In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3932
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S ERGIO S ANDOVAL R AMIREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 09 CR 50023-1—Frederick J. Kapala, Judge.
No. 10-2190
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
F RANCISCO O CAMPO-P INEDA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 632-1—Virginia M. Kendall, Judge.
2 Nos. 09-3932, 10-2190 & 10-2689
No. 10-2689
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L UIS A. M ANDUJANO-G ONZALEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 586-1—Amy J. St. Eve, Judge.
A RGUED A PRIL 27, 2011—D ECIDED JULY 20, 2011
Before C UDAHY, E VANS, and T INDER, Circuit Judges.
E VANS, Circuit Judge. We have consolidated these
appeals to answer a recurring question: What evidentiary
showing must a defendant charged with being found in
the United States after previously having been deported,
8 U.S.C. § 1326(a), make before a district court is obliged
to consider his request for a lower sentence to account
for the absence of a fast-track program in that judicial
district? The question has been percolating since we
decided United States v. Reyes-Hernandez, 624 F.3d 405,
417, 420 (7th Cir. 2010), which permits sentencing courts
to compensate for fast-track disparities but em-
phasizes that no district judge is required to evaluate
this mitigating argument until the defendant demon-
Nos. 09-3932, 10-2190 & 10-2689 3
strates that he would have been eligible to participate in
a fast-track program and, in fact, would have “pursued
the option” had it been available. The contours of this
threshold qualification have not been defined in a pub-
lished opinion, but four nonprecedential orders offer
helpful guidance. See United States v. Vazquez-Pita, 411
F. App’x 887 (7th Cir. 2011); United States v. Morant-Jones,
411 F. App’x 885 (7th Cir. 2011); United States v.
Abasta-Ruiz, 409 F. App’x 949 (7th Cir. 2011); United States
v. Torres-Vasquez, 406 F. App’x 40 (7th Cir. 2010). And in
one of these appeals now before us, we directed the
parties to submit supplemental statements addressing
the question.
We hold that a district court need not address a fast-
track argument unless the defendant has shown that he
is similarly situated to persons who actually would
receive a benefit in a fast-track district. That means that
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 also means that the defendant
must establish that he would receive a fast-track sentence
in at least one district offering the program and submit
a thorough account of the likely imprisonment range in
the districts where he is eligible, as well a candid assess-
ment of the number of programs for which he would not
qualify. Until the defendant meets these preconditions,
his “disparity” argument is illusory and may be passed
over in silence.
4 Nos. 09-3932, 10-2190 & 10-2689
I.
The three defendants in our consolidated case are
Mexican nationals who were living in the United States
illegally. Luis Mandujano-Gonzalez first entered this
country without authorization in 1998. Two years later,
he was convicted in Indiana of battering his girlfriend
and her young son. The government removed him to
Mexico after his release from prison in 2006, but
Mandujano returned to the United States unlawfully. In
2009, police in Waukegan, Illinois, arrested him for
driving under the influence of alcohol. He was charged
in federal court with violating § 1326(a), and nine
months passed before he pleaded guilty. He did not
waive, however, his rights to file pretrial motions, to
appeal, or to seek postconviction relief under 28 U.S.C.
§ 2255. A probation officer calculated a total offense
level of 21 and a criminal-history category of III, yielding
an imprisonment range of 46 to 57 months. This calcula-
tion included, among other things, a 16-level increase
under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Mandujano
was removed from the United States after a conviction
for a felony crime of violence—beating his girlfriend’s 13-
month-old son.
Mandujano submitted a sentencing memorandum in
which he asserted that the absence of a “fast track” pro-
gram in the Northern District of Illinois created an unwar-
ranted disparity between his guidelines imprison-
ment range and the sentences meted out in fast-track
districts. But he dedicated only one paragraph to this
contention and didn’t even mention the criteria that
Nos. 09-3932, 10-2190 & 10-2689 5
defendants in fast-track districts must meet to obtain
relief, much less discuss whether he would have been
eligible to participate in any of those fast-track programs.
