United States Court of Appeals
For the First Circuit
No. 06-1189
UNITED STATES OF AMERICA,
Appellee,
v.
FALCÓN DIÓMEDES ANDÚJAR-ARIAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and José A. Fusté,* District Judge.
Catherine K. Byrne for appellant.
Cynthia A. Young, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief for
appellee.
November 19, 2007
*
Of the District of Puerto Rico, sitting by designation.
LIPEZ, Circuit Judge. Falcón Diómedes Andújar-Arias
("Andújar") claims that his sentence for illegal reentry after
deportation was unlawful because the district court declined to
account for "unwarranted" sentence disparities as required by 18
U.S.C. § 3553(a)(6). He claims that these "unwarranted"
disparities result from the operation of fast-track sentencing
programs in other districts. These programs allow some districts
whose resources are strained by high immigration workloads to offer
diminished charges or sentences in immigration cases in exchange
for a defendant's agreement to waive certain procedural rights. In
addition, Andújar argues that fast-track programs violate his
constitutional right to equal protection. Finally, he argues that
the district court erred in treating his prior convictions as
sentencing factors. We reject each of these contentions and affirm
his sentence.
I.
Andújar was born in the Dominican Republic in 1968 and
entered the United States when he was about eighteen years old to
join his mother, who had already immigrated to Peabody,
Massachusetts. Shortly thereafter, Andújar became addicted to
cocaine and was convicted on cocaine distribution charges in 1993.
He was deported in 1996, after serving his sentence.
In 1998, Andújar returned to the United States and
assumed the name of "Dwight Braswell," an identity he maintained
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until the time of his arrest in this case. By 1999, he had become
addicted to heroin and was convicted for three heroin offenses
between April 1999 and November 2000. According to the Pre-
Sentence Report ("PSR") prepared by the Probation Office in
connection with the current illegal reentry charge, Andújar devoted
himself to recovering from his addictions following his arrest in
November 2000. He signed himself into a seven-day detoxification
program and then joined an outpatient program with weekly meetings;
he became an active member of the Church of the Living God in
Woburn, Massachusetts; and he secured a job working for a fellow
parishioner repairing floors.
Despite these positive developments, Andújar was
convicted of indecent assault and battery in April 2002.
Fingerprints taken in connection with that conviction revealed his
true identity; as a result, he was subsequently indicted for
illegal reentry into the United States after having been deported.
See 8 U.S.C. §§ 1326(a)(1), (b)(2). Andújar entered a guilty plea
to that charge in July 2005.
The PSR calculated a base offense level of "24," and
recommended a three-level reduction for acceptance of
responsibility. Using a criminal history category of "V," the PSR
concluded that the applicable Guidelines sentencing range was 70-87
months of imprisonment. Andújar did not object to the PSR or its
Guidelines calculations. However, he submitted a sentencing
-3-
memorandum to the district court arguing that: (1) the court could
not use prior convictions that were not charged in the indictment
or admitted by him in determining his sentence; and (2) a below-
Guidelines sentence of forty-eight months would be adequate to
achieve the purposes of sentencing prescribed by statute. See 18
U.S.C. § 3553(a) (requiring the court to "impose a sentence
sufficient, but not greater than necessary" to meet certain
sentencing goals and which enumerates a number of factors that the
court "shall consider" in arriving at that sentence). Andújar
based his request on several grounds, including his "extraordinary"
pre-arrest rehabilitation and the need to avoid unwarranted
sentence disparities resulting from the absence of a fast-track
program in the District of Massachusetts. Fast-track programs in
other parts of the country might allow a defendant in Andújar's
circumstances to receive a reduced sentence in exchange for a
guilty plea to the charged immigration offense (or to a lesser
reentry charge) and a waiver of certain procedural rights. We
describe these programs in detail in Section II, infra.
At the sentencing hearing, the district court rejected
all of Andújar's contentions. It explained that the Supreme
Court's decision in Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998), allows prior felony convictions to be used as
sentencing factors so long as they are proven to the court by a
preponderance of the evidence. The court found that the Probation
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Office's investigation was sufficient to satisfy that standard.
The court also rejected defendant's fast-track disparities
argument, concluding, based on this court's previous decision in
United States v. Martin, 221 F.3d 52 (1st Cir. 2000), that the
different sentencing standards of different districts "was not . .
