The Supreme Court’s decision in
Kimbrough v. United States,
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 reentering 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 *408 below, we grant their requests. We therefore vacate both sentences and remand to the district court for resentencing.
I. BACKGROUND
A. Case No. 09-124.9, Jaime Reyes-Hernandez
Jaime 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. Reyes-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,
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 reentry 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.
*409
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,
II. Analysis
A. Standard of Review
On appeal, we review a district court’s sentence for reasonableness,
United States v. Booker,
We follow a two-step inquiry.
See United States v. Moreno-Padilla,
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 Galiciar-Cardenas,
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.
Arrelucea-Zamudio,
Although the PROTECT Act did not specifically address the practice of charge-bargaining,
Martinez-Martinez,
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 implementation of the directive in this manner has the potential to create unwarranted sentencing disparity.
*411 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,
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 could undermine the goal of the PROTECT Act to reduce the incidence of downward departures.
Sentencing Commission Report, at 67.
But see Rita v. United States,
Shortly after the Sentencing Commission released its report, then-Attorney General John Ashcroft distributed a memorandum setting forth the Department of Justice’s policies and requirements for a district to obtain fast-track status:
In order to obtain Attorney General authorization to implement a “fast track” program, the United States Attorney must submit a proposal that demonstrates that
(A)(1) the district confronts an exceptionally large number of a specific class of offenses within the district, and failure to handle such cases on an expedited or “fast-track” basis would significantly strain prosecutorial and judicial resources available in the district; or
(2) the district confronts some other exceptional local circumstances with respect to a specific class that justifies expedited disposition of such cases;
(B) declination of such cases in favor of state prosecution is either unavailable or clearly unwarranted;
(C) the specific class of cases consists of ones that are highly repetitive and present substantially similar fact scenarios; and
(D) the cases do not involve an offense that has been designated by the Attorney General as a “crime of violence.” See 28 C.F.R. § 28.2 (listing offenses designated by the Attorney General as “crimes of violence” for purposes of the *412 DNA collection provisions of the USA PATRIOT Act).
Memorandum from Attorney General John Ashcroft Setting Forth Justice Department’s “Fash-Track’’ Policies (Sept. 22, 2003), 16 Fed. Sent’g Rep. 134, 134-35 (Dec. 2003) (hereinafter “Attorney General Memorandum”). The defendant in return must agree to the factual basis regarding the offense and waive certain pre-trial motions, the right to appeal, and the right to petition for a writ of habeas corpus, “except on the issue of ineffective assistance of counsel.” Id. at 135.
As noted by the district court in Sanchez-Gonzalez’s case, the development of fast-track programs has been prolific.
See United States v. Sanchez-Gonzalez,
No. 08 CR 609,
C. Procedural Error
The appellants argue that both district courts committed reversible procedural error because the courts found that Seventh Circuit precedent precluded them from considering the sentences given in fast-track districts as part of their 18 U.S.C. § 3553(a) analyses, despite recent Supreme Court decisions.
There is a long-standing principle that we may not overturn circuit precedent without compelling reasons.
Santos v. United States,
The doctrine of stare decisis “imparts authority to a decision, depending on the court that rendered it, merely by virtue of the authority of the rendering court and independently of the quality of its reasoning. The essence of stare decisis is that the mere existence of certain decisions becomes a reason for adhering to their holdings in subsequent cases.”
Tate v. Showboat Marina Casino P’ship,
we give considerable weight to prior decisions of this court unless and until they have been overruled or undermined by the decisions of a higher court, or other supervening developments, such as a statutory overruling. However, we are cognizant of the fact that we are not absolutely bound by them, and must give fair consideration to any substantial argument that a litigant makes for overruling a previous decision.
Haas v. Abrahamson,
Our court has recently recognized that the Supreme Court has “rekindled debate about whether the absence of a fast-track program can be a factor in the choice of sentence.”
United States v. Valadez-Martinez,
There are considerable differences of opinion on this issue among the circuit courts. The Fifth Circuit held that
Kimbrough
did not overturn several other circuits’ decisions that a sentencing court was precluded from considering disparities created by fast-track programs.
United States v. Gomez-Herrera,
The Eleventh Circuit fell in line with the Fifth Circuit, stating:
[T]he most that could possibly be argued is that Kimbrough overruled ... prior precedents holding that a district court cannot vary from the advisory Guidelines based on a disagreement with a Guideline, even where the Sentencing Commission policy judgment, not Congressional direction, underlies the Guideline at issue, and even where that policy judgment did not arise from the Commission’s exercise of its characteristic institutional role.
