“Fast-track” programs in other districts do not create “unwarranted” disparities with non-fast-track districts

In a decision that appears to create a conflict with the court’s decision in U.S. v. Gunter, 462 F.3d 237 (3d Cir. 2006), the Third Circuit has rejected an appeal raising error for the district court’s refusal to consider fast-track disparity in sentencing. U.S. v. Vargas, http://www.ca3.uscourts.gov/opinarch/061368p.pdf, 2/16/07. At sentencing for illegal reentry by an alien, the defense requested that the court consider the disparity between his guideline range and the range he would fall in if he were being sentenced in one of the many districts that has a fast-track program. In those districts, where the Attorney General has granted the U.S. Attorney’s office authority to institute a fast-track program, defendants who plead guilty under the program receive a downward departure under U.S.S.G. § 5K3.1. The district court refused to consider the disparity argument and the Third Circuit affirmed. The court reasoned that the refusal to consider the disparity did not render the sentence unreasonable because the disparity was warranted in light of legislative and executive action in fast-track districts. The court left open a window of possibility in cases in which the defense can show that a defendant under exactly parallel circumstances would have received a lower sentence. The court’s legal reasoning is difficult to reconcile with Gunter, where the court held that section 3553(a) requires courts to consider all circumstances in imposing sentence, including the crack/powder cocaine differential approved by Congress and the Sentencing Commission.