United States v. Martinez-Flores

United States Court of Appeals
For the First Circuit

No. 04-2681

UNITED STATES OF AMERICA,

Appellee,

v.

DENNIS JOEL MARTINEZ-FLORES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul Barbadoro, U.S. District Judge]

Before

Lynch, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.

Douglas J. Beaton on brief for appellant.
Mark S. Zuckerman, Assistant United States Attorney, and
Thomas P. Colantuono, United States Attorney, on brief for
appellee.

October 28, 2005
 LYNCH, Circuit Judge. This appeal, from a criminal

sentence imposed on an alien who illegally reentered the United

States, requires that we address a question of first impression:

does the congressional endorsement of downward sentencing

departures in conjunction with "fast-track" case processing violate

the nondelegation doctrine? We answer the question in the

negative; separately, we reject the defendant's request for a

Booker remand on grounds of disparity in sentencing between

defendants in fast-track jurisdictions and others. We affirm the

sentence imposed by the district court.

I.

The facts are not in dispute. Dennis Joel Martinez-

Flores was convicted of the sale and transportation of cocaine in

a California state court in 1994 and was deported to Honduras in

1996. He re-entered the United States illegally and was deported

again in 1997, this time to Mexico.

In March 2004, Martinez-Flores was arrested again, this

time in New London, New Hampshire, and charged with re-entry after

deportation in violation of 8 U.S.C. § 1326(a). After his motion

to suppress evidence was denied as moot, he pled guilty on August

30, 2004. Martinez-Flores faced 41 to 51 months in prison unless

he qualified for a downward departure under the then-mandatory

Sentencing Guidelines.

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 Martinez-Flores made three arguments in support of

downward departure. The first two revolved around the authority of

the Attorney General to authorize in certain jurisdictions "fast-

track" procedures to speed criminal immigration cases through the

system, and the concomitant congressional authorization of (and

instruction to the Sentencing Commission to provide for) downward

departures to defendants in such fast-track programs in exchange

for their waiver of procedural rights.

Fast-track programs have been adopted by individual

United States Attorneys and authorized by the Attorney General in

some federal jurisdictions but not all, and not in New Hampshire.

Seizing on this fact, Martinez-Flores first argued that he faced a

longer sentence than similarly situated defendants elsewhere in the

country. This disparity, he argued, had not been adequately taken

into consideration in formulating the Sentencing Guidelines, and

thus the district court could rely on it to depart downward.

Second, Martinez-Flores argued that Congress violated the

nondelegation doctrine by conferring too much discretion on the

Attorney General to decide when and where to implement fast-track

procedures. Finally, he argued that he should receive an

additional downward departure pursuant to U.S. Sentencing

Guidelines Manual (U.S.S.G.) § 5K2.0 (permitting departure for

mitigating circumstances not taken into account in the Guidelines):

he stated that his home in Honduras had been destroyed in a

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hurricane and that he had been working as a laborer in New

Hampshire to support his wife and children.

The district court rejected Martinez-Flores' fast-track

arguments, but it granted his request for a § 5K2.0 departure. It

sentenced him on November 29, 2004 to a below-Guidelines term of 24

months' imprisonment, to be followed by three years of supervised

release. Martinez-Flores timely appealed, challenging the

rejection of his fast-track sentencing claims and asking for a

Booker remand.

II.

Since both of Martinez-Flores' claims on appeal revolve

around fast-track sentencing, we begin with a brief explanation of

the procedure and its provenance.

Fast-track sentencing originated not with Congress, but

with federal prosecutors in states bordering Mexico. See

Middleton, Fast-Track to Disparity: How Federal Sentencing Policies

Along the Southwest Border are Undermining the Sentencing

Guidelines and Violating Equal Protection, 2004 Utah L. Rev. 827,

831. Faced with a burgeoning load of illegal re-entry and other

immigration cases, federal prosecutors in Texas, New Mexico,

Arizona, and California adopted policies designed to speed case

processing. Id. In the typical fast-track system, defendants who

agreed to plead guilty at an early stage, and to waive their rights

to file motions and to appeal, were rewarded with shorter

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sentences, either via charge-bargaining or promises of a

recommendation for departure at sentencing. Id. at 829-30.

