United States v. Reyes-Hernandez

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-1249 & 09-1551

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JAIME R EYES-H ERNANDEZ,

Defendant-Appellant.

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

P EDRO S ANCHEZ-G ONZALEZ,

Defendant-Appellant.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 1:08-cr-00658 & 1:08-cr-00609—Samuel Der-Yeghiayan

and Matthew F. Kennelly, Judges.

A RGUED N OVEMBER 13, 2009—D ECIDED O CTOBER 7, 2010

2 Nos. 09-1249 & 09-1551

BeforeK ANNE and T INDER, Circuit Judges, and

G RIESBACH, District Judge.Œ

K ANNE, Circuit Judge. The Supreme Court’s decision

in Kimbrough v. United States, 552 U.S. 85 (2007), taken

together with other recent cases, has rekindled debate

about whether sentencing disparities created by fast-

track programs can be considered by district court

judges in non-fast-track districts when crafting indi-

vidual sentences. We address that issue today. Because

both cases present the same issue on appeal, we con-

solidate them for the purpose of our review.

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 ag-

gravated 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 re-entering 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

Œ

Hon. William C. Griesbach, District Judge for the Eastern

District of Wisconsin, sitting by designation.

Nos. 09-1249 & 09-1551 3

defendants’ claims that they should receive lesser sen-

tences 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

below, we grant their requests. We therefore vacate

both sentences and remand to the district court for

resentencing.

I. B ACKGROUND

A. Case No. 09-1249, Jaime Reyes-Hernandez

Jamie 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

4 Nos. 09-1249 & 09-1551

based on a total offense level of twenty-one and a crim-

inal 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. Reyez-Hernandez

argued that geography was the only difference between

him and other defendants who received lower sentences.

At the sentencing hearing, Judge Der-Yeghiayan deliv-

ered 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, 443 F.3d 553, 555 (7th Cir. 2006), the

judge said that “the Seventh Circuit has addressed

and rejected this very argument,” concluding that such

discrepancies or disparities are not unreasonable.

(App. at 19.) The judge then sentenced Reyes-Hernandez

to forty-one months’ imprisonment, the lowest end of

the advisory guidelines range.

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

Nos. 09-1249 & 09-1551 5

appeal. Sanchez-Gonzalez is a Mexican citizen who was

arrested in 2005 for theft and illegal re-entry 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.

Judge Kennelly entered a memorandum opinion dis-

cussing Sanchez-Gonzalez’s request for a below-guide-

lines sentence. Although Judge Kennelly found that he

was bound by our decisions in Galicia-Cardenas and

United States v. Martinez-Martinez, 442 F.3d 539 (7th Cir.

2006)—and was not therefore permitted to take into

account the fast-track argument—he opined that “as a

matter of policy . . . it is unjust to permit sentencing

disparities based on the fortuity of the judicial district

in which a defendant in an illegal reentry case is

charged.” (App. at 8.) Sanchez-Gonzalez was sentenced

to seventy-seven months’ imprisonment, the bottom of

the guidelines range.

6 Nos. 09-1249 & 09-1551

II. A NALYSIS

A. Standard of Review

On appeal, we review a district court’s sentence for

reasonableness, United States v. Booker, 543 U.S. 220, 260-

62 (2005); United States v. Vaughn, 433 F.3d 917, 923-24

(7th Cir. 2006), under an abuse of discretion standard,

Gall v. United States, 552 U.S. 38, 46 (2007); United States

v. Scott, 555 F.3d 605, 608 (7th Cir. 2009). We presume

that a sentence within a properly calculated guidelines

range is reasonable, but “there is no corresponding pre-

sumption of unreasonableness for a non-guidelines sen-

tence.” United States v. Jackson, 547 F.3d 786, 792 (7th Cir.

2008) (citing United States v. Omole, 523 F.3d 691, 696

(7th Cir. 2008)). Moreover, we review de novo a district

court’s interpretation of the guidelines. United States v.

Diekemper, 604 F.3d 345, 355 (7th Cir. 2010); see also

United States v. Dote, 328 F.3d 919, 925 (7th Cir. 2003) (“We

review a district court’s determination that it had no

discretion to depart downward de novo.”).

We follow a two-step inquiry. See United States v.

Moreno-Padilla, 602 F.3d 802, 810 (7th Cir. 2010). First,

we determine whether the district court committed

any procedural error, “such as failing to calculate (or

improperly calculating) the Guidelines range, treating

the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any de-

viation from the Guidelines range.” Gall, 552 U.S. at 51;

see also Jackson, 547 F.3d at 792. Second, if we determine

Nos. 09-1249 & 09-1551 7

there was no procedural error, we then examine

“the substantive reasonableness of the sentence” itself.