At the sentencing hearing, the district judge asked
whether Mandujano would have been eligible for fast-
track relief in a district that offered it. “Probably not,”
Mandujano’s lawyer conceded, since his client “didn’t
do all the things he might have had to do” to qualify.
“Then how is there a disparity,” the judge pressed,
if Mandujano would not have received a reduction in a
fast-track district? The lawyer had no answer. With that
the court rejected the disparity argument and sentenced
Mandujano within the guidelines range to 48 months.
The court reasoned that Mandujano had not demon-
strated his eligibility for fast-track sentencing and,
indeed, that he probably wasn’t eligible to begin with.
Our second defendant, Sergio Ramirez, first entered the
United States in 1990 and was granted permanent resi-
dency. But eight years later, he was convicted in Illinois
of aggravated kidnapping, so immigration officials
revoked his status and removed him to Mexico. He re-
turned to the United States unlawfully and was removed
a second time in 2005. Four years later, immigration
officials received a tip that Ramirez was back in the
United States and had applied for an Illinois driver’s
license under an alias. He was charged under § 1326(a) and
pleaded guilty about three months later. But he did not
waive his rights to file pretrial motions, to appeal, or to
seek postconviction relief under § 2255. A probation
officer concluded that Ramirez’s conviction for ag-
gravated kidnapping constituted a crime of violence
6 Nos. 09-3932, 10-2190 & 10-2689
for purposes of § 2L1.2(b)(1)(A)(ii) and accordingly in-
creased his offense level by 16. Ramirez’s total offense
level of 21, coupled with a criminal-history category of
III, resulted in a guideline imprisonment range of 46 to
57 months.
Like Mandujano, Ramirez submitted a sentencing
memorandum urging the district court to reduce his
sentence based on the purported disparity arising from
the absence of a fast-track program in the Northern
District of Illinois. But Ramirez too failed to assert that
he would qualify for a reduction in a fast-track district.
And at sentencing his lawyer said nothing at all
about fast track. The government questioned, however,
whether Ramirez even would be eligible for fast-track
sentencing and insisted that, before the district court
could address any supposed sentencing disparity,
Ramirez first had to “show that he might qualify” for
the program in a fast-track district. The court, citing
precedent that we would later overturn in Reyes-
Hernandez, concluded that it was forbidden from ac-
cepting Ramirez’s fast-track argument. The court added,
though, that if given discretion to accept Ramirez’s argu-
ment, it still would decline to impose a lower sentence
because Ramirez hadn’t “demonstrated that he would be
eligible for a fast-track disposition.” Ramirez was sen-
tenced within the guidelines range to 50 months.
Our final defendant, Francisco Ocampo-Pineda, was
removed from the United States in 2002 after he was
convicted in Illinois of aggravated criminal sexual abuse.
720 ILCS 5/12-16(d). He returned without authorization
Nos. 09-3932, 10-2190 & 10-2689 7
and in 2004 was removed again. Then in 2009, police
in Chicago discovered Ocampo’s presence when they
stopped him for traffic violations. He was charged
with violating § 1326(a) and pleaded guilty 10 weeks
later. A probation officer increased Ocampo’s offense
level by 16 after concluding that his conviction under
§ 5/12-16(d) constituted a crime of violence for purposes
of § 2L1.2(b)(1)(A)(ii). Ocampo’s total offense level of 21
and criminal-history category of II yielded a guideline
imprisonment range of 41 to 51 months.
At sentencing, Ocampo principally argued that his
violation of § 5/12-16(d) was not a crime of violence
because, he insisted, he committed the offense merely by
touching a teenager’s breasts without any use or threat
of physical force. The district court disagreed. For pur-
poses of § 2L1.2(b)(1)(A)(ii), the court explained, a crime
of violence includes any offense comprising “sexual
abuse of a minor.” See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
Looking to the letter of the Illinois statute, which forbids
“sexual conduct” with anyone from age 13 to age 16 by
a person who is at least 5 years older, 720 ILCS 5/12-
16(d), and defines “sexual conduct” to include touching
the victim’s genitals or breasts “for the purpose of sexual
gratification or arousal,” id. § 5/12-12(e), the court con-
cluded that, as a matter of common sense, Ocampo’s
crime constituted sexual abuse of a minor.
