United States v. Jose Manuel Anaya-Ag

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3675

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JOSE M ANUEL A NAYA-A GUIRRE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:10-cr-01094—James B. Zagel, Judge.

A RGUED S EPTEMBER 24, 2012—D ECIDED JANUARY 10, 2013

Before B AUER, F LAUM, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. Appellant Jose Manuel Anaya-

Aguirre violated 8 U.S.C. § 1326(a) by illegally reen-

tering the United States after a prior deportation that

had followed a felony conviction in the United States.

He pled guilty and was sentenced to 48 months in

prison. Anaya-Aguirre argued in the district court that

he should receive a below-guideline sentence because

the Northern District of Illinois did not have a “fast-

2 No. 11-3675

track” program. Fast-track programs in some districts

offer certain categories of defendants — including many

in immigration cases — shorter sentences in exchange

for very prompt guilty pleas, the waiver of nearly all trial

and appellate rights, and other conditions. While the

district court imposed a sentence that was below the

guideline range, it is clear that the downward variance

was not based on the lack of a fast-track program. Anaya-

Aguirre has appealed his sentence, arguing that the

district court erred by rejecting his fast-track mitigation

argument. We affirm.1

We have jurisdiction over this appeal under 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291. We review de novo

questions of law, including those concerning alleged

procedural errors in sentencing. United States v. Vallar,

635 F.3d 271, 277-78 (7th Cir. 2011). We review discretion-

ary sentencing decisions for an abuse of discretion

judged by the reasonableness of the sentence. Gall v.

United States, 552 U.S. 38, 51 (2007); United States v.

Booker, 543 U.S. 220, 261 (2005). “A sentence is reasonable

if the district court gives meaningful consideration to

1

At the time of Anaya-Aguirre’s sentencing, none of the

districts in the Seventh Circuit had fast-track programs. In

January 2012, however, the Department of Justice changed its

policy and now requires all districts prosecuting § 1326 viola-

tions to institute fast-track programs. See Memorandum

from Deputy Attorney General James M. Cole to All United

States Attorneys, Department Policy on Early Disposition or “Fast-

Track” Programs (Jan. 31, 2012), available at www.justice.gov/

dag/fast-track-program.pdf.

No. 11-3675 3

the factors enumerated in 18 U.S.C. § 3553(a).” United

States v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008).

Anaya-Aguirre offers at least five separate arguments

for reversing the denial of his fast-track mitigation argu-

ment: two procedural arguments and a cluster of related

constitutional theories. On the procedural side, he

argues that the government should be estopped from

opposing his request for a downward variance because

the prosecutor affirmatively misled him about the

ability to make a fast-track disparity argument at sen-

tencing. He also argues that the district court incor-

rectly believed it did not have discretion to grant

him a downward variance based on the district’s lack

of a fast-track program.

The several constitutional claims are all based on a

misunderstanding of our decision in United States v.

Ramirez, 675 F.3d 634 (7th Cir. 2011), which set forth

the circumstances in which a district court would need

to explain why it was rejecting a fast-track disparity

argument. Anaya-Aguirre incorrectly contends that

Ramirez created a set of “prerequisites” a defendant

must fulfill before he may argue for or receive a

downward variance based on a fast-track disparity.

He challenges some of these supposed prerequisites on

constitutional grounds, including due process, equal

protection, and self-incrimination, but the arguments are

based on that misunderstanding of Ramirez, which did

not impose any restraints on a defendant’s ability to

present mitigating arguments at sentencing nor limit

a district court’s discretion to accept fast-track disparity

arguments.

4 No. 11-3675

In explaining our rejection of these arguments, we

first briefly review this circuit’s approach to fast-track

disparity arguments, with particular attention to United

States v. Reyes-Hernandez, 624 F.3d 405 (7th Cir. 2010),

which granted sentencing courts the discretion to

consider fast-track disparity as part of their analysis of

sentencing factors under 18 U.S.C. § 3553(a). We then

discuss Ramirez, which guides sentencing courts’ review

of these arguments.

I. Fast-Track Sentences

Fast-track programs are a bargain for both defendants

and overworked prosecutors, especially in districts with

high volumes of immigration violations. The defendant

receives a sentence below the guideline range while the

prosecution secures a swift and final conviction and

punishment. The defendant facilitates the process by

pleading guilty promptly and waiving the right to trial

and appeal. In exchange, the prosecution agrees to recom-

mend a below-guideline sentence. See U.S.S.G. § 5K3.1.