United States v. Vega-Castillo,
The Ninth Circuit also concluded that
Kimbrough
had no effect on fast-track sentencing arguments.
United States v. Gonzalez-Zotelo,
The First, Third, and Sixth Circuits, however, have reached a different conclusion. The First Circuit held that following
Kimbrough,
“consideration of fast-track disparity is not categorically barred as a sentence-evaluating datum within the overall ambit of 18 U.S.C. § 3553(a).”
United States v. Rodriguez,
The Third Circuit also found the analyses by the Fifth, Ninth, and Eleventh Circuits to be erroneous. The court said that “Hocusing on congressional policy here is illusory.”
United States v. Arrelucea-Zamudio,
Finally, the Sixth Circuit recently joined with the First and Third Circuit. The Sixth Circuit based its decision on
Kimbrough
and held that a fast-track disparity can be the basis of a below-guidelines sentence.
See United States v. Camacho-Arellano,
This ongoing debate and current circuit split are compelling reasons to revisit our precedent. We now turn first to the recent case law in this area.
1. Recent Case Law
In the watershed case of
United States v. Booker,
Further elucidating this new understanding of the guidelines, the Supreme Court decided
Kimbrough
on the very same day that it decided
Gall.
There, the Court made abundantly clear that the guidelines are advisory only and that district court judges are authorized to disagree with the Sentencing Commission, even in a “mine-run case.”
Kimbrough,
More recently the Court expounded on the application of
Booker, Gall,
and
Kimbrough
in
Spears v. United States,
in which it held that a district court had authority to replace the guidelines’ 100:1 ratio for crack and powder cocaine offenses with its own 20:1 ratio.
Finally, in
Vazquez v. United
States,U.S. -,
Kimbrough’s reference to Section 994(h) as an example of Congress directing “the Sentencing Commission” to adopt a Guideline reflecting a particular policy,552 U.S. at 103 ,128 S.Ct. 558 , did not suggest that Congress had bound sentencing courts through Section 994. The court of appeals’ reliance on Kimbrough’s reference to Section 994(h) *416 therefore depends on the additional, unstated, premise that congressional directives to the Sentencing Commission are equally binding on sentencing courts. That premise is incorrect.
See
Brief for the United States at 9,
Vazquez v. United, States
, — U.S. -,
In combination, these cases have cast doubt on the notion that district courts are bound to follow directives issued to the Sentencing Commission by Congress. In light of
Booker, Gall, Kimbrough, Spears,
and
Vazquez,
we recently granted a petition for rehearing en banc in
United States v. Corner,
We overruled
Welton
in
Comer.
Not only does
Comer
overturn
Welton,
but also to a large extent it eviscerates the government’s position in this case. According to
Comer, Welton
mistakenly interpreted the Supreme Court’s reference to § 994(h) in
Kimbrough
“to imply that U.S.S.G. § 4B1.1, which implements § 994(h), should be treated as a statute for the purpose of
Booker
and
Kimbrough.”
Because the parallels between the analyses and holdings of these cases are unquestionably similar to the issues presented in the fast-track context, we now revisit our prior precedent in that area.
2. Guideline § 5K3.1
The government argues that because our prior precedent holds that Congress “expressly approved” fast-track sentencing, § 5K3.1 must be treated as a statute, thus preventing district court judges in non-fast-track districts from disagreeing with that guideline. We do not believe that our precedent so neatly resolves the question. In any event, the government’s reading of our precedent is an overdrawn extension of the PROTECT Act.
Our
pre-Kimbrough
discussion begins with
Martinez-Martinez,
The following day, we held in a brief per curiam opinion based completely on
Martinez-Martinez
that a sentence imposed after a downward departure based solely on the disparity created by early disposition programs in other districts could not be deemed reasonable.
Galiciar-Cardenas,
In another
pre-Kimbrough
case,
United States v. Rodriguez-Rodriguez,
Here, the government argues that despite the wave of change in recent case law, we have stayed the course
post-Kimbrough
on the theory that the fast-track guideline was a primary act of Congress, thereby shielding sentences from these type of challenges. The primary support for the government’s argument is our decision in
United States v. Pacheco-Diaz,
The government assumes too much, however, because although Pacheco-Diaz did post-date Kimbrough, that decision rested entirely on our pr e-Kimbrough cases; in fact, we did not address Kimbrough or Gall. Instead, our limited treatment of the argument in Pacheco-Diaz simply noted that we had “repeatedly rejected arguments that a sentence is unreasonable solely because it was imposed in a jurisdiction that does not make use of fast-track programs.” Id. at 552.