In the alternative Ocampo argued that § 2L1.2(b)(1)(A)(ii)
ought not be applied in any case because, in his view, the
“severe” 16-level increase serves no penological purpose
and is not supported by empirical evidence. Again the
8 Nos. 09-3932, 10-2190 & 10-2689
district court was not convinced; brushing aside Ocampo’s
generalized attack on § 2L1.2(b)(1)(A)(ii), the court rea-
soned that, in this case, a sentence within the guidelines
range would appropriately reflect the seriousness of
Ocampo’s sexual-abuse crime and sufficiently deter
future § 1326(a) violations by others removed from the
country after committing aggravated felonies. Ocampo’s
dalliance with a teenager was “an extremely egregious
offense,” the court elaborated, and his returning to the
country after “harming the community through [his]
actions and [his] violence in the past” put the public at
risk and could not “be looked upon kindly.”
Finally, Ocampo implored the district court to sentence
him below his guideline range because of the absence of
a fast-track program in the Northern District of Illinois.
Lowering his prison term by the equivalent of 4 offense
levels, Ocampo proposed, would “eliminate any dis-
crepancy” between his district of conviction and the fast-
track districts. This discrepancy arose, he asserted,
because he “is similarly situated to defendants who
receive fast track dispositions” and “almost certainly
would have received a reduced sentence” if he had been
picked up in a fast-track district. Ocampo pointed out
that he had pleaded guilty at his first opportunity and
had not filed any pretrial motions, and he attached to a
sentencing memorandum a conditional waiver of his
rights to file any future motions, appeal his sentence, or
mount a collateral attack on his sentence. This docu-
ment, which is a form waiver that the Federal Defender
makes available on its website, conditions the relinquish-
ment of rights on the defendant’s receiving “a sentence
Nos. 09-3932, 10-2190 & 10-2689 9
commensurate with the sentences received by
defendants in ‘fast-track’ jurisdictions.” Therefore,
Ocampo insisted, he “should receive the same 4 level
decrease in his sentence that would be afforded an
illegal reentry defendant under the fast track program.”
The district court did not comment on Ocampo’s fast-
track argument but did sentence him to 40 months,
1 month less than the low end of his 41-to-51-months
guideline imprisonment range.
II.
To resolve these appeals, we must hammer out the
details of the steps a defendant must take in order to
show that a sentence within his guidelines range would
create disparity with sentences imposed on similarly
situated defendants in fast-track districts. Before we can
address the defendants’ fast-track arguments, though, we
need to answer Ocampo’s concerns about the calculation
of his guidelines range.1 He insists that touching a teen-
ager’s breasts does not require the use or threat of physical
1
Ramirez too makes an ancillary argument. He points out that
the district court impermissibly ordered him to participate in
the Inmate Financial Responsibility Program. The govern-
ment concedes that this directive was plain error because
sentencing courts do not have the authority to mandate par-
ticipation in the program. United States v. Munoz, 610 F.3d 989,
997 (7th Cir. 2010). We agree and modify the judgment to
clarify that Ramirez’s participation is voluntary. See United
States v. Boyd, 608 F.3d 331, 335 (7th Cir.), cert. denied, 131
S. Ct. 647 (2010).
10 Nos. 09-3932, 10-2190 & 10-2689
force; thus, he contends, his prior conviction is not a
crime of violence subject to a 16-level increase under
§ 2L1.2(b)(1)(A)(ii). In support he cites the residual clause
of Application Note 1(B)(iii), which defines the term
“crime of violence” to include, in addition to 12 enumer-
ated offenses, “any other offense under federal, state, or
local law that has as an element the use, attempted use,
or threatened use of physical force against the person
of another.” His point, presumably, is that § 5/12-16(d)
does not make the use or threatened use of force a statu-
tory element, but this focus on what is necessary for a
crime to fall within the residual clause is misguided
because Application Note 1(B)(iii) explicitly enumerates
“sexual abuse of a minor” as a crime of violence. And
an enumerated offense always is a crime of violence for
purposes of § 2L1.2(b)(1)(A)(ii), whether or not the use
or threat of physical force is an element of the offense.
