Judicial discretion to consider sentencing disparities created by fast-track programs: resolving the post-Kimbrough circuit split.

• Author: McKay, Tom

INTRODUCTION

In the wake of United States v. Booker, (1) in which the Supreme Court held that the United States Sentencing Guidelines ("Guidelines") are advisory, (2) the battle between the government and federal courts to redefine judicial discretion in sentencing has played out in a number of different contexts. The disparity between Guidelines sentences for crack and powder cocaine offenders initially rose to the forefront. Resolving a circuit split, the Supreme Court held in Kimbrough v. United States (3) that judges, based on a policy disagreement with these Guidelines, may consider the disparity between sentences for crack and powder cocaine offenders in granting a downward departure. (4) Since Kimbrough, judges have cited disagreements with various other provisions of the Guidelines in granting downward departures, but the government has contested and circuit courts have not always upheld their authority to do so. One of the most divisive examples of this conflict has arisen in the context of so-called "fast-track" sentencing programs. (5)

Fast-track programs allow prosecutors in certain districts to offer below-Guidelines sentences in exchange for a defendant's guilty plea and waiver of certain rights. They are most often used in the context of illegal reentry cases, which overwhelm the dockets of many districts along the Southwestern border, yet they have slowly expanded to many non-border districts and are now used for a variety of different immigration-related offenses. (6) Statistics vary by district and by case, but the difference between receiving a fast-track sentence and not can result in significant disparities. For example, the sentences of two otherwise identical defendants arrested in New Jersey and Southern California could differ by more than three years because of the fast-track program in the latter. (7)

Prior to Kimbrough, defendants in non-fast-track jurisdictions were largely unsuccessful in arguing that sentencing judges should be able to consider the disparity between fast-track and non-fast-track sentences as grounds for granting a downward departure from the Guidelines. (8) In light of Kimbrough, however, four circuit courts have agreed with this argument, holding that judges may consider fast-track disparities when sentencing. (9) Three other circuits have distinguished the fast-track context from Kimbrough, holding that while Kimbrough authorized judges to depart based on a disagreement with Guidelines policy, fast-track programs actually reflect a congressional policy with which judges may not disagree. (10)

This Note will argue that the correct resolution of this circuit split is the pro-discretion stance taken by the First, Third, Sixth, and Seventh Circuits. First, the anti-discretion circuits' characterization of the fast-track Guidelines as binding congressional policy is faulty. Those circuits read an implicit congressional policy into Congress's statutory directive to the Sentencing Commission to implement the fast-track Guidelines. (11) Yet, in the similar context of career-offender provisions, the Solicitor General recently abandoned the argument that such a directive constitutes a congressional policy that is binding on sentencing courts. (12) The similarity between these two contexts undermines the primary rationale behind the anti-discretion position. Various secondary arguments offered in support of the anti-discretion position--fear of judge-created disparity, respect for prosecutorial discretion, and the claim that non-fast-track defendants are not similarly situated to fast-track defendants--are also unpersuasive. Finally, the pro-discretion position is also the correct outcome from a policy standpoint and is in line with the modern trend in judicial sentencing discretion. Because judges can simply depart downward based on the 18 U.S.C. [section] 3553(a) factors to be considered in imposing a sentence, forbidding judges from adding the fast-track disparity to the compendium of factors considered would only encourage "institutionalized subterfuge" and result in a distorted standard of review on appeal. (13)

Part I of this Note will discuss the landscape of modern judicial sentencing discretion, detailing the Guidelines, goals of sentencing, and the landmark decisions of Booker and Kimbrough. Part II will explain the history of fast-track sentencing, from its origins in the mid-1990s to its authorization by Congress and the status of these programs today, concluding with a brief discussion of fast-track case law prior to Kimbrough. Part III will address the interaction of fast-track programs and judicial sentencing discretion, examining the post-Kimbrough circuit split in depth and summarizing the arguments made by the circuit courts in support of their conclusions. Part IV will first develop the analogy between fast-track and career-offender Guidelines, arguing that recent developments in the career-offender context undermine the main argument relied upon by the anti-discretion circuits. It will then address the three secondary arguments often raised by anti-discretion advocates, and conclude with a policy discussion of why the pro-discretion position is the correct resolution of the issue.

