Despite the courts holding, defendants facing criminal prosecution for illegal re-entry should nevertheless continue to ask for downward departures. Although the requests must be denied, the issue should be preserved for review.
The procedural history of this case is unusual. U.S. v. Martinez-Martinez, 2006 WL 722140 (7th Cir. March 23, 2006), was decided just one day before these cases. In Martinez, the court held that a district courts decision not to grant a downward departure based on the lack of a fast-track program in a district does not render a guideline sentence unreasonable.
The court suggested that such departures may not only not be required, but may be impermissible.
The decision in the case at bar, decided March 24, adopted that suggestion, and held that district courts may not grant such departures at all.
Oddly, despite the importance of the holding, the court did not even recommend that it be published. Only because the government moved that it be published did the court decide to issue it as a published opinion.
However, the opinion is extremely cursory, giving no justification for the holding, save a citation to Martinez.
Other circuits besides the Seventh have adopted the same reasoning as in Martinez. U.S. v. Morales-Chaires, 430 F.3d 1124 (10th Cir. 2005); U.S. v. Martinez-Flores, 428 F.3d 22 (1st Cir. 2005).
However, this is the first case to hold that a below-guideline sentence must be vacated, if imposed to avoid disparity with sentences in districts that have fast-track programs.
Thus, attorneys would be wise to preserve the issue, in case an intercircuit split develops. Attorneys must make sure that the record is clear as to the reason the judge is not imposing a departure.
If the court says that it cannot impose a departure, pursuant to the decision in this case, and would not, even if it could, then there is no grounds for appeal of the sentence, save for reasonableness. U.S. v. Vaughn, 433 F.3d 917, 923-24 (7th Cir. 2006)(comparing the courts jurisdiction to review discretionary decisions not to grant a downward departure, pre- and post-Booker).
If the court says that it cannot impose a sentence below the guideline, but would if it were not for this decision, then there will exist a ground for appeal on this issue, as well as reasonableness.
As noted, no other circuit has yet to rule on this issue. As long as that remains the case, or as long as every other circuit that does consider the issue also holds that a departure is not allowed, then appeals on this issue will be summarily denied.
However, should a split between the circuits develop, there would be a good basis for requesting an en banc panel to review the issue.
As futile as raising the issue is, given the current law, the issue should still be preserved, and can be, with cursory references to U.S. v. Galvez-Barrios, 355 F.Supp.2d 958 (E.D.Wis.2005), and U.S. v. Peralta-Espinoza, 383 F.Supp.2d 1107 (E.D.Wis.2005), two cases in which the district court concluded that it had authority to grant a downward departure to remedy disparity caused by the lack of a fast-track program.
– David Ziemer
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David Ziemer can be reached by email.