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Sentencing courts have discretion to consider fast-track disparity as a basis for a downward variance

Joining the First Circuit and adding to the circuit split on this issue, the Third Circuit has held that, under the logic of Kimbrough v. United States, 552 U.S. 85 (2007), "it is within a sentencing judge's discretion to consider a variance from the Guidelines on the basis of a fast-track disparity." United States v. Arrelucea-Zamudio, No. 08-4397 (3d Cir. Sept. 14, 2009). The Court began by clarifying its prior holding in United States v. Vargas, 477 F.3d 94 (3d Cir. 2007). While Vargas's holding that it is not an abuse of discretion for a sentencing judge to decline to vary on the basis of fast-track disparity remains viable post-Kimbrough, Vargas can no longer be read to prohibit a sentencing court's discretion to consider a fast-track disparity argument because such a disparity is warranted by Congress under 18 U.S.C. § 3553(a)(6). According to the Court, the fast-track issue is not confined to § 3553(a)(6), but, instead, a sentencing judge has the discretion to consider a fast-track variance under the totality of the § 3553(a) factors.

The Court rejected the Government's and other opposing Circuit's congressional policy arguments as "illusory," "superficial," and "an attempt to manipulate the advisory character of the Guidelines." It found that the fast-track departure scheme did not exemplify the Sentencing Commission's exercise of its characteristic institutional role in developing the Guidelines. Finally, it disagreed with the Government's argument that affording district courts discretion on this issue would create even more disparity.

With regard to what circumstances would justify a downward variance for fast-track disparity, the Third Circuit held that a defendant must establish: (1) that he would qualify for fast-track disposition in a fast-track district and (2) that he would have taken the fast-track guilty plea if offered. Because Mr. Arrelucea-Zamudio had met these requirements in his case, the Third Circuit vacated his sentence and remanded his case for the District Court to consider his fast-track disparity argument.

Mr. Arrelucea-Zamudio was represented by Assistant Federal Public Defender Maggie Moy and Research and Writing Attorney Julie McGrain of the Federal Public Defender's Office for the District of New Jersey (Camden).

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