Gall, 552 U.S. at 51; see also United States v. Abbas, 560

F.3d 660, 666-68 (7th Cir. 2009).

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 pro-

grams, 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 Galicia-

Cardenas, 443 F.3d at 555 (citing Alan D. Bersin, Reinventing

Immigration Law Enforcement in the Southern District

of California, 8 Fed. Sentencing Rep. 254 (1996)). The

programs emerged in states bordering Mexico in an

effort to curtail overwhelming immigration case loads.

See Martinez-Martinez, 442 F.3d at 542 (citing United

States v. Morales-Chaires, 430 F.3d 1124, 1127 (10th Cir.

2005)). At the time, United States Attorneys used “charge-

bargaining” as a mechanism to speed the disposition

of these cases. In essence, they offered to recommend

more lenient sentences in exchange for pre-indictment

guilty pleas and waivers of appellate rights. Id.; see

also United States v. Arrelucea-Zamudio, 581 F.3d 142, 145 (3d

Cir. 2009) (citing U.S. Sentencing Comm’n, Report to

Congress: Downward Departures from the Federal Sentencing

8 Nos. 09-1249 & 09-1551

Guidelines, at 65 (Oct. 2003), available at http://www.

ussc.gov/departrpt03/departrpt03.pdf (hereinafter “Sen-

tencing Commission Report”)).

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 mean-

ingful appellate review of such cases. Arrelucea-

Zamudio, 581 F.3d at 145 (noting that the Act was passed

pre-Booker). In an amendment to a companion bill, the

Child Abduction Prevention Act—which was passed

before the PROTECT Act—the House of Representatives

attached a report expressing its intent for legislating in

this area. According to the commentary, Congress sanc-

tioned “limited departures” under structured early dis-

position programs, although such programs were to be

reserved only for offenses “whose high incidence within

the district has imposed an extraordinary strain on the

resources of that district as compared to other districts.”

H.R. Rep. No. 108-48, at 7 (2003) (emphasis added); see

also Martinez-Martinez, 442 F.3d at 542. Congress also

commented that the bill “does not confer authority to

depart downward on an ad hoc basis in individual

cases.” H.R. Rep. No. 108-48, at 7.

Although the PROTECT Act did not specifically

address the practice of charge-bargaining, Martinez-

Martinez, 442 F.3d at 542, it nonetheless authorized

Nos. 09-1249 & 09-1551 9

the Attorney General to establish official fast-track pro-

grams on a district-by-district basis, United States v.

Rodriguez, 527 F.3d 221, 223 (1st Cir. 2008). It further

directed the Sentencing Commission to “develop a guide-

line ‘authorizing 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

authorized by the Attorney General and the United

States Attorney.’ ” Martinez-Martinez, 442 F.3d at 542

(quoting the PROTECT Act, § 401(m)(2)(B), 117 Stat. at 675).

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 sen-

tencing 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 man-

ner 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 imple-

10 Nos. 09-1249 & 09-1551

mentation of the directive in this manner has the

potential to create unwarranted sentencing disparity.

...

Defendants sentenced in districts without autho-

rized early disposition programs, however, can be

expected to receive longer sentences than simi-

larly-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, 461 F.3d 158, 163-64 (2d Cir. 2006), a pre-

Kimbrough case, and the Fifth Circuit in United States v.

Gomez-Herrera, 523 F.3d 554, 561-62 (5th Cir. 2008), made

particular note that the Sentencing Commission ap-

peared to reject the idea of non-fast-track districts com-

pensating for the disparity with downward departures:

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.

Nos. 09-1249 & 09-1551 11

Sentencing Commission Report, at 67. But see Rita v.

United States, 551 U.S. 338, 347-48 (2007) (listing the

Sentencing Commission’s policy statements as one of

the many non-binding factors to be taken into account

by the district court when sentencing). The Sentencing

Commission added that because little guidance was

provided to sentencing courts, implementation of the

fast-track guideline might lead to undesirable sentencing

disparity. Accordingly, the Commission left the door

open to a later examination of the impact of the

programs: “the Commission agrees with the Department

of Justice’s comment that ‘[i]t may be appropriate at

some later date to review how these early disposition

programs are actually being implemented and whether

further guidance to the courts might be useful.’ ” Sen-

tencing Commission Report, at 67.

