004, he was found in Mount Prospect, Illinois and was arrested for illegal re-entry. There is no indication that he committed any other crimes upon his return.
Following indictment, Medrano-Duran filed no pretrial motions and ultimately pled guilty in April 2005. This is Medrano-Duran's first and only illegal re-entry offense.
Medrano-Duran's parents and several of his siblings live in Mexico. He has three older siblings who live in Illinois. Medrano-Duran is married to a woman who still lives in Mexico and has two young children, who Medrano-Duran says he plans to support. As indicated earlier, while in the United States, he was gainfully employed, working for various temporary service agencies.
Based on Medrano-Duran's Sentencing Guidelines criminal history category of IV and his offense level of twenty-one, the advisory Guideline sentencing range was fifty-seven to seventy-one months. Medrano-Duran sought a sentence below this range, arguing that the unavailability in this District of an early disposition or "fast track" program for persons charged with illegal re-entry created an unwarranted sentencing disparity that the Court should take into account.
Fast track programs for illegal re-entry cases have existed for a number of years in some districts, primarily districts on the Mexican border with a large number of illegal re-entry cases. Generally speaking, prosecutors in those districts have agreed to significantly reduced sentences in exchange for prompt guilty pleas. The purpose of these programs was and is to facilitate prompt and easy disposition of cases to reduce the burdens they impose in those districts -- there was not enough physical space to house detained defendants, and there were not enough prosecutors to handle all the cases brought to them.
During the period when the Sentencing Guidelines were understood to be mandatory in their application, several Circuits held that the existence of early disposition programs in some districts did not warrant a departure from the Guideline sentencing range for defendants in other districts. See, e.g., United States v. Armenta-Castro, 227 F.3d 1255, 1257-60 (10th Cir. 2000); United States v. Banuelos-Rodriguez, 215 F.3d 969, 972-78 (9th Cir. 2000) (en banc); United States v. Bonnet-Frullon, 212 F.3d 692, 697-710 (2d Cir. 2000). The Courts in these cases ruled that the Guidelines proscribed consideration of sentencing disparities that resulted from the exercise of prosecutorial discretion. See, e.g., Armenta-Castro, 227 F.3d at 1258.
Since United States v. Booker, 125 S.Ct. 738 (2005), however, the Sentencing Guidelines are no longer mandatory in their application. As a result of this change in the law governing sentencing, the pre-Booker decisions reference above that rejected departures from the then-mandatory Guideline range on the ground the Guidelines precluded such departures certainly cannot be ignored, but they can no longer be considered controlling law.
Pursuant to Booker, courts are to determine sentences pursuant to the factors set forth in 18 U.S.C. § 3553(a). Section 3553(a) directs a court to impose a sentence that is sufficient, but not greater than necessary, to comply with certain statutory purposes, including the need for the sentence to reflect the seriousness of the crime; promote respect for the law; provide just punishment; afford adequate deterrence; protect the public from further crimes by the defendant; and provide the defendant with needed training, medical care, or correctional treatment in the most effective manner. See 18 U.S.C. § 3553(a)(2). In considering the particular sentence to be imposed, a court is to consider those same factors, as well as the nature and circumstances of the offense; the history and characteristics of the defendant; the kinds of sentences available; the sentencing range under the Sentencing Guidelines; any pertinent policy statements by the Sentencing Commission; "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct"; and the need to provide restitution to victims of the crime. Id. § 3553(a)(1) - (7).
Medrano-Duran argues that the unavailability of an early disposition program in this District gives rise to an unwarranted disparity that the Court should take into account pursuant to § 3553(a)(6). The government's primary argument against giving Medrano-Duran a departure is that the disparity cannot be considered unwarranted, because Congress has specifically approved the institution of fast track programs at the discretion of the Attorney General.
In 2003, Congress adopted the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, otherwise known as the "PROTECT Act." Section 401(m)(2)(B) of the PROTECT Act directed the Sentencing Commission to -- ...