As in Comer, we are compelled now to reconsider our prior interpretation of the fast-track guideline § 5K3.1. We now hold, consistent with the First, Third, and Sixth Circuits, that a district court may consider a fast-track argument when evaluating the applicable § 3553(a) factors. Although we previously held that Congress “expressly approved” fast-track sentencing disparities through the PROTECT Act— thus effectively constraining sentencing judges’ discretion to consider the absence of a fast-track program in their districts under § 5K3.1 — the Supreme Court’s disposition in Vazquez reflects the understanding that Congressional “directives” to the Sentencing Commission are unlike statutes in that they are not equally binding on sentencing courts.
*418 This follows the new paradigm established by Kimbrough and Spears that permits district court judges to disagree categorically with those directives in providing an individual sentence. To the extent that our prior decisions might be read to treat § 5K3.1 as if it had the effect or force of a statute, we were proceeding without the benefit of Kimbrough, Gall, Spears, Vazquez, and Comer. These new developments in the law now refocus our understanding of § 5K3.1 and cause us to view it through a different lens.
Our reading of the previously discussed policy statements published by the Sentencing Commission compels us to conclude that the Commission clearly acted outside its characteristic institutional role in creating § 5K3.1.
Kimbrough
instructs sentencing courts to give
less
deference to guidelines that are not the product of the Commission acting in “its characteristic institutional role,” in which it typically implements guidelines only after taking into account “empirical data and national experience.”
In fact, it is arguable whether there is even a Congressional directive “embedded” in the fast-track guideline. We simply know that Congress authorized the Sentencing Commission to develop a guideline providing “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.” PROTECT Act, § 401(m)(2)(B),
Importantly, in the text of the PROTECT Act, Congress did not specifically address a district court’s discretion with respect to sentencing in non-fast-track districts. While Congress “explicitly” gave the Attorney General the ability to establish early disposition programs district by district, and instructed the Sentencing Commission to promulgate a guideline to implement those programs, it certainly did not explicitly forbid non-fast-track districts from taking into account the effect of fast-track dispositions under the § 3553(a) factors.
If Congress wanted to prohibit judges in non-fast-track districts from disagreeing with § 5K3.1 based on policy, Congress could have issued such a directive in unequivocal terminology.
See Comer,
Congress certainly did not instruct the Commission to link § 5K3.1 to statutory máximums or mínimums,
cf. Corner,
This decision, therefore, overturns Galiciar-Cardenas, but only to the extent that this case held that § 5K3.1 differs from other guidelines, such that a district court must not reduce a defendant’s sentence based on fast-track disparity. 1 Because the disposition of our other fast-track cases did not hinge on Galiciar-Cardenas, we need not revisit them.
We pause to recognize an issue raised in prior cases — what § 3553(a) factor should be used by district courts to account for fast-track disparities? In most cases, the primary argument of appellants was that their sentences were unreasonable because the district courts created an “unwarranted” sentencing disparity in contravention of § 3553(a)(6), which provides that the district court must consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”
See Pacheco-Diaz,
The Third Circuit addressed this same issue in Arrelucea-Zamudio:
The fast-track issue should not be confined to subsection (a)(6), which concerns “avoiding] unwarranted sentencing disparities.” Instead, we hold that a sentencing judge has the discretion to consider a variance under the totality of the § 3553(a) factors (rather than one factor in isolation) on the basis of a defendant’s fast-track argument, and that such a variance would be reasonable in an appropriate case.
We analogize this issue to the crack cocaine question dealt with in Kimbrough. In the cocaine Guidelines context, the Supreme Court stated that a sentencing “judge must include the Guidelines range in the array of factors warranting consideration. The judge may determine, however, that, in the particular case, a within-Guidelines sen *420 tence is ‘greater than necessary’ to serve the objectives of sentencing.” Kimbrough, 552 U.S. at 91, 128 S.Ct. 558 (quoting 18 U.S.C. § 3553(a)). The Court held that, “[i]n making that determination, the judge may consider the disparity between the Guidelines treatment of crack and powder cocaine offenses,” id,., and, “[t]o reach an appropriate sentence ... disparities must be weighed against the other § 3553(a) factors.” Id. at 108 [128 S.Ct. 558 ]. By logical extension we believe a judge may also consider the disparate treatment of immigration defendants that is created by fast-track programs in determining whether a Guidelines sentence is greater than necessary under the § 3553(a) factors.