For a thorough treatment of the history of fast-track

programs, see, e.g., Reyes-Hernandez, 624 F.3d at 409-12;

Jane L. McClellan & Jon M. Sands, Federal Sentencing

Policy Guidelines & the Policy Paradox of Early Disposition

Programs: A Primer on “Fast-Track” Sentences, 38 Ariz. St. L.J.

517, 517-24 (2006).

As fast-track programs evolved based on caseload

pressures, especially in southern border districts, the

details differed from one district to another. After

No. 11-3675 5

Congress embraced fast-track sentencing in the PRO-

TECT Act of 2003, the Attorney General imposed five

requirements that all defendants seeking a fast-track

sentence must satisfy: (1) plead guilty “within a

reasonably prompt period after the filing of federal

charges, to be determined based upon practice in the

district;” (2) agree to the government’s factual account

of the offense; (3) forfeit the right to make all motions

authorized by Federal Rule of Criminal Procedure

12(b)(3); (4) waive the right to appeal; and (5) waive

the opportunity to challenge the conviction under

28 U.S.C. § 2255, except for ineffective assistance

of counsel claims. See Memorandum from the At-

torney General to All United States Attorneys, Depart-

ment Principles for Implementing an Expedited Disposition

or “Fast-Track” Prosecution Program in a District

(Sept. 22, 2003), available at http://www.justice.gov/ag/

readingroom/ag-092203.pdf (hereinafter 2003 DOJ Memo-

randum).

II. Fast-Track Sentencing Disparities and the Seventh Circuit

Until very recently, there have been no fast-track pro-

grams in any districts in the Seventh Circuit, so a

number of defendants who might have been eligible

for fast-track sentencing if they had been prosecuted

in other districts argued that the lack of a formal fast-

track program was a mitigating factor for their sen-

tences. In Reyes-Hernandez, we overruled an earlier

decision and held that district courts in the Seventh

Circuit can properly use their post-Booker discretion to

6 No. 11-3675

consider such arguments. 624 F.3d 405, 417-19 (7th Cir.

2010). We said at that time that a defendant making

the fast-track disparity argument “must first have been

eligible for fast-track status had it been available and

show that he would have in fact pursued the option. . . .”

Id. at 420. There quickly followed a number of appeals

in which defendants had made fast-track mitigation

arguments and district courts had rejected them, some-

times with little or no discussion.2

In Ramirez, decided after Anaya-Aguirre’s sentencing,

we answered a narrow question arising in the wake of

Reyes-Hernandez: “As this court made clear in United

States v. Reyes-Hernandez, 624 F.3d 405 (7th Cir. 2010),

district courts may consider a fast-track argument, but

they are not required to consider one. This opinion ad-

dresses a different question — when is a district court

obliged to comment on a fast-track argument.” 675 F.3d

at 641 n.2. We held: “unless the defendant has shown

that he is similarly situated to persons who actually

would receive a benefit in a fast-track district,” the

district court is not required to provide reasons for re-

jecting the fast-track disparity argument. Id. at 636.

Thus, Ramirez explained when a district court must

address the argument explicitly. It did not limit

a district court’s discretion or ability to consider any

2

See, e.g., United States v. Abasta-Ruiz, 409 Fed. Appx. 949 (7th

Cir. 2011); United States v. Vazquez-Pita, 411 Fed. Appx. 887 (7th

Cir. 2011); United States v. Morant-Jones, 411 Fed. Appx. 885 (7th

Cir. 2011).

No. 11-3675 7

mitigation arguments, including those based on fast-

track disparities.

Under Ramirez, a district court must address a fast-

track disparity argument explicitly only when the defen-

dant has made a sufficient evidentiary showing that

he would be eligible for fast-track treatment in

a district with such a program. This holding was not

revolutionary but common-sense: “This requirement

of a foundation for a claim of fast-track disparity

simply recognizes that every defendant who asserts that

his or her personal circumstances warrant leniency

is compelled to supply a factual predicate for the con-

tention.” 675 F.3d at 641. To establish that factual

predicate such that the sentencing court must take the

time to comment on the argument, the defendant must

show that he acted exactly like the defendant in a fast-

track district. Ramirez instructed sentencing courts that,

absent this evidentiary showing of the defendant’s

actions, the court would not err by concluding that a fast-

track argument is “illusory” and therefore “may be

passed over in silence.” Id. at 636.