. [a] sufficient justification for a departure."1 Although the
Court acknowledged Andújar's pre-2002 arrest self-rehabilitation,
it found that his criminal history and persistent use of a false
identity – even throughout his alleged rehabilitation –
counterbalanced that rehabilitation and made a variance
unwarranted. Considering all relevant factors, the court announced
a sentence of 70 months of imprisonment – at the bottom of the
Guidelines range – to be followed by two years of supervised
release.
Andújar now appeals, claiming that the court erred in
refusing to consider sentence disparities engendered by the
presence of fast-track programs in some districts and not others.
1
Although the Court uses the term "departure" in reference to
the defendant's request for a below-Guidelines sentence, in fact
the defendant was requesting a variance. The distinction between
departures and variances is a product of the Supreme Court's
decision in United States v. Booker, 543 U.S. 220 (2005), which
made the Sentencing Guidelines advisory rather than mandatory.
Courts may still justify sentences outside the recommended
Guidelines range by reference to Guidelines "departure" provisions.
When a court imposes a sentence outside the Guidelines range based
on its assessment of the section 3553(a) factors - without regard
to specific Guidelines departure provisions - the deviation is
considered a variance.
-5-
By failing to consider these factors, Andújar argues, the district
court committed an error of law, making his sentence per se
unreasonable. He also argues, for the first time on appeal, that
fast-track sentencing programs – as currently applied – violate his
constitutional right to equal protection under the Fifth and
Fourteenth Amendments. Finally, he argues that recent decisions by
the Supreme Court cast doubt on the continuing validity of
Almendarez-Torres.
II.
We review constitutional questions de novo. Goodrich v.
Hall, 448 F.3d 45, 49 (1st Cir. 2006). We also review claims of
legal error in sentencing de novo, United States v. Wallace, 461
F.3d 15, 33 (1st Cir. 2006), but we review the final sentence for
reasonableness, regardless of whether it falls inside the
Sentencing Guidelines range, as it does here, or outside. United
States v. Martínez-Vives, 475 F.3d 48, 54 (1st Cir. 2007).
Andújar contends that the district court committed legal
error in rejecting his argument that the availability of fast-track
sentencing programs in some districts creates "unwarranted"
sentence disparities which compelled a below-Guidelines sentence in
this case. Such inconsistencies must be taken into account, he
argues, under 18 U.S.C. § 3553(a)(6), which requires courts to
consider "the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
-6-
similar conduct." Andújar's unwarranted disparities argument has
three components: first, that fast-track programs generally create
unwarranted sentence disparities as defined by § 3553(a)(6);
second, that the Attorney General's implementation of fast-track
programs has fallen outside Congress's mandate, thereby creating
unwarranted disparities; and third, that charge-bargaining fast-
track programs, both inherently and as they have been implemented
in districts around the country, contravene Congressional intent
and create unwarranted disparities. Andújar asks us to conclude
that his sentence was unreasonable as a matter of law because the
district court failed to vary his sentence from the Guidelines
range based on these disparities.
The government contends that the district court did
consider Andújar's fast-track argument, but rejected it on the
basis that such disparities are not "unwarranted." It further
argues that disparities arising from Congressionally approved fast-
track programs cannot be considered "unwarranted" under the
statute, and that sentence variations arising from charge-
bargaining systems are a product of executive discretion and, as
such, provide no basis for varying from the Guidelines sentence.
Although Andújar says that he only seeks from us a
directive to the district court that it may consider in its
sentencing decision the unwarranted sentencing disparities created
by the fast-track programs, that is not the logic of his arguments.
-7-
Taken to their logical conclusion, Andújar's arguments would compel
us to find that any sentence in an illegal reentry case that failed
to account for fast-track disparities reflected an unwarranted
sentencing disparity and hence was per se unreasonable. In
essence, he asks us to find that district courts must, as a matter
of law, account for such disparities.
We reach the opposite conclusion. We agree with the
government that the limited disparities arising from approved fast-
track programs reliant on downward sentence departures, as
contemplated by Congress, are permissible. We also find that fast-
track programs using charge-bargaining measures rather than
downward sentence departures are within the discretion of the
United States Attorneys and additionally have been authorized by
the Attorney General. Therefore, the disparities resulting from
fast-track programs, whether a product of downward departures or
charge-bargaining programs, are "warranted" and may not be
considered by a district judge in sentencing as a basis for a
variance from a Guidelines sentence pursuant to § 3553(a)(6).
In this case, the district court did not commit legal
error by declining to adjust Andújar's sentence on the basis of
such disparities. We begin our analysis by briefly discussing the
background of fast-track programs.
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A. Origins of the Fast-Track Program
The first fast-track program was a product of
prosecutorial discretion rather than Congressional legislation.
