Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 1:08-cr-00658 & 1:08-cr-00609-Samuel Der-Yeghiayan and Matthew F. Kennelly, Judges.
The opinion of the court was delivered by: KANNE,*fn1 Circuit Judge.
Before KANNE and TINDER, Circuit Judges, and GRIESBACH, District Judge.
The Supreme Court's decision in Kimbrough v. United States, 552 U.S. 85 (2007), taken together with other recent cases, has rekindled debate about whether sentencing disparities created by fast-track programs can be considered by district court judges in non-fast-track districts when crafting individual sentences. We address that issue today. Because both cases present the same issue on appeal, we consolidate them for the purpose of our review.
In the first case, Jaime Reyes-Hernandez pled guilty for illegally re-entering the United States after he had been removed twice following a conviction for the aggravated felony of robbery. The district court sentenced him to forty-one months' imprisonment, the most lenient sentence available under the applicable guideline range for his offense level and criminal history category. In the second case, Pedro Sanchez-Gonzalez pled guilty to illegally re-entering the United States after being removed following a conviction for the aggravated felony of domestic battery. The district court sentenced him to seventy-seven months' imprisonment, which was at the lowest end of the guidelines range for his offense level and criminal history category.
In both cases, the district court refused to even consider imposing below-guidelines sentences, thereby refuting defendants' claims that they should receive lesser sentences based on comparisons to sentences imposed on similarly situated individuals prosecuted in "fast-track" districts. Both defendants ask us on appeal to abandon our precedent and provide district courts with the latitude to consider fast-track-type sentences as part of their 18 U.S.C. § 3553(a) analyses. For reasons stated below, we grant their requests. We therefore vacate both sentences and remand to the district court for resentencing.
A. Case No. 09-1249, Jaime Reyes-Hernandez
Jamie Reyes-Hernandez is a native and citizen of Mexico. In 1998, he was convicted of robbery in the United States, an aggravated felony, and sentenced to four years in prison. One year following his conviction, he was released from prison and removed to Mexico. He returned to the United States shortly thereafter, but he was again removed to Mexico in 2005. In July of 2008, authorities found Reyes-Hernandez once again in the United States without permission from the Attorney General.
Following his 2008 arrest, Reyes-Hernandez was indicted for and pled guilty to illegally re-entering the United States after being removed in violation of 8 U.S.C. § 1326(a) and (b)(2). The pre-sentence report (PSR) calculated Reyes-Hernandez's advisory guideline range at forty-one to fifty-one months' imprisonment based on a total offense level of twenty-one and a criminal history category of II.
Prior to the sentencing hearing, Reyes-Hernandez submitted a sentencing memorandum objecting to the PSR and requesting a below-guidelines range sentence of twenty-four months-the equivalent of a four-level reduction from the PSR's total offense level of twenty-one. Reyes-Hernandez argued that the district's lack of a fast-track program created an unwarranted sentencing disparity, and that the court had authority to consider and grant a departure under Kimbrough. Reyez-Hernandez argued that geography was the only difference between him and other defendants who received lower sentences.
At the sentencing hearing, Judge Der-Yeghiayan delivered a comprehensive oral statement addressing his consideration of the sentencing factors in 18 U.S.C. § 3553, as well as the parties' oral and written submissions. The judge then addressed Reyes-Hernandez's fast-track sentencing disparity argument. Citing United States v. Galicia-Cardenas, 443 F.3d 553, 555 (7th Cir. 2006), the judge said that "the Seventh Circuit has addressed and rejected this very argument," concluding that such discrepancies or disparities are not unreasonable. (App. at 19.) The judge then sentenced Reyes-Hernandez to forty-one months' imprisonment, the lowest end of the advisory guidelines range.
B. Case No. 09-1551, Pedro Sanchez-Gonzalez
Pedro Sanchez-Gonzalez's case is factually similar to Reyes-Hernandez and presents the same issue on appeal. Sanchez-Gonzalez is a Mexican citizen who was arrested in 2005 for theft and illegal re-entry following removal pursuant to a conviction of domestic battery, an aggravated felony, in violation of 8 U.S.C. § 1326(a). He waived the indictment and pled guilty pursuant to a plea declaration.
The imprisonment guideline range for Sanchez-Gonzalez was seventy-seven to ninety-six months, based on a total offense level of twenty-one and a criminal history category of VI. Sanchez-Gonzalez requested a below-guidelines sentence of fifty-one months, arguing that under 18 U.S.C. § 3553(a)(6), a within-guidelines sentence would create an unwarranted disparity with similar defendants in fast-track districts. He also argued that the district court had authority under § 3553(a)'s parsimony clause to consider the existence of disparities created by fast-track programs when determining an appropriate sentence.
Judge Kennelly entered a memorandum opinion discussing Sanchez-Gonzalez's request for a below-guidelines sentence. Although Judge Kennelly found that he was bound by our decisions in Galicia-Cardenas and United States v. Martinez-Martinez, 442 F.3d 539 (7th Cir. 2006)-and was not therefore permitted to take into account the fast-track argument-he opined that "as a matter of policy... it is unjust to permit sentencing disparities based on the fortuity of the judicial district in which a defendant in an illegal re-entry case is charged." (App. at 8.) Sanchez-Gonzalez was sentenced to seventy-seven months' imprisonment, the bottom of the guidelines range.
