Court rules no downward departure

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A downward departure, imposed to eliminate disparity between defendants due to the district’s lack of a fast-track program for illegal re-entry cases, is impermissible.

The Seventh Circuit last week decided to publish a Mar. 24 per curiam decision, which had adopted dicta from an opinion issued the day before that suggested as much.

Antelmo Vega-Lopez was charged in Wisconsin federal court with entering the United States without permission after having previously been deported.

He pleaded guilty, and was sentenced to 30 months imprisonment by U.S. District Court Judge John C. Shabaz — within the 27-33 month guideline range. Vega-Lopez had requested a sentence below the guidelines, arguing that his sentence was disparately high relative to defendants sentenced in districts with a fast-track program. The court declined the request.

Alejandro Galicia-Cardenas was charged with the same offense, and also pleaded guilty. Although his guideline range was 41 to 51 months, U.S. District Court Judge J.P. Stadtmueller imposed a sentence of 27 months, after granting his request for a downward departure to avoid disparity.

Vega-Lopez appealed, as did the government in Galicia-Cardenas’ case, and the Seventh Circuit consolidated the two cases.

The Seventh Circuit affirmed Vega-Lopez’s guideline sentence, and vacated Galicia-Cardenas’ below-guideline sentence.

Fast-tracking began in 1994 in the Southern District of California, when the district, in order to deal with more than 600,000 arrests annually at its border with Mexico, adopted an early disposition program. Other districts in border states followed suit with programs of their own.

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In 2003, Congress formally approved such programs, as part of the PROTECT Act. The Sentencing Commission later authorized up to a four-level downward departure for defendants who resolve their cases through fast-track programs.

The Seventh Circuit held, however, that the goal of avoiding disparity between districts with and without fast-track programs is not grounds for a downward departure.

The court wrote, “In a recent decision, United States v. Martinez-Martinez, 2006 WL 722140 (7th Cir. March 23, 2006), we rejected a claim that the defendant’s 41-month sentence (the low end of the advisory guideline range) was unreasonable because Indiana does not have a fast-track program. We went on to observe, ‘Given 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.’ By the same logic, we cannot say that a sentence imposed after a downward departure is by itself reasonable because a district does not have a fast-track program.”

Relying on Martinez, the court held that Vega-Lopez’s sentence was proper, and affirmed it, but that Galicia-Cardenas’ must be resentenced without a credit based on Wisconsin’s lack of a fast-track program.

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David Ziemer can be reached by email.