See Rebecca Schendel Norris, Fast-Track Disparities in the Post-
Booker World: Re-examining Illegal Reentry Sentencing Policies, 84
Wash. U. L. Rev. 747, 750 (2006) (hereinafter "Schendel Norris").
In the mid-1990s, the United States Attorney's Office for the
Southern District of California allowed some offenders charged with
illegal reentry under 8 U.S.C. § 1326(b) – which carried a maximum
sentence of five or fifteen years, depending on the defendant's
criminal history – to plead guilty to a lesser reentry offense,
§ 1326(a) – which carried only a two-year maximum sentence – if the
offender agreed to waive indictment, plead guilty, waive appeal of
all sentencing issues, stipulate to the two-year sentence, and
further agreed not to seek downward adjustments or departures.2
Id.; see United States v. Estrada-Plata, 57 F.3d 757, 759 (9th Cir.
1995). Similar programs were adopted by federal prosecutors in
2
8 U.S.C. §§ 1326(a)-(b) generally prohibit the crime of
illegal reentry. Section 1326(b) imposes additional penalties for
the illegal reentry offense based on the prior criminal history of
the defendant. Section 1326(b)(1) applies additional penalties to
an individual whose "removal was subsequent to a conviction for
commission of three or more misdemeanors involving drugs, crimes
against the person, or both, or a felony (other than an aggravated
felony)" and § 1326(b)(2) applies to an individual whose "removal
was subsequent to a conviction for commission of an aggravated
felony." In 1994, Congress increased the maximum penalties for
violations of § 1326(b)(1) and § 1326(b)(2) from 5 and 15 years to
10 and 20 years, respectively.
-9-
Texas, New Mexico, Arizona and in other California districts.
United States v. Martínez-Flores, 428 F.3d 22, 25 (1st Cir. 2005).
In 2003, Congress passed the Prosecutorial Remedies and
Other Tools to End the Exploitation of Children Today (PROTECT)
Act, Pub. L. No. 108-21, 117 Stat. 650 (2003) (codified in sections
18, 28, and 42 of the U.S. Code), which explicitly authorizes fast-
track programs. The Act seeks to "substantially reduce[]" the
"incidence of downward departures" in sentencing, PROTECT Act, §
401 (m)(2)(A), 117 Stat. at 675, and also creates an explicit,
regulated exception for fast-track programs. Id. § 401 (m)(2)(B),
117 Stat. at 675. To that end, the Act required the U.S.
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."3 Id. Thus, the language of the PROTECT Act suggests
that Congress intended to authorize a narrow departure scheme for
3
The Sentencing Commission complied, establishing U.S.S.G.
§ 5K3.1, which mirrored the PROTECT Act's language. Section 5K3.1
reads:
Upon motion of the Government, the court may depart
downward not more than 4 levels pursuant to an early
disposition program authorized by the Attorney General of
the United States and the United States Attorney for the
district in which the court resides.
U.S.S.G. § 5K3.1.
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fast-track programs while otherwise restricting the use of downward
departures.
There is additional evidence of Congress's intent to
establish a narrow exception in a House of Representatives report
issued prior to the enactment of the PROTECT Act, in connection
with a companion bill, the Child Abduction Prevention Act of 2003
(also known as the "Feeney Amendment"). The House Report to the
Feeney Amendment endorsed a formal program of limited departures
from the Sentencing Guidelines for "those particular classes of
offenses (such as illegal reentry) whose high incidence within the
district has imposed an extraordinary strain on the resources of
that district as compared to other districts." See 149 Cong. Rec.
H2405, H2421 (daily ed. Mar. 27, 2003) (amendment offered by Rep.
Feeney). The report explicitly acknowledged that sentence
disparities would result between fast-track districts and non-fast
track districts; however, it specified that such disparities "do[]
not confer authority to depart downward on an ad hoc basis in
individual cases." Id. at H2421; see, e.g., United States v.
Mejía, 461 F.3d 158, 163 (2nd Cir. 2006).4
4
Although this is a House Report only, the Feeney Amendment
was itself narrowed by the House-Senate Conference Committee, with
the portion addressing fast-track programs remaining in the final
signed version. See Stephanie Bibas, The Feeney Amendment and the
Continuing Rise of Prosecutorial Power to Plea Bargain, 94 J. Crim.
L. & Criminology 295, 295-96 (2004).
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A contemporaneous report to Congress from the U.S.
