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.
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
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