United States v. Angiano, 602 F.3d 828, 829 (7th Cir.),
cert. denied, 130 S. Ct. 3434 (2010); United States v.
Vasquez-Abarca, 334 F.3d 587, 588-89 (7th Cir. 2003).
So the question is whether aggravated criminal sexual
abuse, as defined by subsection (d) of § 5/12-16, con-
stitutes “sexual abuse of a minor.” The offense pro-
scribes any “act of sexual penetration or sexual conduct”
with a victim who is at least 13 years old, is no more than
16 years old, and is at least 5 years younger than the
defendant. “Both ‘sexual conduct’ and ‘sexual penetra-
tion’ describe intentional acts of a sexual nature.” People
v. Kolton, 848 N.E.2d 950, 959 (Ill. 2006). In the case of
“sexual penetration,” the act encompasses “any contact,
however slight, between the sex organ or anus of one
Nos. 09-3932, 10-2190 & 10-2689 11
person by an object, the sex organ, mouth or anus of
another person, or any intrusion, however slight, of any
part of the body of one person or of any animal or object
into the sex organ or anus of another person.” 720 ILCS
5/12-12(f). As for “sexual conduct,” the act includes “any
intentional or knowing touching or fondling by the
victim or the accused, either directly or through clothing,
of the sex organs, anus or breast of the victim or the
accused, or any part of the body of a child under 13 years
of age, or any transfer or transmission of semen by
the accused upon any part of the clothed or unclothed
body of the victim, for the purpose of sexual gratification or
arousal of the victim or the accused.” Id. § 5/12-12(e)
(emphasis added). When committed against a teenager
by a person who is at least 5 years older, both acts of
“sexual penetration” and acts of “sexual conduct” fall
squarely within the “ordinary, contemporary, and com-
mon meaning” of the phrase “sexual abuse of a minor.”
See United States v. Martinez-Carillo, 250 F.3d 1101, 1104-05
(7th Cir. 2001). All violations of § 5/12-16(d), then, are
crimes of violence for purposes of § 2L1.2(b)(1)(A)(ii), and
so the district court was correct to apply the 16-level
increase to Ocampo.
Ocampo also takes issue with the supposed dearth of
empirical data to justify the “harsh” 16-level increase if
an alien is removed after committing a crime of vio-
lence. Citing journal articles and critical opinions by
district courts, he insists that the “arbitrariness” of
§ 2L1.2(b)(1)(A)(ii) renders his sentence unreasonable.
But a district court need not even consider the argument
“that a guideline is unworthy of application in any case
12 Nos. 09-3932, 10-2190 & 10-2689
because it was promulgated without adequate delibera-
tion.” United States v. Aguilar-Huerta, 576 F.3d 365, 367-68
(7th Cir.), cert. denied sub nom. Shareef v. United States,
130 S. Ct. 811 (2009). And the district court’s thoughtful
explanation of Ocampo’s sentence puts to rest any sug-
gestion that the guideline produced an unreasonable
outcome in his case. See United States v. Moreno-Padilla, 602
F.3d 802, 813-14 (7th Cir. 2010), cert. denied, 131 S. Ct. 897
(2011).
Having resolved these preliminary matters, we turn
to the question at the heart of these appeals: What evi-
dentiary showing must a defendant make before a
district court is obliged to consider his request for a
lower sentence to account for the absence of a fast-track
program in that judicial district? At the time these defen-
dants were sentenced, of course, the district courts were
not permitted to consider the absence of a fast-track
program in crafting a sentence under 18 U.S.C. § 3553(a).
