Next Stop, Confusion

United States v. Hendry, No. 06-5118-cr (2d Cir. Aprl 9, 2008) (Leval, Calabresi, Wesley, CJJ) (per curiam)

In this decision the Court blows yet another opportunity to clarify the “fast-track” sentencing issue in illegal reentry cases.

The court has already held that district courts are not required to take into account the lower sentences imposed in fast track districts, but has left open the question whether a court has the authority to do so if it deems a reduced sentence warranted. This decision still seems to leave the question open. Here, although Hendry argued that the district judge erroneously believed that he could not consider the absence of a fast-track program in deciding what sentence to impose, the circuit found that the district judge believed that he could consider it - although he elected not to do so - and the opinion does not say whether the judge's belief was correct or incorrect.

The opinion does, however, hold that fast-track sentences in other jurisdictions do not “require” a lower sentence in non-fast-track districts under the parsimony clause. “[S]entences in fast-track districts cannot be compared with sentences in non-fast-track-districts in order to demonstrate that the latter are longer than necessary [because] the two are not directly comparable.”

Comment: This unfortunate decision actually creates more questions than it answers. We still do not know for sure whether a court can consider the fast-track argument. And now, because of the way this opinion is written, we also do not know for sure whether a court can consider the parsimony argument. Does this opinion mean that district courts are not “require[d]” to consider fast-track sentences under the parsimony clause, or that they cannot? It can be read either way.

Fast-Track Train Still Stalled

United States v. Ramirez-Sucar, No. 06-2909-cr (2d Cir. February 20, 2008) (per curiam)

Here is yet another case in which the circuit does not decide whether a district court can consider the lenient illegal-reentry sentences that are regularly imposed in “fast-track” districts as the basis for downward variance. Once again, all the court notes is that a district judge does not have to consider fast-track sentences. But, of course, we already knew that.

Comment: Just decide the *$&@#)$ issue already. It is not even all that controversial any more, in light of Gall and Kimbrough.

Not-So-Fast Track

United States v. Liriano-Blanco, No. 06-2919-cr (2d Cir. December 11, 2007) (Walker, Calabresi, Sack CJJ)

In this unusual case, the circuit entertained an appeal despite a waiver. Liriano-Blanco pled guilty to illegal reentry under a plea agreement in which he agreed to waive any appeal of a sentence of 60 months or less, with a Guideline range of 57 to 71 months. At his sentencing, he asked for a below-Guidelines sentence to avoid “the disparity caused by the existence of fast-track programs in other districts.” The district judge was sympathetic to this argument, and agreed that there was an unwarranted disparity. He indicated that he would like to give a four-level downward departure for this, but thought that he was not permitted to. Erroneously believing that Liriano-Blanco could appeal the sentence, the judge invited him to do so: “Hopefully, maybe, the Second Circuit may disagree with me and [I’ll] be able to give a lesser sentence when they send it back.” After an uncontested criminal history departure, the court sentenced Liriano-Blanco to 46 months and, despite the waiver, he appealed.

Here is how the circuit untangled this mess. First, it observed that the ultimate question - whether a district court can impose a non-Guideline sentence in response to fast-track disparities - is still open in this circuit and is not “frivolous,” since its answer is “not a foregone conclusion.” But it decided it could not answer it here, because of the appeal waiver.

But the court very obligingly gave Liriano-Blanco a second bite at the apple, out of its “concern regarding mistaken statements by [the] sentencing judge about the defendant’s right to appeal.” The district court “relied on the possibility of appeal” in choosing a higher sentence, and the AUSA did not correct the judge’s error by pointing out that the appeal had been waived. The circuit concluded that, although it could not decide the case on the merits, there was nothing in the waiver to bar the court from returning the case to the district court so that, “having been made aware that Liriano-Blanco cannot appeal its decision, it might resentence him if it sees fit to do so.”

As for the fast-track question itself, we’ll just have to wait and see.