In 2003, Congress endorsed the fast-track concept in a

provision of the Prosecutorial Remedies and Other Tools to End the

Exploitation of Children Today Act ("PROTECT Act"), Pub. L. No.

108-21, 117 Stat. 650 (2003) (codified in scattered Sections of 18,

28, and 42 U.S.C.). The applicable provision, § 401(m)(2)(B) ("the

PROTECT Act provision"), instructed the United States Sentencing

Commission to "promulgate . . . a policy statement authorizing a

downward departure of not more than 4 levels if the Government

files a motion for such departure pursuant to an early disposition

program authorized by the Attorney General and the United States

Attorney." 117 Stat. at 675. Pursuant to this dictate, the

Sentencing Commission added a new Guidelines provision, effective

October 27, 2003, authorizing the four-level departure. See

U.S.S.G. § 5K3.1 (permitting departure and using the same language

as the PROTECT Act provision).

Meanwhile, on September 22, 2003, then-Attorney General

John Ashcroft issued a memorandum (the "Ashcroft Memorandum")

explaining the circumstances under which he would "authorize[]" a

fast-track program. The memorandum stated, inter alia, that fast-

track programs would receive the Attorney General's authorization

where "the district confronts an exceptionally large number of a

specific class of offenses within the district" or where "the

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district confronts some other exceptional local circumstance with

respect to a specific class of cases that justifies expedited

disposition." Memorandum from John Ashcroft, Attorney General, to

United States Attorneys 2 (Sept. 22, 2003) (setting forth

"Department Principles for Implementing an Expedited Disposition or

'Fast-Track' Prosecution Program in a District"), reprinted in 16

Fed. Sent. R. 134 (Dec. 2003).

Where the fast-track programs have been authorized by the

Attorney General and implemented, the defendant must "agree to the

factual basis [of the criminal charge] and waive the rights to file

pretrial motions, to appeal, and to seek collateral relief (except

for ineffective assistance of counsel)." United States v.

Melendez-Torres, 420 F.3d 45, 52 (1st Cir. 2005) (citing the

Ashcroft Memorandum). As of the date of Martinez-Flores'

prosecution and sentencing, such programs had been authorized in

various districts; New Hampshire was not among them.

III.

A. The Nondelegation Argument

Martinez-Flores focuses on appeal on his constitutional

attack on the fast-track system.1 He argues that by virtue of the

1
This court has previously rejected constitutional claims that
the fast-track programs violate equal protection, see Melendez-
Torres, 420 F.3d at 52-53, while other circuits said as much in
dicta prior to the PROTECT Act, see, e.g., United States v.
Banuelos-Rodriguez, 215 F.3d 969, 977 (9th Cir. 2000) (en banc)
(stating, in the context of a fast-track challenge, that "[a] wide
disparity between sentencing schemes of different jurisdictions

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PROTECT Act provision, Congress delegated excessive legislative

power to the Attorney General to decide when districts may install

fast-track systems and when they may not. As support for this

argument, Martinez-Flores points us to the Attorney General's

criteria for authorizing fast-track programs. He argues that the

terms "exceptionally large number" and "exceptional local

circumstance" are so vague and subjective that they exacerbate the

excessive delegation problem created by the PROTECT Act provision.

We disagree. On these facts, we find that no delegation exists at

all, and therefore that the constitutional limits on Congress'

power to delegate could not have been transgressed.