See United States v. Galicia-Cardenas, 443 F.3d 553, 555
(7th Cir. 2006); United States v. Martinez-Martinez, 442
F.3d 539, 543 (7th Cir. 2006). It’s now clear that, to the
contrary, district judges may take into account any sen-
tencing disparity arising from the absence of a fast-track
program. Reyes-Hernandez, 624 F.3d at 417. But Reyes-
Hernandez also emphasizes that, before a district court
will be obligated to evaluate whether a lower sentence
is warranted by the absence of a fast-track program,
the defendant must first establish that he would “have
been eligible for fast-track status had it been available
and show that he would have in fact pursued the op-
tion.” Id. at 420. Even before Reyes-Hernandez we had
Nos. 09-3932, 10-2190 & 10-2689 13
made the same point in United States v. Olmeda-Garcia, 613
F.3d 721, 724 (7th Cir. 2010), which explains that a defen-
dant who alludes to the benefits available in fast-track
districts but never tries “to demonstrate that he would
be eligible” in one of those districts cannot complain on
appeal if the sentencing court ignores this argument in
mitigation. See also United States v. Arrelucea-Zamudio,
581 F.3d 142, 156-57 (3d Cir. 2009) (“To justify a reasonable
variance by the district court, a defendant must show at
the outset that he would qualify for fast-track disposition
in a fast-track district.”); United States v. Jiménez-Beltre,
440 F.3d 514, 519 (1st Cir. 2006) (en banc) (holding that
district court need not respond to fast-track argument
unless defendant provides a factual basis “for assessing
the extent of the disparities”). 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 contention. See,
e.g., United States v. Grober, 624 F.3d 592, 599 (3d Cir.
2010); United States v. Felix, 561 F.3d 1036, 1044 (9th Cir.
2009); United States v. Quiñones-Medina, 553 F.3d 19, 22 (1st
Cir. 2009); United States v. Keleta, 552 F.3d 861, 866 (D.C.
Cir. 2009); United States v. Diaz, 533 F.3d 574, 578 (7th
Cir. 2008); United States v. Tahzib, 513 F.3d 692, 695 (7th
Cir. 2008); United States v. McGee, 494 F.3d 551, 557-58
(6th Cir. 2007); United States v. Acosta, 474 F.3d 999, 1003-
04 (7th Cir. 2007); United States v. Cunningham, 429 F.3d
673, 679 (7th Cir. 2005).
To receive leniency in any fast-track district, a defendant
must, as a starting point, promptly plead guilty, agree to
14 Nos. 09-3932, 10-2190 & 10-2689
a factual basis for the offense, and waive his rights to file
pretrial motions, to appeal, and to seek postconviction
relief under § 2255. See Memorandum from the U.S.
Attorney General to U.S. Attorneys (Sept. 22, 2003),
available at http://www.justice.gov/ag/readingroom/
ag-092203.pdf. See also Reyes-Hernandez, 624 F.3d at 412;
Olmeda-Garcia, 613 F.3d at 724. Beyond these universal
requirements, however, the United States Attorneys in
the judicial districts that offer fast-track sentencing have
not adopted uniform eligibility criteria. The Sentencing
Commission has taken the position that district
courts should not reduce the sentences of defendants
who participate in fast-track programs by more than the
equivalent of 4 offense levels, U.S.S.G. § 5K3.1, but
the guidelines do not catalogue the eligibility criteria
employed in the 16 fast-track programs. A compilation
of those criteria was prepared by the United States and
submitted as a sentencing exhibit in United States v.
Medrano-Duran, 386 F. Supp. 2d 943 (N.D. Ill. 2005), and
that timeworn document—which may or may not still
be accurate, and which does not include any informa-
tion about the two newest programs—is frequently cited
in distinguishing between the fast-track districts. See Fast-
Track Dispositions District-by-District Relating to Illegal
Reentry Cases, reprinted in 21 FED. S ENT’G R EP. 339 (2009).
What the document shows is that, as of 2005, some
districts did offer a reduction equivalent of 4 offense
levels to all defendants who participated in a fast-track
program. But other districts, like the District of Idaho,
the District of Nebraska, and the Southern District of
Texas, offer an eligible defendant at most a reduction
Nos. 09-3932, 10-2190 & 10-2689 15
of 2 levels; the Western District of Texas offers only 1 level.