Shortly after the Sentencing Commission released

its report, then-Attorney General John Ashcroft distrib-

uted 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 authoriza-

tion 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 signifi-

cantly strain prosecutorial and judicial resources

available in the district; or

12 Nos. 09-1249 & 09-1551

(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 unwar-

ranted;

(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 DNA

collection provisions of the USA PATRIOT Act).

Memorandum from Attorney General John Ashcroft Setting

Forth Justice Department’s “Fast-Track” Policies (Sept. 22,

2003), 16 Fed. Sent’g Rep. 134, 134-35 (Dec. 2003) (herein-

after “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, 2009 WL 310901, at *3 (N.D. Ill. February 9, 2009) (ref-

erencing United States v. Medrano-Duran, 386 F. Supp. 2d

Nos. 09-1249 & 09-1551 13

943, 948 (N.D. Ill. 2005), which provided that early dis-

position programs were authorized in districts such

as Oregon, Idaho, Nebraska, North Dakota, and the

Western District of Washington); see also Thomas E.

Gorman, Comment, Fast-Track Sentencing Disparity: Re-

reading Congressional Intent to Resolve the Circuit Split,

77 U. Chi. L. Rev. 479, 490-93 (2010). “As of February 2008,

the Attorney General has authorized fast-track programs

in 20 districts, though only 16 of those have illegal

reentry programs . . . .” Arrelucea-Zamudio, 581 F.3d at 146.

None of the districts in the Seventh Circuit are fast-

track districts.

C. Procedural Error

The appellants argue that both district courts com-

mitted 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, 461 F.3d 886, 891 (7th Cir. 2006);

McClain v. Retail Food Employers Joint Pension Plan, 413

F.3d 582, 586 (7th Cir. 2005); United States v. Walton, 255

F.3d 437, 443 (7th Cir. 2001); Mid-Am. Tablewares, Inc. v.

Mogi Trading Co., 100 F.3d 1353, 1364 (7th Cir. 1996).

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 ren-

14 Nos. 09-1249 & 09-1551

dering 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 subse-

quent cases.”

Tate v. Showboat Marina Casino P’ship, 431 F.3d 580, 583

(7th Cir. 2005) (quoting Midlock v. Apple Vacations West, Inc.,

406 F.3d 453, 457 (7th Cir. 2005)). Therefore,

we give considerable weight to prior decisions of

this court unless and until they have been over-

ruled or undermined by the decisions of a higher

court, or other supervening developments, such

as a statutory overruling. However, we are cogni-

zant 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, 910 F.2d 384, 393 (7th Cir. 1990)

(internal quotation marks and citation omitted). Thus,

although “it is rarely appropriate to overrule circuit

precedent just to move from one side of a conflict to

another,” United States v. Corner, 598 F.3d 411, 414 (7th

Cir. 2010) (en banc), “[p]recedents are not sacrosanct;

we have overruled many.” Buchmeier v. United States,

581 F.3d 561, 565 (7th Cir. 2009) (en banc).

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, 295 F. App’x

832, 835 (7th Cir. 2008) (declining to address the issue

Nos. 09-1249 & 09-1551 15

because the sentencing court in fact considered and

rejected defendant’s fast-track disparity argument); see

also United States v. Ortega-Vargas, 337 F. App’x 571, 574

(7th Cir. 2009) (refusing to consider the effect of

Kimbrough on circuit precedent because the district court

neither addressed defendant’s fast-track argument nor

stated that it was precluded from considering it). And

district courts in our circuit have repeatedly implored

us to address this issue. See, e.g., United States v. Gramillo-

Garcia, 632 F. Supp. 2d 837, 841 (N.D. Ill. 2009) (declining

to wait for us to issue our opinion in Sanchez-Gonzalez

because doing so might cause the defendant to serve

more time “than what would otherwise be [the district

court’s] prescribed custodial sentence”); Medrano-Duran,

386 F. Supp. 2d at 948 (imposing a sentence below the

advisory guideline range based on the disparity created

by fast-track districts); Sanchez-Gonzalez, 2009 WL 310901,

at *3 (finding the court was precluded from considering

the fast-track argument, but that it was unjust as

a matter of policy).

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, 523 F.3d 554, 562-63 (5th

Cir. 2008). Because Congress authorized fast-track pro-

grams without amending § 3553(a)(6), it implicitly in-

tended sentencing disparity among similarly situated

defendants to occur, and therefore such disparity

was not unwarranted. Id. The court stated that “Rita or

Kimbrough addressed only a district court’s discretion

16 Nos. 09-1249 & 09-1551

to vary from the Guidelines based on a disagreement

with Guideline, not Congressional, policy.” Id. at 563.