1. Nondelegation Principles

"The nondelegation doctrine is rooted in the principle of

separation of powers that underlies our tripartite system of

Government." Mistretta v. United States, 488 U.S. 361, 371 (1989)

(rejecting delegation challenge to the Guidelines system). Because

the Constitution states that all federal legislative power "shall

be vested in a Congress of the United States," U.S. Const. art. I,

§ 1, the Supreme Court "long ha[s] insisted that 'the integrity and

maintenance of the system of government ordained by the

does not violate equal protection, even where two persons who
commit the same crime are subject to different sentences" (quoting
United States v. Oakes, 11 F.3d 897, 899 (9th Cir. 1993)) (internal
quotation marks omitted)). As best we can tell, no circuit court
has as yet faced a constitutional challenge to the PROTECT Act
provision based on the nondelegation doctrine.

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Constitution' mandate that Congress generally cannot delegate its

legislative power to another Branch." Mistretta, 488 U.S. at 371-

72 (quoting Field v. Clark, 143 U.S. 649, 692 (1892)). The Court,

however, also has recognized that this principle "do[es] not

prevent Congress from obtaining the assistance of its coordinate

Branches," id. at 372, and that how it may go about obtaining that

assistance in a particular case "'must be fixed according to common

sense and the inherent necessities of the government

co-ordination,'" id. (quoting J. W. Hampton, Jr., & Co. v. United

States, 276 U.S. 394, 406 (1928)). The Court developed the

following rule: "So long as Congress 'shall lay down by legislative

act an intelligible principle to which the person or body

authorized to [exercise the delegated authority] is directed to

conform, such legislative action is not a forbidden delegation of

legislative power.'" Id. (quoting J.W. Hampton, 276 U.S. at 409)

(alteration in the original).

Two details of the nondelegation jurisprudence are worthy

of note. First, "the degree of agency discretion that is

acceptable varies according to the scope of the power

congressionally conferred." Whitman v. Am. Trucking Ass'ns, 531

U.S. 457, 475 (2001). In other words, if Congress delegates a

relatively narrow task, it need not cabin the actor's discretion as

to how to accomplish that task, whereas if it delegates a broad

duty -- for example, setting national air quality standards -- it

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must provide "substantial guidance." Id. Second, the

nondelegation principle is extraordinarily difficult to violate.

In its entire history, the Supreme Court "ha[s] found the requisite

'intelligible principle' lacking in only two statutes"; both of

those decisions date to 1935. Id. at 474 (citing Panama Refining

Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935)); see Sunstein, Nondelegation

Canons, 67 U. Chi. L. Rev. 315, 322 (2000) (describing the

nondelegation doctrine as having had "one good year, and 211 bad

ones (and counting)").

2. Analysis

Turning to the facts before us, we begin by noting that

the Attorney General's memorandum, with its "exceptionally large

number" and "exceptional local circumstance" wording, is irrelevant

to the nondelegation question. As the Supreme Court made clear in

Whitman, the proper focus of nondelegation analysis is on the terms

of Congress' delegation to the agency or other governmental body,

not on the terms of the agency's subsequent exercise of the

delegated authority.2 531 U.S. at 472-73.

2
Therefore, an agency cannot "cure an unconstitutionally
standardless delegation of power by declining to exercise some of
that power." Whitman, 531 U.S. at 473. Conversely, a
congressional assignment of power not by its terms violative of the
nondelegation doctrine cannot become so because of the breadth with
which the agency exercises it. If it is the agency, and not
Congress, whose exercise of authority is too broad, the relevant
objection would not be that Congress' delegation was
unconstitutional, but that the agency had exceeded its statutory

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 We turn, then, to the words and context of the PROTECT

Act provision. The provision accomplishes two things. First, it

issues a mandate to another governmental actor: it instructs the

Sentencing Commission to "promulgate . . . a policy statement

authorizing a downward departure of not more than 4 levels."

§ 401(m)(2)(B), 117 Stat. at 675. Second, it sets a condition on

that mandate: it states that the four-level departure will be

authorized under the Guidelines in a given jurisdiction only if the

jurisdiction's fast-track program has been "authorized by the

Attorney General and the United States Attorney." Id.