On this point, Ramirez only repeated what should

have been evident. To succeed on a fast-track mitigation

argument or to appeal successfully the silent rejection

of such an argument, defendants must show that they

are “similarly situated” to defendants in fast-track

districts. “That means the defendant must promptly

plead guilty, agree to the factual basis proffered by

the government, and execute an enforceable waiver of

specific rights before or during the plea colloquy. It

8 No. 11-3675

also means that the defendant must establish that he

would be eligible to receive a fast-track sentence in at

least one district offering the program and submit

the likely imprisonment range in that district.” Id.

Anaya-Aguirre argues, though, that Ramirez created a

new set of requirements for arguing the absence of a fast-

track program as a mitigating factor. This reading of

Ramirez is wrong. Ramirez did not create a set of affirma-

tive acts that the defendant must complete before the

judge would be permitted to consider a fast-track

disparity argument. We now turn to the specific facts

of this case and the district court’s rejection of Anaya-

Aguirre’s fast-track mitigation argument.

III. The Proceedings Here

Anaya-Aguirre, a Mexican citizen, illegally reentered

the United States and was picked up by immigration

officials on December 21, 2010. He was arrested and

charged with violating § 1326(a) shortly thereafter. A

grand jury indicted him on January 13, 2011. On Janu-

ary 27, 2011, Anaya-Aguirre’s attorney sent an email to

the prosecutor saying in pertinent part that Reyes-

Hernandez “states that a fast track sentence is applicable

where a defendant waives pre-trial motions, an appeal

and a 2255 other than ineffective assistance and a defen-

dant must be eligible for fast track if it was available.

Can you draw a plea agreement based on fast track sen-

tencing?” The government responded on February 1,

2011 explaining, “Regarding the Fast-Track. Our district

No. 11-3675 9

does not have it and our office will not draft plea agree-

ments as if we did. However, as the opinion in Reyes-

Hernandez states, the fact that our district does not have

a fast-track program can be argued as a 3553(a) factor

at sentencing.” Prior to this email exchange, the gov-

ernment had offered Anaya-Aguirre a plea agreement

which he rejected, in part, because “it did not offer him

any benefits.” The government’s email therefore also

informed Anaya-Aguirre’s attorney that “the plea agree-

ment I sent to you won’t be revised.”

On May 10, 2011, four months after Anaya-Aguirre’s

indictment, he changed his plea to guilty but without a

plea agreement with the government. The guilty plea

did not include a waiver of any of his appellate rights.

At his sentencing on November 9, 2011, Anaya-Aguirre

submitted a “waiver of rights for fast track sentencing.”

He offered this waiver ten months after his indictment

and six months after his guilty plea.3

In his sentencing memorandum, Anaya-Aguirre

argued for a below-guideline sentence based on the lack

3

In his brief, Anaya-Aguirre claims that he attempted to waive

his relevant trial and appellate rights in his attorney’s email

requesting a fast-track sentence. Def. Br. at 18-19. This claim

lacks merit. We will not read a waiver of such fundamental

rights implicitly based on an ex post assertion made on ap-

peal. More to the point, such a waiver would prove wholly

unenforceable, which would not satisfy the requirements in

the fast-track districts. See 2003 DOJ Memorandum (requiring

that “defendant enter into a written plea agreement that

includes” all relevant waivers).

10 No. 11-3675

of a fast-track program in the Northern District of

Illinois and his purported eligibility for such a program.

The government opposed the idea, arguing that Anaya-

Aguirre had failed to act as if he were in a fast-track

district. The district court rejected Anaya-Aguirre’s fast-

track disparity argument but imposed a below-guideline

sentence on other grounds.

IV. Legal Analysis

We turn now to Anaya-Aguirre’s legal arguments, first

the estoppel and procedural arguments, and then the

constitutional arguments.

A. Estoppel

Anaya-Aguirre argues that that the government should

be estopped from opposing a fast-track variance because

of its response to his attorney’s original request for a fast-

track plea agreement. He contends he was misled by the

prosecutor’s response, which said that the Northern

District of Illinois did not have a fast-track program

but that Anaya-Aguirre could raise the issue at sen-

tencing pursuant to Reyes-Hernandez. The government

argued that, as Reyes-Hernandez itself had explained, a

defendant making a fast-track disparity argument “must

first have been eligible for fast-track status had it been

available and show that he would have in fact pursued

the option . . . .” 624 F.3d at 420. Anaya-Aguirre had

failed to make those showings.