Sentencing Commission also noted the tension between § 3553(a) and
the PROTECT Act, §§ 401(m)(2)(A) and (B), explicitly highlighting
that sentencing disparities would result:
Defendants sentenced in districts without
authorized early disposition programs . . .
can be expected to receive longer sentences
than similarly-situated defendants in
districts with such programs. This type of
geographical disparity appears to be at odds
with the overall . . . goal of reducing
unwarranted sentencing disparity . . . .
Furthermore, sentencing courts in districts
without early disposition programs,
particularly those in districts that adjoin
districts with such programs, may feel
pressured to employ other measures--downward
departures in particular--to reach similar
sentencing outcomes for similarly situated
defendants. This potential response by
sentencing courts could undermine the goal of
the PROTECT Act to reduce the incidence of
downward departures.
U.S. Sentencing Commission, Report to Congress: Downward Departures
from the Federal Sentencing Guidelines at 66-67 (Oct. 2003),
available at http://www.ussc.gov/departrpt03/departrpt03.pdf. The
report concluded that review of fast-track program performance
might be appropriate in the future to provide additional guidance
to the courts on these issues. Id. at 67.
Shortly after Congress passed the PROTECT Act, and
pursuant to the legislation, the Attorney General issued a
memorandum outlining the elements required for any fast-track
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program5 and explaining the conditions necessary to obtain the
Attorney General's authorization for such a program.6 A month
later, twenty-six fast-track applications were submitted in fifteen
districts; thirteen specifically addressed the crime of illegal
reentry. Schendel Norris, supra, at 757. Those approved were:
Arizona, Idaho, Nebraska, New Mexico, North Dakota, Oregon, all
four California districts, the Southern and Western Districts of
Texas, and the Western District of Washington. Id. at 757-58. At
the time of Andújar's sentencing, Massachusetts had no fast-track
program.
5
Among these requirements, a defendant must agree to: accept
the factual basis of the charge against him, forgo filing pre-trial
motions described in Federal Rule of Criminal Procedure 12(b)(3),
waive appeal and waive collateral challenges under 28 U.S.C. § 2255
(except on the issue of ineffective assistance of counsel).
Memorandum from John Ashcroft, Attorney General, to United States
Attorneys 2 (September 22, 2003), reprinted in 16 Fed. Sent. R. 134
(Dec. 2003) (hereinafter "Ashcroft Memorandum").
6
The memo stated that fast-track programs were appropriate
where:
(1) the district confronts an exceptionally large number
of a specific class of offenses within the district, and
failure to handle such cases on an expedited or "fast-
track" basis would significantly strain prosecutorial and
judicial resources in the district; or
(2) the district confronts some other exceptional local
circumstance with respect to a specific class of cases
that justifies expedited disposition of such cases; ...
Ashcroft Memorandum, supra, at *2.
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B. The Statutory Challenge
Whether sentence disparities attributable to the
existence of fast-track programs are "unwarranted" is a question of
first impression in this circuit. Every other circuit except the
D.C. Circuit has addressed this issue, and each has reached the
same conclusion. Because sentence disparities resulting from the
presence of fast-track programs in some districts and the absence
thereof in others are not unwarranted, a court's failure to adjust
a sentence to compensate for such disparities does not make that
sentence unreasonable. Mejía, 461 F.3d at 163; United States v.
Vargas, 477 F.3d 94, 98-99 (3rd Cir. 2007); United States v. Perez-
Pena, 453 F.3d 236, 243 (4th Cir. 2006); United States v. Aguirre-
Villa, 460 F.3d 681, 683 (5th Cir. 2006); United States v.
Hernandez-Fierros, 453 F.3d 309, 314 (6th Cir. 2006); United States
v. Martínez-Martínez, 442 F.3d 539, 542 (7th Cir. 2006); United
States v. Sebastián, 436 F.3d 913, 916 (8th Cir. 2006); United
States v. Marcial-Santiago, 447 F.3d 715, 718 (9th Cir. 2006);
United States v. Martínez-Trujillo, 468 F.3d 1266, 1268-69 (10th
Cir. 2006); United States v. Anaya Castro, 455 F.3d 1249, 1252
(11th Cir. 2006). The Fourth Circuit has taken an additional step,
finding that a district court's below-Guidelines sentence was
unreasonable as a matter of law because the court's justification
for such variance, namely a desire to avoid fast-track sentence
disparities, was improper. Pérez-Pena, 453 F.3d at 241 ("If a
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district court provides an inadequate statement of reasons or
relies on improper factors in imposing a sentence outside the
properly calculated advisory guideline range, the sentence will be
found unreasonable and vacated."). In reaching these conclusions,
courts have relied on the same two-step rationale: "Congress must
have thought the disparity warranted when it authorized early
disposition programs without altering § 3553(a)(6)," Aguirre-Villa,
460 F.3d at 683, and it is "within the province of the policymaking
branches of government to determine that certain disparities are
warranted, and thus need not be avoided." Sebastián, 436 F.3d at
916.