It is clear that the first of these two items, the

mandate to the Sentencing Commission, does not create a

nondelegation problem. Congress created the Sentencing Commission

and may constitutionally require the Commission to set sentencing

policy. Mistretta, 488 U.S. at 412 ("We conclude that in creating

the Sentencing Commission . . . Congress neither delegated

excessive legislative power nor upset the constitutionally mandated

balance of powers among the coordinate Branches."); see also United

States v. LaGuardia, 902 F.2d 1010, 1013-16 (1st Cir. 1990)

(rejecting a claim that the Sentencing Guidelines' restrictions on

judicial sentencing discretion violate the Due Process Clause).

Moreover, the PROTECT Act's mandate to the Commission is narrow and

highly specific: it tells the Commission what to write and how to

authority.

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write it. It therefore involves no "agency discretion," and the

"scope of the power . . . conferred" is minuscule. See Whitman,

531 U.S. at 475. If authorizing the Commission "to determine the

relative severity" of all federal crimes does not constitute

excessive delegation, see Mistretta, 488 U.S. at 377, neither does

the narrow mandate at issue here.

Any nondelegation challenge therefore must rest on the

condition -- approval by the Attorney General of the fast-track

program involved -- that Congress (and the Commission) placed on

the downward departure. The argument must be that that condition

created an implied delegation of congressional power to the

Attorney General to decide when fast-track programs are permissible

and when they are not.

But the PROTECT Act provision does not purport to

delegate responsibility to, or otherwise regulate, the Executive

Branch's prosecutorial arm. Instead, it simply exercises Congress'

power to regulate certain aspects of federal sentencing; it does so

by issuing (through the agency of the Sentencing Commission) a new

sentencing policy. The fact that the new sentencing policy

contains a condition that depends for its fulfillment on actions of

the Attorney General does not mean Congress has delegated either

Legislative or Judicial Branch power to the Attorney General.

Other aspects of sentencing also require as a condition the action

of a prosecutor. For example, judges are authorized to grant

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downward departures to defendants who provide "substantial

assistance in the investigation or prosecution of another person"

-- but only "[u]pon motion of the government" declaring that the

defendant has done so. USSG § 5K1.1.

Under the terms of the PROTECT Act provision, in fact,

the Attorney General was not obligated to do anything at all; he

could have taken absolutely no action with regard to fast-track

programs, leaving their existence and their configuration to the

continued discretion of individual United States Attorneys. It is

true that if the Attorney General had not taken any action, the

PROTECT Act provision would not have authorized downward departure

on the basis of a defendant's fast-track cooperation. But that

effect would have sprung from Congress' control over sentencing,

not over federal prosecutors, and prosecutors still would have been

free to achieve the same outcomes via the bargaining process. In

such a situation, we cannot say that Congress delegated legislative

or judicial power to the Attorney General. Further, even assuming

arguendo that the nondelegation doctrine did somehow apply, we

could not say that any delegation was insufficiently cabined or

that it would violate the "intelligible principle" rule. Any

authority delegated here "is no broader than the authority

[prosecutors] routinely exercise in enforcing the criminal laws."

United States v. Batchelder, 442 U.S. 114, 126 (1979). Where that

is the case, the nondelegation principle is not violated. Id.

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B. The "Unwarranted Disparities" Argument

Martinez-Flores also argues that the existence of fast-

track sentencing in some jurisdictions but not others creates

unwarranted sentencing disparities. He argues that these

disparities justify downward departure and that the district court

might have so held if sentencing had occurred after the Supreme

Court's decision in United States v. Booker, ___ U.S. ___, 125 S.

Ct. 738, 160 L. Ed. 2d 621 (2005); he therefore requests a Booker

remand.

Martinez-Flores presented a somewhat different version of

this argument at sentencing. At that time, he was faced with a

system of mandatory Sentencing Guidelines and a statutory provision

-- 18 U.S.C. § 3553(b) -- that permitted downward deviation from

the Guidelines only in the face of a "mitigating circumstance" that

was "not adequately taken into consideration by the Sentencing

Commission in formulating the Guidelines." Id. § 3553(b)(1).

