In the
United States Court of Appeals
For the Seventh Circuit
No. 09‐3932
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
SERGIO SANDOVAL RAMIREZ,
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
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
FRANCISCO OCAMPO‐PINEDA,
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
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
LUIS A. MANDUJANO‐GONZALEZ,
Defendant‐Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09 CR 586‐1—Amy J. St. Eve, Judge.
ARGUED APRIL 27, 2011 — DECIDED JULY 20, 2011
AMENDED DECEMBER 23, 2011*
Before CUDAHY, EVANS**, and TINDER, Circuit Judges.
PER CURIAM. 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.
*
This opinion is being released initially in typescript form.
**
Circuit Judge Terence T. Evans died on August 10, 2011, and
did not participate in the amended decision of this case, which
is being resolved by a quorum of the panel under 28 U.S.C. §
46(d).
Nos. 09‐3932, 10‐2190 & 10‐2689 3
§ 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 emphasizes that no district judge is required
to evaluate this mitigating argument until the defendant
demonstrates 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 published
opinion, but four nonprecedential orders offer helpful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 be eligible to receive a fast‐track sentence in at least
one district offering the program and submit the likely
imprisonment range in that district. Unless and until the
defendant meets these preconditions, his “disparity”
argument is illusory and may be passed over in silence.
Moreover, a defendant would be well advised to provide
information on eligibility and the likely imprisonment range
in any other district in which he would qualify for a fast‐
track sentence and also provide a candid assessment of the
number of programs for which he would not qualify. This
4 Nos. 09‐3932, 10‐2190 & 10‐2689
type of information might strengthen the defendant’s
disparity argument and would prove very useful to the
sentencing court. Such information would allow the
sentencing court to appreciate the extent of the disparity, if
any, that would result if the defendant was not given a
sentencing break. Of course, the government would be free
to argue that the defendant would be ineligible for a
reduction in a fast‐track district, that the likely imprisonment
range in any district where he would be eligible would be
different from that suggested by the defendant, and that any
fast‐track disparity would not warrant a lower sentence
anyway.
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 calculation 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” program
in the Northern District of Illinois created an unwarranted
Nos. 09‐3932, 10‐2190 & 10‐2689 5
disparity between his guidelines imprisonment 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 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 demonstrated 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 residency.
But eight years later he was convicted in Illinois of
aggravated kidnapping, so immigration officials revoked his
status and removed him to Mexico. He returned 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
aggravated kidnapping constituted a crime of violence for
purposes of § 2L1.2(b)(1)(A)(ii) and accordingly increased 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.
6 Nos. 09‐3932, 10‐2190 & 10‐2689
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 accepting Ramirez’s
fast‐track argument. The court added, though, that if given
discretion to accept Ramirez’s argument, 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 sentenced 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 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.
Nos. 09‐3932, 10‐2190 & 10‐2689 7
The district court disagreed. For purposes 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 concluded 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 district
court was not convinced; brushing aside Ocampo’s
generalized attack on § 2L1.2(b)(1)(A)(ii), the court reasoned
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
discrepancy” 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
8 Nos. 09‐3932, 10‐2190 & 10‐2689
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
document, which is a form waiver that the Federal Defender
makes available on its website, conditions the
relinquishment of rights on the defendant’s receiving “a
sentence 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
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 government
concedes that this directive was plain error because sentencing
courts do not have the authority to mandate participation 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,
Nos. 09‐3932, 10‐2190 & 10‐2689 9
insists that touching a teenager’s breasts does not require the
use or threat of physical 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
enumerated 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 statutory 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, constitutes
“sexual abuse of a minor.” The offense proscribes 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 penetration’ 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 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
608 F.3d 331, 335 (7th Cir.), cert. denied, 131 S. Ct. 647 (2010).
10 Nos. 09‐3932, 10‐2190 & 10‐2689
“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 common 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 violence. 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 because it was promulgated without
adequate deliberation.” 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 suggestion 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 evidentiary
showing must a defendant make before a district court is
obliged to consider his request for a lower sentence to
Nos. 09‐3932, 10‐2190 & 10‐2689 11
account for the absence of a fast‐track program in that
judicial district? At the time these defendants 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 sentencing 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 option.” Id. at 420.
Even before Reyes‐Hernandez we had made the same point in
United States v. Olmeda‐Garcia, 613 F.3d 721, 724 (7th Cir.