On appeal, we review a district court's sentence for reasonableness, United States v. Booker, 543 U.S. 220, 260-62 (2005); United States v. Vaughn, 433 F.3d 917, 923-24 (7th Cir. 2006), under an abuse of discretion standard, Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Scott, 555 F.3d 605, 608 (7th Cir. 2009). We presume that a sentence within a properly calculated guidelines range is reasonable, but "there is no corresponding presumption of unreasonableness for a non-guidelines sentence." United States v. Jackson, 547 F.3d 786, 792 (7th Cir. 2008) (citing United States v. Omole, 523 F.3d 691, 696 (7th Cir. 2008)). Moreover, we review de novo a district court's interpretation of the guidelines. United States v. Diekemper, 604 F.3d 345, 355 (7th Cir. 2010); see also United States v. Dote, 328 F.3d 919, 925 (7th Cir. 2003) ("We review a district court's determination that it had no discretion to depart downward de novo.").
We follow a two-step inquiry. See United States v. Moreno-Padilla, 602 F.3d 802, 810 (7th Cir. 2010). First, we determine whether the district court committed any procedural error, "such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range." Gall, 552 U.S. at 51; see also Jackson, 547 F.3d at 792. Second, if we determine there was no procedural error, we then examine "the substantive reasonableness of the sentence" itself. Gall, 552 U.S. at 51; see also United States v. Abbas, 560 F.3d 660, 666-68 (7th Cir. 2009).
B. History of Fast-Track Programs
Although much ink has already been used by this and other courts in describing the genesis of fast-track programs, we feel it necessary to provide an abridged history of these programs because the disposition of our cases today turns on the gloss that recent case law has placed on this background.
Fast-track, or "early disposition" programs, were used in federal district courts as early as 1994. See GaliciaCardenas, 443 F.3d at 555 (citing Alan D. Bersin, Reinventing Immigration Law Enforcement in the Southern District of California, 8 Fed. Sentencing Rep. 254 (1996)). The programs emerged in states bordering Mexico in an effort to curtail overwhelming immigration case loads. See Martinez-Martinez, 442 F.3d at 542 (citing United States v. Morales-Chaires, 430 F.3d 1124, 1127 (10th Cir. 2005)). At the time, United States Attorneys used "charge-bargaining" as a mechanism to speed the disposition of these cases. In essence, they offered to recommend more lenient sentences in exchange for pre-indictment guilty pleas and waivers of appellate rights. Id.; see also United States v. Arrelucea-Zamudio, 581 F.3d 142, 145 (3d Cir. 2009) (citing U.S. Sentencing Comm'n, Report to Congress: Downward Departures from the Federal Sentencing Guidelines, at 65 (Oct. 2003), available at http://www. ussc.gov/departrpt03/departrpt03.pdf (hereinafter "Sentencing Commission Report")).
Almost ten years later, Congress formalized the practice by enacting the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub. L. No. 108-21, 117 Stat. 650 (2003). The PROTECT Act was designed as part of an overarching initiative to respond to a purported increase in departures from the guidelines and provide meaningful appellate review of such cases. ArreluceaZamudio, 581 F.3d at 145 (noting that the Act was passed pre-Booker). In an amendment to a companion bill, the Child Abduction Prevention Act-which was passed before the PROTECT Act-the House of Representatives attached a report expressing its intent for legislating in this area. According to the commentary, Congress sanctioned "limited departures" under structured early disposition programs, although such programs were to be reserved only for offenses "whose high incidence within the district has imposed an extraordinary strain on the resources of that district as compared to other districts." H.R. Rep. No. 108-48, at 7 (2003) (emphasis added); see also Martinez-Martinez, 442 F.3d at 542. Congress also commented that the bill "does not confer authority to depart downward on an ad hoc basis in individual cases." H.R. Rep. No. 108-48, at 7.
Although the PROTECT Act did not specifically address the practice of charge-bargaining, MartinezMartinez, 442 F.3d at 542, it nonetheless authorized the Attorney General to establish official fast-track programs on a district-by-district basis, United States v. Rodriguez, 527 F.3d 221, 223 (1st Cir. 2008). It further directed the Sentencing Commission to "develop a guideline 'authorizing a downward departure of not more than 4 levels if the Government files a motion for such a departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney.' " Martinez-Martinez, 442 F.3d at 542 (quoting the PROTECT Act, § 401(m)(2)(B), 117 Stat. at 675).
As a result, the Sentencing Commission created U.S.S.G. § 5K3.1, which provides: "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." The Sentencing Commission also filed a report with Congress, which addressed the sentencing disparity paradigm created by § 5K3.1. Although this report is not binding here, it provides insight into the Sentencing Commission's perspective in enacting the guideline. In pertinent part, the report stated:
The Department of Justice requested that the Commission implement the directive regarding the early disposition programs in section 401(m) of the PROTECT Act in a similar unfettered manner by merely restating the legislative language and "leav[ing] to the sentencing court the extent of the departure under these early disposition programs." The Commission notes that imple- mentation of the directive in this manner has the potential to create unwarranted sentencing disparity.
Defendants sentenced in districts without authorized early disposition programs, however, can be expected to receive longer sentences than similarly-situated defendants in districts with such programs. This type of geographical disparity appears to be at odds with the overall Sentencing Reform Act goal of reducing unwarranted sentencing disparity among similarly-situated offenders.
Sentencing Commission Report, at 66-67 (emphasis added) (footnote omitted). The Second Circuit in United States v. Mejia, 461 F.3d 158, 163-64 (2d Cir. 2006), a pre-Kimbrough case, and the Fifth Circuit in United States v. Gomez-Herrera, 523 F.3d 554, 561-62 (5th Cir. 2008), made particular note that the Sentencing Commission appeared to reject the idea of non-fast-track districts compensating for the disparity with downward departures:
Furthermore, sentencing courts in districts without early disposition programs, particularly those in districts that adjoin districts with such programs, may feel pressured to employ other measures-downward departures in particular- to reach similar sentencing outcomes for similarly situated defendants. This potential response by sentencing courts ...