Martinez-Flores argued that the sentencing disparities created by

the unequal distribution of fast-track programs constituted such a

mitigating circumstance. The district court rejected this

argument. At least three circuit courts had earlier reached

similar results, holding that fast-track disparities did not under

the Guidelines justify downward departure. See United States v.

Banuelos-Rodriguez, 215 F.3d 969, 973 (9th Cir. 2000) (en banc)

("We fail to see how the decision of [federal prosecutors in

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another district to adopt fast-track procedures] . . . can be a

'mitigating circumstance' with regard to Defendant or his crime.");

United States v. Armenta-Castro, 227 F.3d 1255, 1257 (10th Cir.

2000) (same); United States v. Bonnet-Grullon, 212 F.3d 692, 705-06

(2d Cir. 2000) (rejecting possibility of downward departure to

offset disparities created by the Southern District of California's

charge-bargaining fast-track system).

The question is different post-Booker. The Supreme

Court's holding in that case excised § 3553(b)(1) from the

statutory scheme and rendered the Guidelines non-mandatory.

Booker, 125 S.Ct. at 764-67. As a result, § 3553(a), which

contains a list of factors to be considered by federal judges in

imposing sentences, has taken on renewed importance. Recognizing

this, Martinez-Flores shifts his argument on appeal to focus on

§ 3553(a)(6), which instructs the district judge to consider "the

need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct"

when imposing sentence. Martinez-Flores argues that the district

judge at his sentencing felt constrained by the then-mandatory

Guidelines and so did not have the opportunity to fully consider

whether fast-track sentencing created "unwarranted sentence

disparities" under § 3553(a)(6). He thus requests a Booker remand.

Martinez-Flores did not preserve a Booker issue, so our

review is for plain error. See United States v. Antonakopoulos,

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399 F.3d 68, 76 (1st Cir. 2005). For Martinez-Flores' claim to

survive plain error review, we must find "a reasonable probability

that the district court would impose a different sentence more

favorable to the defendant under the new 'advisory Guidelines'

Booker regime." Id. at 75. "It is not enough for a defendant to

show that he was not given the benefit of a sentence fashioned

under advisory guidelines; rather, he must offer some reasonable

indication that the sentencing court, freed of the shackles forged

by mandatory guidelines, would have fashioned a more favorable

sentence." United States v. Guzman, 419 F.3d 27, 32 (1st Cir.

2005). In other words, the defendant "must point to specific

indicia" that the requisite reasonable probability exists. United

States v. Sanchez-Berrios, No. 03-2333, 2005 U.S. App. LEXIS 20110,

at *29 (1st Cir. Sept. 20, 2005).

Martinez-Flores points to no "specific indicia" that the

district court would have felt differently had it been operating

under advisory Guidelines. In fact, the record suggests just the

opposite. The district court stated during the sentencing hearing

that it was "not free to simply give every other defendant who

comes before me the benefit of the [fast-track] program that might

have some pragmatic justification in particular districts but is

not justified here." (emphasis added). This comment suggests that

the district court would not have considered any fast-track

disparities "unwarranted" even in an advisory Guidelines universe.

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Martinez-Flores therefore cannot meet the Antonakopoulos plain-

error standard.3

The judgment is affirmed.

3
It is arguable that even post-Booker, it would never be
reasonable to depart downward based on disparities between fast-
track and non-fast-track jurisdictions given Congress' clear (if
implied) statement in the PROTECT Act provision that such
disparities are acceptable. See United States v. Perez-Chavez, No.
2:05-CR-00003PGC, 2005 U.S. Dist. LEXIS 9252, at *18-*23 (C.D. Utah
May 16, 2005) (holding, in light of the PROTECT Act provision, that
"Congress has concluded that the advantages stemming from
fast-track programs outweigh their disadvantages, and that any
disparity that results from fast-track programs is not
'unwarranted'"). Because we resolve the question in this case on
Booker plain-error grounds, we need not reach that or any other
issue of reasonableness.

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