NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 23, 2011*
Decided April 13, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10‐3590
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Northern District of Illinois,
Plaintiff‐Appellee, Eastern Division
v. No. 09 CR 790
JOSE O. MEDINA‐SUAREZ, Ronald A. Guzmán
Defendant‐Appellant. Judge.
O R D E R
Jose Medina‐Suarez, a citizen of Mexico, was removed from the United States in 2004
but returned a few months later without permission. His arrest for a traffic offense led to
federal prosecution under 8 U.S.C. § 1326(a). Medina‐Suarez pleaded guilty, and at
sentencing he argued that he should receive a prison term below the guidelines range of 46
to 57 months because the Northern District of Illinois does not have a “fast track” program.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(c).
No. 10‐3590 Page 2
Prosecutors in a number of judicial districts offer shorter sentences to defendants charged
under §1326(a) if they plead guilty promptly and also satisfy other qualifying criteria.
Medina‐Suarez argued that the small number of fast‐track programs creates an
unwarranted sentencing disparity between districts. The district court commented that the
limited availability of fast‐track programs is “a little bit offensive” but agreed with the
prosecutor that our precedent precluded consideration of the claimed disparity. The court
did not say how it would have responded to Medina‐Suarez’s argument if given the
discretion to do so. The court did agree with Medina‐Suarez that his criminal history
category was overstated, and on that basis sentenced him below the guidelines range to 41
months.
On appeal Medina‐Suarez argues that the district court erred by not considering his
fast‐track argument. At the time of sentencing, our precedent did not allow a district court
to award a below‐guidelines sentence because of a disparity created by fast‐track programs.
See United States v. Olmeda‐Garcia, 613 F.3d 721, 725 (7th Cir. 2010); United States v. Galicia‐
Cardenas, 443 F.3d 553, 555 (7th Cir. 2006). But while Medina‐Suarez’s appeal was pending,
we overturned that precedent and held that a sentencing court should be able to consider
the lack of a fast‐track program when crafting an individual sentence. United States v. Reyes‐
Hernandez, 624 F.3d 405, 422 (7th Cir. 2010).
In view of Reyes‐Hernandez, the district court committed a procedural error by
categorically excluding Medina‐Suarez’s fast‐track argument as a sentencing consideration.
The government concedes that the error might have affected the sentence imposed, and thus
the error is not harmless. See United States v. Anderson, 604 F.3d 997, 1003 (7th Cir. 2010).
Medina‐Suarez’s sentence is VACATED and his case is REMANDED for re‐
sentencing.