The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Pedro Sanchez-Gonzalez waived indictment and pled guilty to a charge of illegal re-entry to the United States after deportation due to commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a). Under the Sentencing Guidelines, Mr. Sanchez-Gonzalez's criminal history is category VI, and his offense level is 21. The advisory range under the Guidelines is 77 to 96 months.
Mr. Sanchez-Gonzalez has asked the Court to impose a sentence below the advisory range. He bases this request, in part, on his contention that a within-Guidelines sentence would result in an unwarranted sentencing disparity, contrary to Congress' directive to sentencing judges to consider "the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6).
Mr. Sanchez-Gonzalez premises this argument on the fact that in approximately sixteen judicial districts, a defendant who, like Mr. Sanchez-Gonzalez, enters a prompt guilty plea to an illegal re-entry charge obtains, or at least is eligible for, an agreed-upon below-Guidelines sentence. Based on the information provided to the Court, this occurs in some districts via charge bargaining -- in other words, an agreement permitting the defendant to plead guilty to a charge that effectively caps his sentence -- and in some districts through an agreed-upon reduction in the Guidelines offense level. Based upon the information provided, it appears, and the Court assumes, that had Mr. Sanchez-Gonzalez been charged in one of those districts, he would face a sentence of thirty months imprisonment at the lowest and eighty-seven months at the highest. The average is roughly fifty-one months.*fn1
In United States v. Medrano-Duran, 386 F. Supp. 2d 943 (N.D. Ill. 2005), this Court accepted a similar argument and concluded that the unavailability in this district of an early disposition or "fast track" program created an unwarranted disparity between the defendant in that case and similarly situated defendants charged in districts that had such a program.
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 -promulgate, pursuant to section 994 of title 28, United States Code. . .
(B) a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney .... Pub. L. 108-21, § 401(m)(2)(B). Pursuant to Congress' directive, the Sentencing Commission adopted the following policy statement in October 2003:
Early Disposition Programs (Policy Statement)
Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides.
In United States v. Martinez-Martinez, 442 F.3d 539 (7th Cir. 2006), the Seventh Circuit rejected an argument similar to the one this Court had accepted in MedranoDuran. The court, referring to the above-quoted provision of the PROTECT Act, stated that "Congress has . . . indicated its approval of fast-track procedures" in illegal re-entry cases. Id. at 542. Citing a House of Representatives report regarding companion legislation, the court stated that Congress intended to provide relief to districts with crowded immigration dockets by recognizing the authority of the courts to grant "limited departures" in accordance with structured early disposition programs. Yet, the report noted that such programs should be reserved for offenses "whose high incidence within the district has imposed an extraordinary strain on the resources of that district as compared to other districts." Congress thus recognized that disparities would exist between the sentences of those in fast-track jurisdictions and those outside of those jurisdictions. Congress further noted that its recognition of early disposition programs "does not confer authority to depart downward on an ad hoc basis in individual cases."
Id. at 542 (citing H.R. Rep. No. 108-48, at 7 (2003)). Relying on this legislative record, the Seventh Circuit concluded that
[g]iven Congress' explicit recognition that fast-track procedures would cause discrepancies, we cannot say that a sentence is unreasonable simply because it was imposed in a district that does not employ an early disposition program. Congress simply has authorized prosecutorial authorities to weigh the benefits of a longer sentence against the burdens of delay and oppressive case management issues and, ...