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 ad-

visory Guidelines based on a disagreement with

a Guideline, even where the Sentencing Commis-

sion policy judgment, not Congressional direc-

tion, 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, 540 F.3d 1235, 1239 (11th

Cir. 2008). Significantly, though, even if the Eleventh

Circuit found that Kimbrough was at odds with its

prior holdings, its prior precedent rule restricted the

panel from overturning its prior cases. Id. at 1236-37 n.3

(stating that “prior precedent must be followed unless

the prior precedent has been overruled by this court

en banc or by the United States Supreme Court”). In a

vigorous dissent, Judge Barkett observed that Kimbrough

“flatly rejected” the panel’s position, and argued that

“sentencing courts should not infer from the PROTECT

Act that they can never deviate from the Guidelines

based on ‘fast-track’ disparities,” id. at 1241 n.4, because

Kimbrough held that it is improper to read any “ ‘implicit

directive . . . into congressional silence,’ ” id. (quoting

Kimbrough, 552 U.S. at 87). The dissent further disagreed

Nos. 09-1249 & 09-1551 17

that the court was limited by its prior precedent rule

because the panel was authorized to give “full effect” to

intervening Supreme Court decisions when necessary.

Id. at 1242.

The Ninth Circuit also concluded that Kimbrough had

no effect on fast-track sentencing arguments. United

States v. Gonzalez-Zotelo, 556 F.3d 736, 739-41 (9th Cir.

2009). The court reiterated that sentencing disparities

resulting from fast-track programs were not “unwar-

ranted,” citing our holding in Galicia-Cardenas among

others, id. at 739, and that district courts may not

disregard congressional policy, id. at 741.

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-evalu-

ating datum within the overall ambit of 18 U.S.C.

§ 3553(a).” United States v. Rodriguez, 527 F.3d 221, 229 (1st

Cir. 2008). The court noted that the conclusion in Gomez-

Herrera could only be reached through “heavy reliance

on inference and implication about congressional intent,”

and that “Kimbrough made pellucid that when Congress

exercises its power to bar district courts from using a

particular sentencing rationale, it does so by the use of

unequivocal terminology.” Id. at 229-30.

The Third Circuit also found the analyses by the Fifth,

Ninth, and Eleventh Circuits to be erroneous. The court

said that “[f]ocusing on congressional policy here is

illusory.” United States v. Arrelucea-Zamudio, 581 F.3d

142, 150-51 (3d Cir. 2009) (stating that “the PROTECT

18 Nos. 09-1249 & 09-1551

Act contains no express congressional fast-track directive

that would constrain a sentencing judge’s discretion to

vary from the Guidelines,” and if Congress wanted to

limit this discretion, “it has the power to amend the

pertinent statute . . . [but] has not done so here”). In fact,

the government declined to even argue that congressional

policy limited a sentencing court’s discretion to con-

sider fast-track-caused disparities. Id. at 150 n.8. More-

over, the court specifically rejected the Eleventh Cir-

cuit’s view of Kimbrough, stating that it was premised

on the “superficial . . . factual distinction” between crack

and powder cocaine sentencing disparities and fast-

track sentencing disparities. Id. The court held that sen-

tencing courts are permitted to consider a fast-track

argument under § 3553(a). Id. at 157.

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, 614 F.3d 244 (6th Cir. 2010). Importantly,

the court noted that the holding in Kimbrough and in

Spears v. United States, 129 S. Ct. 840 (2009)—that sentenc-

ing judges may vary from the guidelines based on

policy disagreements—“is not limited to the crack/powder

cocaine context.” Id. at *16.

This ongoing debate and current circuit split are com-

pelling reasons to revisit our precedent. We now turn

first to the recent case law in this area.

Nos. 09-1249 & 09-1551 19

1. Recent Case Law

In the watershed case of United States v. Booker, 543

U.S. 220, 246 (2005), the Supreme Court held that the

sentencing guidelines are advisory only. In Gall v.

United States, the Court reaffirmed that the guidelines

are advisory only, 552 U.S. 38, 46 (2007), and further

provided that in considering the § 3553(a) factors the

sentencing judge “may not presume that the Guidelines

range is reasonable.” Id. at 50. Likewise, appellate courts

are not permitted to apply a presumption of unreason-

ableness to sentences falling outside of the recom-

mended guidelines range. Id. at 47 (citing Rita, 551 U.S.

at 354-55). The Court explained that “[t]he sentencing

judge is in a superior position to find facts and judge

their import under § 3553(a) in the individual case,” id. at

52 (internal quotation marks omitted), because “[t]he

sentencing judge has access to, and greater familiarity

with, the individual case and the individual defendant

before him than the Commission or the appeals court,’ ” id.

at 51-52 (quoting Rita, 551 U.S. at 357-58); Rodriguez,

527 F.3d at 225 (noting that in Gall, the Court em-

phasized that “district courts have wide latitude in

making individualized sentencing determinations”).