No. 11-3675 11

There are three traditional elements of estoppel:

“(1) misrepresentation by the party against whom

estoppel is asserted; (2) reasonable reliance on that mis-

representation by the party asserting estoppel; and

(3) detriment to the party asserting estoppel.” United

States v. Gatewood, 965 F.2d 413, 417 (7th Cir. 1992).

When a party seeks to estop the government, the

party must also show that the government committed

affirmative misconduct, which requires “more than

mere negligence.” Gibson v. West, 201 F.3d 990, 994 (7th

Cir. 2000) (citation omitted). If any one of these elements

is not satisfied, the estoppel claim fails. Anaya-Aguirre’s

estoppel argument fails because he cannot show affirma-

tive misconduct or misrepresentation by the govern-

ment, nor can he show reasonable reliance.

1. No Affirmative Misconduct

Anaya-Aguirre has not shown affirmative misconduct

by the prosecutor. The prosecutor’s response to Anaya-

Aguirre’s first request for a fast-track plea agreement

pointed out that the Northern District of Illinois had

no such program but that Seventh Circuit case law

would allow the defendant to make the argument at sen-

tencing. There was nothing at all deceptive about

this response. The prosecutor went so far as to direct

defense counsel to the relevant case, though both

lawyers were already familiar with it. The prosecutor

was not required to provide defense counsel a detailed

and precise account of the applicable law; he could

look that up for himself. The prosecution did not

12 No. 11-3675

mislead the defendant or his counsel and did not secure

any unfair advantage. Furthermore, the prosecutor’s

argument at sentencing, to the effect that Anaya-Aguirre

had failed to show he could have qualified for fast-

track status under any program in any other district,

was both accurate and fair, and it was consistent with

the teaching of Reyes-Hernandez.

2. No Misrepresentation or Reasonable Reliance

Anaya-Aguirre argues that the prosecutor’s email led

him to believe that the government would not oppose a

fast-track sentence based on his failure to plead guilty

promptly and to waive his trial and appellate rights

because the government would not draft a fast-track

plea agreement. We see neither misrepresentation

nor reasonable reliance on a false statement or promise.

The email was an accurate and concise explanation of

the law at the time: The Northern District of Illinois did

not have a fast-track program, and after Reyes-Hernandez,

defendants were free to argue for a downward variance

on that basis at sentencing. Both counsel were familiar

with Reyes-Hernandez and each could read it for himself.

The prosecutor did not discourage defense counsel

from preparing to make the showing that Reyes-

Hernandez required: that the defendant would have

been eligible for fast-track status if it had been available

and that he would have pursued that course. 624 F.3d

at 420.

No. 11-3675 13

B. Procedural Error

Anaya-Aguirre argues next that the district court

made an error of law because it believed it did not have

the discretion to reduce his sentence based on the fast-

track disparity argument. In response to the fast-track

argument, the district court noted that the legal land-

scape concerning the consideration of fast-track dis-

parities at sentencing in non-fast-track districts was

unclear before Ramirez. The district court compared the

situation to two Supreme Court decisions decided the

day of the hearing in which habeas relief had been denied

despite state courts’ legal errors because the law was

unclear at the time.

In reference to these cases the district court explained

why the estoppel argument failed:

The Supreme Court said you still don’t get habeas

corpus because the statute says if the law is not

clearly defined at the time of the decision you make,

then we honor your decision. And, indeed, in one

case, the Supreme Court said, basically, the Ohio

Supreme Court was wrong but they couldn’t have

known that they were wrong at the time they made

it, and the habeas corpus was denied. And this is,

roughly, the position we’re in here.

Anaya-Aguirre claims the district judge referred to

these two cases not by way of analogy in relation to the

estoppel issue but instead because the judge believed

“that the two Supreme Court opinions cited above pre-

cluded him from considering a fast-track sentence.”

Def. Br. at 20.

14 No. 11-3675

We are not persuaded that the district judge misunder-

stood his authority. The veteran district judge showed

that he knew he had the discretion to adjust the sentence

downward based on the lack of a fast-track program,

explaining that it would be “an argument for a variance

in the guideline.” The judge correctly acknowledged

that the argument was not a legal argument so much as

an argument for an exercise of his discretion to sen-

tence below the guideline range, and the judge actually

exercised that discretion to sentence below the range

on other grounds. The district judge did not legally err

in his understanding of fast-track disparity mitigation

arguments at sentencing.