2010), which explains that a defendant 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 (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.
12 Nos. 09‐3932, 10‐2190 & 10‐2689
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 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 information 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. SENT’G REP. 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 of 2 levels; the Western District of Texas offers
only 1 level. Id. at 344, 347. And still other districts employ
Nos. 09‐3932, 10‐2190 & 10‐2689 13
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 variations 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 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
14 Nos. 09‐3932, 10‐2190 & 10‐2689
do not require a response from the district court.
Ocampo’s appeal is trickier. For one thing, the government
has confessed error and advocates a remand for resentencing
in light of Reyes‐Hernandez. But the government’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 unwillingness 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 position 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.
As it turns out, Ocampo and the government are materially
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’ jurisdictions.” 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 districts.” 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
decide the question in the first instance. But that is no answer
Nos. 09‐3932, 10‐2190 & 10‐2689 15
to the question we posed; the very point of directing further
briefing was to assist us in giving guidance to the district
courts.
The government, meanwhile, maintains that the defendant
must unconditionally waive his rights—and must do so at
the time he pleads guilty. And the government 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 government 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 substantially 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 response.
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’ jurisdictions.” 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,
16 Nos. 09‐3932, 10‐2190 & 10‐2689
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 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 FED. R. CRIM. 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 sentencing, 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
reasonable considerations for a sentencing judge to keep in
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
Nos. 09‐3932, 10‐2190 & 10‐2689 17
for which he would not be eligible. This information is
important for a sentencing court to appreciate the extent of
the disparity, if any, that would result if the defendant was
not given a sentencing 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 programs.
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. But we stop short of requiring Ocampo to have
disclosed this information to the district court. Of course, the
government would have been free to argue that the likely
benefit in the district or districts where Ocampo was eligible
would have been different from that which he suggested, or
that he would not have been eligible for a reduction in other
fast‐track districts.
So to summarize, a defendant claiming entitlement to a
lower sentence because of a perceived fast‐track “disparity”
must promptly plead guilty, agree to the factual basis
proffered by the government, execute an enforceable waiver
of specific rights before or during the plea colloquy, establish
that he would be eligible to receive a fast‐track sentence in at
least one district offering the program, and submit the likely
imprisonment range in that district. Unless the defendant
complies with each of these steps, the sentencing court will
be free to reject the argument without comment. Of course,
district courts have the discretion to ask both the defendant
and the government for additional relevant information and
such information may be made an additional prerequisite to
consideration of the defendant’s argument. For example, the
government would likely want to produce an assessment of
the number of programs for which the defendant would not
qualify. And given these preconditions to a colorable claim
18 Nos. 09‐3932, 10‐2190 & 10‐2689
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 supplemental
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 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 submission of a form waiver of his
rights from the Federal Defender’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.
Nos. 09‐3932, 10‐2190 & 10‐2689 19
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 have provided several sources of
information regarding fast‐track policies.2 We further 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
2
Defendants may use a variety of sources to obtain the
necessary information. Of course, defendants may first look to
publicly available plea agreements. There are several
memoranda discussing fast‐track district programs. See 21 FED.
SENT’G REP. 339 (2009); Memorandum from the Deputy
Attorney General to U.S. Attorneys (Dec. 28, 2009), available at
http://www.fd.org/pdf_lib/Fast%20Track%20Ogden%20mem
o%2012.28.09.pdf (last visited Dec. 14, 2011). Articles also
discuss district programs’ requirements. See, e.g., Ingrid V.
Eagly, Prosecuting Immigration, 104 NW. U. L. REV. 1281, 1322
n.251 & 254 (2010) (citing interviews with Federal Defender in
District of New Mexico and “Panel Representative” in the
Southern District of California); James F. Smith, United States
Immigration Law as We Know It: El Clandestino, the American
Gulag, Rounding Up the Usual Suspects, 38 U.C. DAVIS L. REV. 747,
785 n.167 (2005) (citing interview with Federal Defender in the
Northern District of California).
20 Nos. 09‐3932, 10‐2190 & 10‐2689
that appears to be the case.
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 AFFIRM
each of their sentences; Ramirez’s sentence, however, is
MODIFIED to clarify that his participation in the Inmate
Financial Responsibility Program is voluntary.