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, 552 U.S. at 109. Significantly,

20 Nos. 09-1249 & 09-1551

the Court rejected the government’s position that the

guideline adopting the 100-to-1 ratio for crack and powder

cocaine was binding on district courts because it was

effectively sanctioned by Congress. Id.; see also Arrelucea-

Zamudio, 581 F.3d at 148. As such, the Court “decline[d]

to read any implicit directive into . . . congressional

silence.” Kimbrough, 552 U.S. at 87.

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. 129 S. Ct. at 843-

44. The Court said that “the correct interpretation”

of Kimbrough is that the district court may vary from

the guidelines “based solely on its view that the 100-to-1

ratio embodied in the sentencing guidelines for the treat-

ment of crack cocaine versus powder cocaine creates

‘an unwarranted disparity within the meaning of

§ 3553(a),’ and is ‘at odds with § 3553(a).’ ” Id. at 842

(quoting United States v. Spears, 533 F.3d 715, 719 (8th Cir.

2008) (en banc) (Colloton, J., dissenting)). Therefore,

the sentencing courts are “entitled to reject and vary

categorically from the crack-cocaine Guidelines based on

a policy disagreement with those Guidelines.” Id. at 843-

44 (emphasis added). We subsequently considered the

impact of these cases en banc, reaching the conclusion

that “Kimbrough and Spears . . . mean that district judges

are at liberty to reject any Guideline on policy grounds—

though they must act reasonably when using that

power.” Corner, 598 F.3d at 415.

Nos. 09-1249 & 09-1551 21

Finally, in Vazquez v. United States, 130 S. Ct. 1135

(2010), the Court vacated an Eleventh Circuit opinion

that held that sentencing courts could not disagree with

congressionally dictated policy expressed in the career

offender guidelines. See United States v. Vazquez, 558 F.3d

1224, 1227-28 (11th Cir. 2009). Rather, the Court was

receptive to the Solicitor General’s position that:

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, 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) there-

fore 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, 130 S. Ct. 1135 (2010) (No. 09-5370).

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, 598 F.3d 411 (7th Cir. 2010), to

reconsider our holding in United States v. Welton, 583

F.3d 494 (7th Cir. 2009), the primary authority on which

the government in the cases at hand appears to rely.

22 Nos. 09-1249 & 09-1551

Basing our reasoning on the Eleventh Circuit’s decision

in Vazquez, in Welton we held that a sentencing court

lacks authority to vary from the career offender guide-

lines based on the “career offender crack/powder dis-

parity” because the “disparity is the result of a legisla-

tive act.” Id. at 499. We reached this conclusion by inter-

preting Kimbrough to mean that § 994(h) “reflects a Con-

gressional policy with which a sentencing court may not

disagree” and is one “instance where Congress has ex-

pressly incorporated a sentencing policy into the Guide-

lines.” 583 F.3d at 498-99.

We overruled Welton in Corner. Not only does Corner

overturn Welton, but also to a large extent it eviscerates

the government’s position in this case. According to

Corner, 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.” 598 F.3d at 415. Importantly, Corner ex-

plained that a congressional directive to the Sentencing

Commission to implement a particular guideline does

not satisfy Kimbrough’s requirement that Congress must

“direct sentencing practices in express terms” in order

to limit judicial discretion. Id. (quoting Kimbrough, 552

U.S. at 103). We did, however, qualify our holding in

Corner by noting that district court judges “must imple-

ment all statutes, whether or not the judges agree

with them”; but we added that “Booker, Kimbrough, and

Spears hold that the floors (and ceilings) in Guidelines

are not legally binding.” Id. at 415-16.

Nos. 09-1249 & 09-1551 23

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 prece-

dent 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 dis-

tricts from disagreeing with that guideline. We do not be-

lieve that our precedent so neatly resolves the question.

In any event, the government’s reading of our prece-

dent is an overdrawn extension of the PROTECT Act.