Id. at 344, 347. And still other districts employ not a
departure-based program but a charge-bargain program
in which the defendant pleads guilty, typically to two
counts of improper entry by an alien, 8 U.S.C. § 1325,
and receives a fixed sentence in return. In most of these
districts, an eligible defendant’s sentence depends on
whether he is subject to a 16-level increase under
§ 2L1.2(b)(1)(A); if so, he will receive a term of 30 months
no matter what his sentencing range otherwise would
have been. Id. at 346, 347-48. In addition to these varia-
tions in the types of programs offered, at least one
district conditioned eligibility for its fast-track program on
the defendant’s criminal-history category, while most
others varied the available sentence reduction according
to the defendant’s offense level under § 2L1.2. Whether
the offense of conviction was a repeat violation of § 1326,
whether the defendant was on supervised release at
the time of the current offense, and the age and severity
of the defendant’s earlier crimes are typical factors that
can affect fast-track eligibility.
We can easily dispose of Mandujano’s and Ramirez’s
appeals because neither one made an effort to show that
he met the minimum eligibility criteria for fast-track
sentencing, much less that he would have qualified for
one of the 16 fast-track programs. In fact, Mandujano’s
lawyer conceded that his client had not fulfilled the
requirements that would have served as the inducement
for the government’s offer of fast-track relief. As for
Ramirez, in his sentencing memorandum he merely
speculated that he “may have been able to receive the
16 Nos. 09-3932, 10-2190 & 10-2689
benefit of a fast-track program” if sentenced in another
district. He did not try to establish a factual predicate
for that inconclusive guess, nor had he waived his rights
to file pretrial motions, to file a direct appeal, or to attack
his conviction under § 2255. And when the government
responded by casting doubt on Ramirez’s eligibility for
fast-track sentencing, Ramirez failed to contest that
proposition, filing no written reply and remaining
silent on the topic at his sentencing hearing. In short,
Mandujano’s and Ramirez’s “disparity” arguments were
illusory, and illusory arguments do not require a re-
sponse from the district court.
Ocampo’s appeal is trickier. For one thing, the govern-
ment has confessed error and advocates a remand for
resentencing in light of Reyes-Hernandez. But the gov-
ernment’s confession is not binding on us, see United States
v. Cruz, 595 F.3d 744, 745 (7th Cir.), cert. denied, 130 S. Ct.
3437 (2010); United States v. Anderson, 547 F.3d 831, 833
(7th Cir. 2008); United States v. Demaree, 459 F.3d 791,
793 (7th Cir. 2006), and since the threshold qualification
predates Reyes-Hernandez, see Olmeda-Garcia, 613 F.3d at
724, we cannot understand the government’s unwilling-
ness to defend the outcome it sought and won from the
district court. On the other hand, unlike Mandujano and
Ramirez, Ocampo at least made a minimal effort to posi-
tion himself like a defendant in a fast-track district. But
did he go far enough? We have yet to explore exactly
what a defendant needs to do to show that he is
similarly situated to an eligible defendant in a fast-track
district. Before argument we put that question to the
parties and asked them to file supplemental statements
making their best case.
Nos. 09-3932, 10-2190 & 10-2689 17
As it turns out, Ocampo and the government are mate-
rially at odds. Ocampo emphasizes that he pleaded guilty
at the first opportunity after arraignment and agreed to
the factual basis proffered by the government. He also
touts that he attached to his sentencing memorandum
a waiver of his rights to file pretrial motions, appeal his
sentence, and mount a collateral attack on his conviction
so long as he received “a sentence commensurate with
the sentences received by defendants in ‘fast-track’ juris-
dictions.” Thus, he insists, he “did everything that he
reasonably could be expected to do to establish that he
was similarly situated to defendants in Fast-Track dis-
tricts.” As for our question how a sentencing judge
should quantify a reduction in the defendant’s sentence
given the significant variations among the fast-track
programs, Ocampo ducks the matter entirely, insisting
that this court needn’t bother weighing in and instead
should just remand the case to let the district court de-
cide the question in the first instance. But that is no
answer to the question we posed; the very point of di-
recting further briefing was to assist us in giving
guidance to the district courts.