C. Substantive “Requirements” in Ramirez

Anaya-Aguirre claims that several of the supposed

requirements Ramirez places on defendants who want

to raise fast-track disparity arguments at sentencing are

unconstitutional. He argues that the “requirement” that

a defendant inform the sentencing court of districts in

which he would not be eligible for a fast-track sentence

violates his Fifth Amendment privilege against self-

incrimination. He also argues that the supposed require-

ment that the defendant enter into a plea agreement

with the government to argue a fast-track disparity

violates the procedural and equal protection aspects of

the Fifth Amendment Due Process Clause. Finally, he

argues that “this court lacks the authority to impose

prerequisites for fast track.” Although we are skeptical

about these arguments for various reasons, we address

No. 11-3675 15

and reject these theories together because they are all

based on the same mistaken view that Ramirez placed

obligations on the defendant. It did not.

Ramirez spelled out the circumstances under which

it would and would not be an error for a district judge

to reject a fast-track disparity mitigation argument

without giving reasons on the record. As we said in

Ramirez, itself, “[n]othing in this opinion precludes a

district court judge from considering a mitigation argu-

ment.” 675 F.3d at 641 n.2. Anaya-Aguirre’s rights could

not have been infringed in any of the ways he claims.

Ramirez simply clarified what constitutes a fast-track

disparity argument with enough substance to require

the district court to respond to it.

Anaya-Aguirre argues that if Ramirez requires defen-

dants to tell the sentencing court where the defendant

would not be eligible for a fast-track sentence, that re-

quirement violates the defendant’s Fifth Amendment

privilege against self-incrimination. The relationship of

the privilege against self-incrimination to a defendant’s

voluntary decision to make a mitigating argument

at sentencing for which he clearly has the burden of

proof is tenuous at best. It is not unusual or unconstitu-

tional to require or at least to expect a defendant who

seeks leniency in sentencing to accept responsibility and

to be candid with the court about his crime. But even

if there were a theoretical foundation for this argu-

ment, again, Ramirez does not require the defendant to

do anything, nor does it create prerequisites or require-

ments that a defendant must meet before being able

to present this argument in mitigation.

16 No. 11-3675

Even the narrow issue Ramirez addressed does not

require the defendant to tell the sentencing court in

which districts he would not be eligible for a fast-track

sentence. Ramirez states that a defendant would be

“well advised to provide information on eligibility and

the likely imprisonment range in any other district in

which he would qualify for a fast-track sentence and

also provide a candid assessment of the number of pro-

grams for which he would not qualify.” 675 F.3d at 636.

This is a recommendation, not a requirement, and this

claim therefore fails without needing further analysis.

The same logic disposes of Anaya-Aguirre’s claim that

Ramirez is unconstitutional because it requires a plea

agreement with the government; it requires no such thing.

The argument that this court lacks the authority to

impose prerequisites for fast-track sentences fails for

the same reasons. We have never imposed requirements

that a defendant must fulfill before making a fast-track

disparity argument at sentencing. Defendants may

make any arguments they wish, and district judges

retain broad discretion in considering arguments in

aggravation and mitigation. In Ramirez we established

only a framework telling sentencing judges when they

need to address specifically this particular mitiga-

tion argument. We thus reject all of these arguments

by Anaya-Aguirre.

D. Due Process and “Retroactive” Application of Ramirez

Finally, Anaya-Aguirre argues that his sentence was

unconstitutional on the theory that the district court

No. 11-3675 17

applied the expectations of Ramirez retroactively. The

short answer to that argument is that we applied the

ruling in Ramirez to the appellants in the Ramirez

appeals themselves. Moreover, Anaya-Aguirre failed to

satisfy even the known expectations already set forth in

the Reyes-Hernandez opinion: that he show he would

have been eligible for fast-track status and that he

would have opted for that approach. In fact, he did not.

He did not plead guilty promptly, but waited four

months after indictment to do so. He did not offer a

waiver of appellate rights at that time, waiting another

six months until he was sentenced to offer such a

waiver. Even then he did so in only a conditional way.

He also did not show that he had met the Attorney Gen-

eral’s original minimum criteria for eligibility, which

includes accepting the government’s version of the

offense. See 2003 DOJ Memorandum (listing five

universal requirements defendant must satisfy to be

eligible for a fast-track sentence). Anaya-Aguirre’s due

process theory thus fails without even exploring some

of the more fundamental problems with the theory.

The judgment of the district court is A FFIRMED.

1-10-13