Our pre-Kimbrough discussion begins with Martinez-

Martinez, 442 F.3d 539. In Martinez-Martinez, after sum-

marizing the history of the PROTECT Act and guideline

§ 5K3.1, we commented that “[g]iven Congress’[s]

explicit recognition that fast-track procedures would

cause discrepancies, we cannot say that a sentence is

unreasonable simply because it was imposed in a district

that does not employ an early disposition program.” Id.

at 542. We therefore concluded that the sentencing dis-

parity created by fast-track programs can be “con-

sidered appropriately as a single, and not controlling,

factor.” Id. at 543. Without the benefit of the two-prong

analytical framework currently used by courts of ap-

peals, Gall, 552 U.S. at 51, our holding that Martinez-

Martinez’s sentence should be affirmed was based on

24 Nos. 09-1249 & 09-1551

the substantive reasonableness of the sentence pro-

vided; it did not address procedural error.

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 pro-

grams in other districts could not be deemed reasonable.

Galicia-Cardenas, 443 F.3d at 555. We observed that be-

cause Congress “directed” the Sentencing Commission to

develop a policy statement implementing the PROTECT

Act, Congress explicitly recognized “that fast track proce-

dures would cause discrepancies.” Id. Accordingly,

we concluded the district courts must look to “other

factors” to determine if defendants are deserving of

sentences below the advisory guidelines range. Id.

In another pre-Kimbrough case, United States v. Rodriguez-

Rodriguez, 453 F.3d 458, 462 (7th Cir. 2006), we relied

upon Martinez-Martinez’s holding “that a sentence in a

district without a fast-track program need not be re-

duced,” and Galicia-Cardenas’s clarification “that it must

not be reduced.” And we again confirmed our pre-

Kimbrough reasoning in United States v. Roche-Martinez,

467 F.3d 591, 595-96 (7th Cir. 2006) and United States v.

Lopez-Estrada, 201 F. App’x 371, 373-74 (7th Cir. 2006)

(unpublished). We pause to note, however, that while

these cases recognized that Galicia-Cardenas prohibits

consideration of the fast-track disparity, none of their

outcomes appear tethered to Galicia-Cardenas’s extreme

interpretation of § 5K3.1.

Here, the government argues that despite the wave

of change in recent case law, we have stayed the course

Nos. 09-1249 & 09-1551 25

post-Kimbrough on the theory that the fast-track guide-

line 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, 506 F.3d 545 (7th Cir.

2007), where we followed Martinez-Martinez, Galicia-

Cardenas, and Roche-Martinez.

The government assumes too much, however, because

although Pacheco-Diaz did post-date Kimbrough, that

decision rested entirely on our pre-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 argu-

ments 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 Corner, 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 con-

sider a fast-track argument when evaluating the ap-

plicable § 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

Vasquez reflects the understanding that Congressional

“directives” to the Sentencing Commission are unlike

statutes in that they are not equally binding on sen-

tencing courts.

26 Nos. 09-1249 & 09-1551

This follows the new paradigm established by Kim-

brough and Spears that permits district court judges to

disagree categorically with those directives in providing

an individual sentence. To the extent that our prior deci-

sions 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, Vasquez, and Corner.

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 state-

ments published by the Sentencing Commission com-

pels 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.” 552 U.S. at 109; Rodriguez, 527 F.3d at 227.

In fact, it is arguable whether there is even a Congressio-

nal directive “embedded” in the fast-track guideline.

We simply know that Congress authorized the Sen-

tencing 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), 117 Stat. at 675. Further, the con-

gressional report issued in connection with the Child

Abduction Prevention Act, which was passed prior to

Nos. 09-1249 & 09-1551 27

the PROTECT Act, speaks only in general terms of Con-

gress’s reasons for legislating in the area. Without more,

we hesitate to construe the meaning of such a report in

terms of defining § 5K3.1 as a statute.

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 Com-

mission 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 Corner, 598 F.3d at 416

(“Congress has shown that it knows how to direct sen-

tencing practices in express terms. For example, Congress

has specifically required the Sentencing Commission to

set Guidelines sentences for serious recidivist offenders

‘at or near’ the statutory maximum. 28 U.S.C. § 994 (h).”)

(quoting Kimbrough, 552 U.S. at 103); see also Arrelucea-

Zamudio, 581 F.3d at 151 (“If Congress does not want

district courts to exercise their judicial function to sen-

tence defendants based on the facts and circumstances

of each case under the guidance of the § 3553(a) factors,

then it has the power to amend the pertinent statute. It

has not done so here.”). It did not issue such a directive.

28 Nos. 09-1249 & 09-1551

Congress certainly did not instruct the Commission to

link § 5K3.1 to statutory maximums or minimums, cf.