The government, meanwhile, maintains that the de-
fendant must unconditionally waive his rights—and must
do so at the time he pleads guilty. And the govern-
ment insists that the defendant must make a “rigorous
showing” not only that he generally is eligible for fast-
track sentencing but also that “he meets all the criteria
for a specific fast-track program currently employed in
another district.” Because it is the defendant’s burden
to establish an argument in mitigation, the govern-
18 Nos. 09-3932, 10-2190 & 10-2689
ment continues, “he cannot invoke this basis for a
variance unless he can establish that defendants with
comparable criminal histories and backgrounds do in
fact receive such reduced sentences in other districts.”
And, finally, the government proposes that the district
court ought to determine the degree of the defendant’s
sentence reduction, if any, with reference to whatever
“arguments based on both policy and facts” that the
government has put forth in that particular case. Those
arguments, the government suggests, could include the
fact that each district’s fast-track program is specifically
“tailored to allow efficient prosecutions” in that district,
as well as the fact that the government receives substan-
tially less benefit from a defendant who shows only that
he would have participated in a fast-track program had
it been available.
We conclude that the government has the better re-
sponse. The showing that Ocampo has proposed would
not establish similarity to an eligible defendant in a fast-
track district. First, Ocampo contends that it’s enough to
submit a waiver of his rights conditioned on receiving
what he deems to be “a sentence commensurate with
the sentences received by defendants in ‘fast-track’ juris-
dictions.” But that meaningless condition amounts
to an unenforceable waiver; the sentencing benefits
afforded defendants in fast-track districts vary widely, so
even if the district court had given Ocampo a break to
account for a perceived fast-track disparity, Ocampo still
could argue that his conditional appeal waiver did not
become operative because the sentence he received
wasn’t “commensurate” with sentences in fast-track
Nos. 09-3932, 10-2190 & 10-2689 19
districts. And then there is always the question whether
a unilateral waiver that was not made as part of a
plea agreement or discussed during the plea colloquy,
see F ED. R. C RIM. P. 11(b)(1)(N), can ever be binding,
cf. United States v. Sura, 511 F.3d 654, 661-63 (7th Cir.
2007) (holding that sentencing court plainly erred by
neglecting to inform defendant during plea colloquy
that his plea agreement included appeal waiver). So
Ocampo’s offer to relinquish his rights rings hollow. Not
only that, but a defendant in a fast-track district must
give up those rights immediately when he enters his
guilty plea, not a couple months down the road at sen-
tencing, like Ocampo. A defendant who wants to claim
parity with an eligible defendant in a fast-track district
must be prepared to accept the detriments that come
with that status.
The second quarrel we have with Ocampo’s response
has to do with his contention that a defendant must
show only that he meets the universal requirements for
fast-track eligibility without regard to how the program
is employed in any particular judicial district. In fact, a
defendant who ignores the additional criteria that differ
between programs by definition falls short of showing
that he is similarly situated to an eligible defendant
in any of the fast-track districts. And—as we hope
we’ve driven home by now—if the defendant can’t
show that he actually would be eligible to receive a fast-
track benefit in at least one judicial district, then his
“disparity” argument is illusory.
Finally, although the government has suggested rea-
sonable considerations for a sentencing judge to keep in
20 Nos. 09-3932, 10-2190 & 10-2689
mind when trying to evaluate and quantify a claim of
“disparity,” we think that the government’s position
omits what is probably the most useful information: a
thorough account of the likely benefit in each district
where the defendant would be eligible for a fast-track
sentence, as well as a candid assessment of the number
of fast-track programs for which he would not be eligi-
ble. This information is essential for a sentencing
court to appreciate the extent of the disparity, if any, that
would result if the defendant was not given a sen-
tencing break. In this case, for example, Ocampo would
have been eligible for a break in a few of the fast-track
districts, but the 40-month term he received falls
squarely within the “reduced” imprisonment range for
fast-track defendants in at least 25 percent of the pro-
grams. In three of these districts—the District of Idaho,
the District of Nebraska, and the Southern District of
Texas—Ocampo could have received at most a 2-level
decrease, which would have produced a guidelines
range of 33 to 41 months; in the Western District of Texas,
meanwhile, he could have received only a 1-level
decrease, resulting in a range of 37 to 46 months. Ocampo
should have disclosed this information to the district
court rather than speculating—wrongly, as it turns
out—that he would have gotten a 4-level decrease in
every last one of the fast-track districts.