In fact, it is important to note that a district court could reach the decision of whether to depart from the guideline through the normal course of its § 3553(a) analysis without restating a fast-track “unwarranted” disparity analysis.
See United States v. Bartlett,
Following this logic, we previously stated that “§ 3553 permits a judge to reduce one defendant’s sentence because of another’s lenient sentence — not
because of
§ 3553(a)(6), but
despite
it.”
Bartlett,
It has been observed by even strong defenders of the guidelines that the sentencing ranges called for under the guidelines for unlawful reentry cases are often unreasonably harsh and disproportionate to the seriousness of the offense.
See, e.g.,
Paul G. Cassell,
Too Severe?: A Defense of
*421
the Federal Sentencing Guidelines (and a Critique of the Federal Mandatory Minimums),
56 Stan. L.Rev. 1017, 1019 (2004) (expressing view that immigration sentences are too severe). And, as previously discussed, it is clear under
Kimbrough
and
Spears
that district courts have sufficient flexibility to vary from the harsh sentences called for by the guidelines in appropriate cases' without the need to determine whether any disparity created by the existence of fast-track programs is “unwarranted.” Although district courts may arrive at the same outcome whether they choose to consider the fast-track argument or not, we clarify today that the absence of a fast-track program and the resulting difference in the guidelines range should not be
categorically excluded
as a sentencing consideration.
See Rodriguez,
We note, however, that we find it unnecessary to base our conclusion on the argument that the practice of informal charge-bargaining programs provides an alternative justification for imposing a below-guidelines sentence.
See Camacho-Arellano,
Our holding merely permits the sentencing judge to consider a facially obvious disparity created by fast-track programs among the totality of § 3553(a) factors considered. However, we provide a word of caution that a departure from the guidelines premised solely on a fast-track disparity may still be unreasonable. To withstand scrutiny, a departure should result from a holistic and meaningful review of all relevant § 3553(a) factors.
S. Separation of Powers
The government argues that providing district court judges in non-fast-track districts the discretion to consider fast-track disparity as part of their § 3553(a) evaluation infringes on the executive branch’s power. The government argues that because the PROTECT Act authorized the Attorney General to set up fast-track programs on a district-by-distriet basis, sentencing disparities arising from the programs are simply the byproduct of a proper exercise of prosecutorial discretion. The government supports its argument by noting that within fast-track districts the government must decide whether to offer a defendant the opportunity to opt into the program, and then the government must make a motion to the sentencing judge requesting the departure.
While we are acutely aware and respectful of our sister branches of government, we find no separation of powers violation here. As we have been careful to articulate, our holding does not create a de facto fast-track program in our circuit’s non-fast-track districts, nor did the appellants make such a request. The First Circuit also addressed this particular argument:
While the decision to institute a fast-track program in a particular judicial district is the Attorney General’s, the ultimate authority to grant a fast-track departure lies with the sentencing court.... [T]he appellant asks that we gauge the impact of disparate sentencing in crafting his sentence. Because this is an unquestionably judicial function, we discern no separation of powers concerns here.
Rodriguez,
This reasoning also holds true with respect to the government’s argument that
*422
it is the prosecutor’s decision whether to make a motion to the sentencing judge. As we noted in
Comer,
“[a] motion to a court’s discretion is a motion, not to its inclination, but to its judgment.”
Finally, we note that nothing about our holding precludes the sentencing judge from accounting for the Sentencing Commission’s policy statement that warns against undermining the effectiveness of fast-track programs. Sentencing Commission Report, at 67. In addition, “a district court is not afforded unfettered discretion in sentencing defendants. It is constrained by [the appellate court’s] procedural and substantive reasonableness review.”
Arreluceas-Zamudio,
III. Conclusion
We hold that § 5K3.1 should be treated as any other guideline, thereby affording district court judges the ability to consider the absence of a fast-track program in crafting an individual sentence. Because the judges in the district courts were precluded by our prior precedent from considering the defendants’ fast-track arguments, we do not determine today whether the appellants would have in fact been eligible for such consideration, nor do we opine on the reasonableness of their sentences. The sentences of Reyes-Hernandez’s and Sanchez^Gonzalez’s are Vacated, and their cases are Remanded for re-sentencing consistent with this opinion.
Notes
. This opinion has been circulated to all active judges under Circuit Rule 40(e). No judge favored hearing this case en banc.