Corner, 598 F.3d at 416, nor does § 5K3.1 explicitly

address appropriate sentences in non-fast-track dis-

tricts. We are instructed that we must “decline[] to read

any implicit directive into the congressional silence,”

Kimbrough, 552 U.S. at 87. Because there is no express

restriction of judicial consideration of fast-track

disparity in the plain language of the PROTECT Act,

we refuse to read any such restriction into § 5K3.1. See

Camacho-Arellano, 614 F.3d at 249 (“In effect, while Con-

gress intended to create room for courts in fast-track

jurisdictions to treat defendants in a certain manner, it

did nothing to prohibit judges in non-fast-track districts

from treating defendants the same way.”); Arrelucea-

Zamudio, 581 F.3d at 151 (“The PROTECT Act contains

no express congressional fast-track directive that would

constrain a sentencing judge’s discretion to vary from

the Guidelines.”); Rodriguez, 527 F.3d at 227 (“The Act,

by its terms, neither forbids nor discourages the use of

a particular sentencing rationale, and it says nothing

about a district court’s discretion to deviate from the

guidelines based on fast-track disparity.”).

This decision, therefore, overturns Galicia-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 dispar-

Nos. 09-1249 & 09-1551 29

ity.1 Because the disposition of our other fast-track cases

did not hinge on Galicia-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 sen-

tences were unreasonable because the district courts

created an “unwarranted” sentencing disparity in con-

travention of § 3553(a)(6), which provides that the

district court must consider “the need to avoid unwar-

ranted sentence disparities among defendants with

similar records who have been found guilty of similar

conduct.” See Pacheco-Diaz, 506 F.3d at 552 (“[T]he

district court failed to consider the unwarranted sen-

tencing disparity that resulted from his lack of access to

a fast-track program.”); Roche-Martinez, 467 F.3d at 595

(noting that appellant argued “the absence of a fast-

track program in the Northern District of Illinois has

resulted in an unfair sentencing disparity”); Galicia-

Cardenas, 443 F.3d at 555; Martinez-Martinez, 442 F.3d at

541. The appellants in this case do not cabin their argu-

ments so narrowly. Instead, they argue that the district

courts should be able to consider fast-track disparities

as part of their § 3553(a) analyses, not as the sole reason

to depart from the guidelines range.

The Third Circuit addressed this same issue in

Arrelucea-Zamudio:

1

This opinion has been circulated to all active judges under

Circuit Rule 40(e). No judge favored hearing this case en banc.

30 Nos. 09-1249 & 09-1551

The fast-track issue should not be confined to

subsection (a)(6), which concerns “avoid[ing]

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 iso-

lation) 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 Guide-

lines range in the array of factors warranting

consideration. The judge may determine, how-

ever, that, in the particular case, a within-Guide-

lines sentence is ‘greater than necessary’ to serve

the objectives of sentencing.” Kimbrough, 552 U.S.

at 91 (quoting 18 U.S.C. § 3553(a)). The Court held

that, “[i]n making that determination, the judge

may consider the disparity between the Guide-

lines treatment of crack and powder cocaine of-

fenses,” id., and, “[t]o reach an appropriate sen-

tence . . . disparities must be weighed against the

other § 3553(a) factors.” Id. at 108. By logical ex-

tension we believe a judge may also consider the

disparate treatment of immigration defendants

that is created by fast-track programs in deter-

mining whether a Guidelines sentence is greater

than necessary under the § 3553(a) factors.

Nos. 09-1249 & 09-1551 31

581 F.3d at 149 (emphasis added). We agree with the

Third Circuit that consideration of the fast-track argu-

ment as part of the sentencing judge’s § 3553(a) evalua-

tion does not constitute procedural error. Because a

defendant must first have been eligible for fast-track

status had it been available and show that he would

have in fact pursued the option (by pleading guilty

and waiving his appellate rights), and because “no judge

is required to sentence at a variance with a Guideline”

even if “at liberty to do so,” Corner, 598 F.3d at 416; see

also United States v. Filipiak, 466 F.3d 582, 583 (7th Cir.

2006), the impact of our decision here is underwhelming.