1. MODERN DEVELOPMENTS IN JUDICIAL SENTENCING DISCRETION

   Proper understanding of the fast-track circuit split requires some context in the modern history of federal sentencing law.

   1. Federal Sentencing Guidelines and the Goals of Sentencing

      Prior to 1984, federal courts used an "indeterminate" sentencing system, meaning that judges had broad discretion to grant sentences as they saw fit, limited only by statutory maximums and minimums. (14) This discretion created a great deal of uncertainty and arbitrariness in sentencing. Mounting criticism (15) of this system led to the Sentencing Reform Act of 1984, which established a new federal sentencing regime. (16) The Act set forth the goals of sentencing: to promote respect for the law and provide just punishment; to deter criminal conduct; to protect the public from further crimes of the defendant; and to rehabilitate the defendant. (17) The Act also contained an important limitation on sentencing, the so-called "parsimony clause," which says that "the court shall impose a sentence sufficient, but not greater than necessary" to comply with these goals. (18) Sentencing judges were directed to consider a compendium of factors, which included the goals of sentencing and the need to avoid unwarranted disparities among similarly situated defendants. (19) Finally, to avoid the kind of disparate sentences created by the indeterminate system, the Act circumscribed judicial discretion by requiring that, except in rare circumstances, (20) sentences must fall within the range specified by the Guidelines. (21)

      In order to determine these Guidelines, the Act created the United States Sentencing Commission ("Commission"). (22) While a sentencing judge is traditionally tasked with considering only the defendant in front of him and the facts and circumstances of that particular case, the Commission has the ability to look broadly at the effect of each class of crimes on the nation as a whole. By taking into account empirical data and looking at crime on a national scale, the Commission, at least theoretically, (23) is able to dictate a range of sentences that roughly approximates what is needed to achieve the goals of sentencing. (24)

      The Commission thereby promulgated the Guidelines, which became effective in 1987. (25) The process of calculating the Guidelines range is a mechanical, step-by-step process. (26) The first step a judge must take is to assign a base "offense level," which is derived from the underlying conduct. (27) Next, the judge must adjust the base offense level to account for a host of aggravating or mitigating circumstances, which may relate to the characteristics of the offense, the defendant, or relevant post-conviction conduct such as acceptance of responsibility. (28) This is the stage at which a downward departure pursuant to a fast-track program affects a defendant's sentence by reducing his offense level. Next, the judge must determine the defendant's "criminal history category," which is based on the defendant's prior criminal record. (29) Defendants are placed in categories ranging from I to VI, with VI reflecting the most serious criminal history. The judge then refers to the Sentencing Table, which places "offense level" and "criminal history category" on the vertical and horizontal axes, and finds the Guidelines sentencing range at the intersection of the defendant's two scores. (30) Judges are then instructed to sentence the defendant within this range, subject to very limited circumstances in which a judge might depart. (31) Thus, judicial sentencing discretion was severely limited by the Guidelines, and the Commission was allowed to essentially "micromanage the sentencing function of federal judges." (32) The Guidelines also transferred power to prosecutors, who set the base offense level with their charging decisions, thereby exerting greater control over the likely sentencing outcome. (33) Not surprisingly, these restrictive Guidelines were criticized by judges. (34) In 2005, however, they became distinctly less restrictive.

   2. Booker Makes the Guidelines Advisory

      Freddie Joe Booker was convicted of possession with intent to distribute at least fifty grams of crack cocaine. (35) Because of his criminal history and the quantity of drugs found, Booker's Guidelines sentence was 210-262 months in prison. (36) However, the judge concluded by a preponderance of the evidence, at a post-trial sentencing proceeding without a jury, that Booker had possessed an additional 566 grams of crack and that he had obstructed justice. (37) These findings increased Booker's Guidelines sentence to 360 months to life, and the judge sentenced him to 360 months. (38) Writing for a five-Justice majority of the Supreme...