So to summarize, a defendant claiming entitlement to
a lower sentence because of a perceived fast-track “dis-
parity” must promptly plead guilty, agree to the factual
basis proffered by the government, execute an en-
forceable waiver of specific rights before or during the
Nos. 09-3932, 10-2190 & 10-2689 21
plea colloquy, establish that he would receive a fast-track
sentence in at least one district offering the program, and
submit a thorough account of the likely imprisonment
range in the districts where he is eligible, as well as a
candid assessment of the number of programs for which
he would not qualify. Unless the defendant complies
with each of these steps, the sentencing court will be
free to reject the argument without comment. And given
these preconditions to a colorable claim of fast-track
disparity, we reject the government’s confession of error
in Ocampo’s appeal. The confession is difficult to
reconcile with Reyes-Hernandez and Olmeda-Garcia—and
harder still to reconcile with the government’s supple-
mental statement, which persuasively proposes that a
defendant can show he is similarly situated to an eligible
defendant in a fast-track district only by offering an
enforceable waiver of his rights at the time he pleads
guilty and establishing that he would be eligible for a fast-
track benefit in at least one other district that offers such
a program. Ocampo did neither. And for that reason
the district court did not commit error by saying
nothing in response to his illusory fast-track argument.
See Reyes-Hernandez, 624 F.3d at 420; Olmeda-Garcia, 613
F.3d at 724; Arrelucea-Zamudio, 581 F.3d at 156-57.
This conclusion is not altered by the fact that Reyes-
Hernandez was decided after Ocampo was sentenced.
Reyes-Hernandez was argued in November 2009, four
months before Ocampo filed his sentencing memorandum
and seven months before he was sentenced. Indeed,
Ocampo anticipated the winning argument in Reyes-
Hernandez when he urged the district court to abandon
22 Nos. 09-3932, 10-2190 & 10-2689
our decisions in Galicia-Cardenas and Martinez-Martinez
in light of the Supreme Court’s holding in Kimbrough v.
United States, 552 U.S. 85 (2007). In support he cited the
Third Circuit’s decision in Arrelucea-Zamudio, which, like
Reyes-Hernandez, requires a defendant to show that he
would be eligible for a benefit in a fast-track district
before he can expect a sentencing court to respond to his
disparity argument. 581 F.3d at 156-57. And his submis-
sion of a form waiver of his rights from the Federal De-
fender’s website shows he knew he needed to establish
that he actually would have been eligible for fast-track
sentencing. A defendant who urged the district court to
adopt the reasoning that eventually prevailed in Reyes-
Hernandez doesn’t deserve a “do-over” just because
he neglected to follow through on his own argument.
Vazquez-Pita, 411 F. App’x at 891; Morant-Jones, 411
F. App’x at 887; Abasta-Ruiz, 409 F. App’x at 950. Ocampo
wasn’t caught off guard by this threshold qualification;
it’s just that his attempt to carry his burden fell far short.
Having said what we have said, we recognize that
establishing that a defendant in this circuit would
have received a fast-track benefit in a district that offers
one can be a little complicated. We commend Ocampo’s
lawyer for taking several positive steps, with an assist
from the Federal Defender’s helpful website, toward
establishing his client’s eligibility for the program. To
cut through all the muss and fuss in future cases, we
urge the U.S. Attorneys’ offices in this circuit to work
with defendants seeking fast-track consideration and to
willingly stipulate to sentencing judges that defendants
are eligible if that appears to be the case.
Nos. 09-3932, 10-2190 & 10-2689 23
To wrap up, we conclude that the fast-track arguments
made by all three of these defendants were illusory and
could be passed over in silence. Accordingly, we A FFIRM
each of their sentences; Ramirez’s sentence, however, is
M ODIFIED to clarify that his participation in the Inmate
Financial Responsibility Program is voluntary.
7-20-11