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, 567 F.3d

901, 908-09 (7th Cir. 2009). “Section 3553(a)(6) directs

district courts to consider the need to avoid unwar-

ranted disparities—along with other § 3553(a) fac-

tors—when imposing sentences.” Kimbrough, 552 U.S. at

108 (emphasis added) (citation omitted). A district court

should consider all relevant § 3553(a) factors collec-

tively, not just what is in § 3553(a)(6). Bartlett, 567 F.3d at

908-09; Rodriguez, 527 F.3d at 228 (explaining that “a

sentencing judge should engage in a more holistic in-

quiry” than whether fast-track disparity is “unwar-

ranted” under § 3553(a)(6)). For example, a district court

may alternatively look to the “parsimony provision” of

§ 3553(a), which provides that a district court must

impose sentences that are “sufficient, but not greater

than necessary” to comply with the sentencing goals of

32 Nos. 09-1249 & 09-1551

the statute. Kimbrough, 552 U.S. at 101, 111; Rodriguez,

527 F.3d at 228. Additionally, “district courts must take

account of sentencing practices in other courts” as part

of their § 3553(a) analysis. Kimbrough, 552 U.S. at 108.

Following this logic, we previously stated that Ҥ 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, 567 F.3d at 908. We

further explained that the district court may afford

other factors greater weight than the need to avoid

“unwarranted” disparities, “and the court is free to have

its own policy about which differences are ‘unwar-

ranted.’ ” Id. at 908-09. It is, therefore, reasonable that

a sentencing court could consider sentencing practices

in other jurisdictions in determining whether a par-

ticular defendant’s guideline sentence was “greater

than necessary.”

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 unrea-

sonably harsh and disproportionate to the seriousness

of the offense. See, e.g., Paul G. Cassell, Too Severe?: A

Defense of the Federal Sentencing Guidelines (and a Critique

of the Federal Mandatory Minimums), 56 Stan. L. Rev. 1017,

1019 (2004) (expressing view that immigration sen-

tences 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 sen-

tences 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 “unwar-

Nos. 09-1249 & 09-1551 33

ranted.” 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, 527 F.3d

at 229.

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 alter-

native justification for imposing a below-guidelines

sentence. See Camacho-Arellano, 614 F.3d at 250. The

theory is that these programs were never formally autho-

rized by Congress, and therefore the increased disparity

they create must be “unwarranted.” Because we find

that § 5K3.1 should be treated as a guideline and not as

a statute, we need not discuss this theory further.

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 consid-

ered. 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 with-

stand scrutiny, a departure should result from a holistic

and meaningful review of all relevant § 3553(a) factors.

3. Separation of Powers

The government argues that providing district court

judges in non-fast-track districts the discretion to con-

34 Nos. 09-1249 & 09-1551

sider fast-track disparity as part of their § 3553(a) evalua-

tion infringes on the executive branch’s power. The

government argues that because the PROTECT Act autho-

rized the Attorney General to set up fast-track programs

on a district-by-district basis, sentencing disparities

arising from the programs are simply the by-product of

a proper exercise of prosecutorial discretion. The gov-

ernment 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 articu-

late, 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 pro-

gram 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 func-

tion, we discern no separation of powers concerns

here.

Rodriguez, 527 F.3d at 230 (citation omitted).

This reasoning also holds true with respect to the gov-

ernment’s argument that it is the prosecutor’s decision

Nos. 09-1249 & 09-1551 35

whether to make a motion to the sentencing judge. As

we noted in Corner, “[a] motion to a court’s discretion is

a motion, not to its inclination, but to its judgment.”

598 F.3d at 415 (internal quotation marks omitted). There-

fore, regardless of whether a defendant is within a sanc-

tioned fast-track district, the sentencing judge must

independently determine whether to accept a motion for

a downward departure, no matter which party submits

it. These programs merely highlight the appropriate

balance between prosecutorial and judicial discretion;

they do not define bright lines of separation.

Finally, we note that nothing about our holding pre-

cludes the sentencing judge from accounting for the

Sentencing Commission’s policy statement that warns

against undermining the effectiveness of fast-track pro-

grams. Sentencing Commission Report, at 67. In addi-

tion, “a district court is not afforded unfettered discre-

tion in sentencing defendants. It is constrained by [the

appellate court’s] procedural and substantive reason-

ableness review.” Arrelucea-Zamudio, 581 F.3d at 156.

We therefore find the government’s separation of

powers argument unpersuasive.

III. C ONCLUSION

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 prece-

dent from considering the defendants’ fast-track argu-

36 Nos. 09-1249 & 09-1551

ments, we do not determine today whether the appel-

lants would have in fact been eligible for such consid-

eration, nor do we opine on the reasonableness of

their sentences. The sentences of Reyes-Hernandez’s

and Sanchez-Gonzalez’s are V ACATED , and their cases

are REMANDED for re-sentencing consistent with this

opinion.

10-7-10