While we have not squarely addressed this issue before,
we have twice expressed in dicta our view that sentence disparities
arising from fast-track programs are not "unwarranted." See United
States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en
banc) ("[The existence of fast-track programs] certainly permits
disparities but they are the result of a congressional choice made
for prudential reasons, implicitly qualifying the general aim of
equality."); United States v. Martínez-Flores, 428 F.3d 22, 30 n.3
(1st Cir. 2005) ("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."). However, in each case, we did not
-15-
have to reach the ultimate substantive issue. Jiménez-Beltre, 440
F.3d at 519 ("[T]he district court ruled that the defendant had not
furnished a factual basis for assessing the extent of the
disparities or provided a reason why to take them into account. .
. . In declining to alter the sentence on this ground, the district
court did not act unreasonably."); Martínez-Flores, 428 F.3d at 30
n.3 (dismissing the argument on plain error grounds). We now join
the other circuit courts and make that holding explicit. Because
Congress has authorized fast-track programs with the understanding
that such programs would create sentencing disparities, we find
that such disparities are not unwarranted as a matter of law.
Therefore, a sentence imposed without consideration of such
disparities under § 3553(a) is not legally erroneous or, as
defendant would put it, per se unreasonable. In passing the
PROTECT Act, Congress determined that the benefits of maintaining
high prosecution rates and relieving the case management burdens on
many districts outweighed the costs of lower sentences. See,
e.g., Martínez-Martínez, 442 F.3d at 542. As a court we are not in
a position to second guess that determination.
Seeking to convince us otherwise, Andújar argues that
whether disparities are warranted within the context of
§ 3553(a)(6) must depend only upon the nature of the offense and
the offender, and that the needs of the government – including the
burdens placed upon its resources by the high incidence of
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particular crimes – cannot serve as a legitimate basis for
interdistrict disparities. Andújar supports this claim by pointing
out that § 3553(a) itself, in listing the factors the court must
consider when imposing a sentence, focuses on the nature of the
offense and the offender and never mentions governmental resources.
In addition, he argues that the legislative history behind the
"unwarranted disparity" language in § 3553(a)(6) also indicates no
expectation that scarce government resources could justify sentence
disparities. However, this argument ignores Congress's authority
to modify that focus in the PROTECT ACT itself.7 We agree with the
Ninth Circuit that
when Congress passed the PROTECT Act, it did
so with knowledge that 18 U.S.C. § 3553(a)(6)
was directing sentencing courts to consider
the need to avoid unwarranted sentencing
disparities. By authorizing fast-track
programs without revising the terms of
§ 3553(a)(6), Congress was necessarily
providing that the sentencing disparities that
result from these programs are warranted and,
as such, do not violate § 3553(a)(6).
7
Moreover, defendant overstates his argument. Even before
the adoption of the PROTECT ACT, Congress had determined that
sentencing disparities are warranted in some circumstances to
address government resources and administrative concerns. For
example, where the government finds that a specific defendant has
assisted in other prosecutions, saving the prosecuting attorneys
time and resources, Congress has explicitly allowed a departure
from the statutorily required minimum sentence. 18 U.S.C. §
3553(e) (2003) ("Upon motion of the Government, the [district]
court[s] shall have the authority to impose a sentence below a
level established by statute as a minimum sentence so as to reflect
a defendant's substantial assistance in the investigation or
prosecution of another person who has committed an offense."); see
Pérez-Pena, 453 F.3d at 242.
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Marcial-Santiago, 447 F.3d at 718. We therefore reject Andújar's
argument that sentence disparities arising from Congressionally
sanctioned fast-track programs are unwarranted under § 3553(a)(6).
C. The As-Applied Challenge
Andújar also presents an as-applied challenge to fast-
track programs, contending that even if disparities occasioned by
Congressionally approved fast-track programs are "warranted,"
disparities arising from fast-track programs as they are currently
implemented are "unwarranted" because they deviate from
Congressional intent. Specifically, Andújar argues that the
Attorney General's decisions to approve and deny fast-track
applications in individual districts have defied Congressional
intent. Because the Attorney General's actions are at odds with
Congressional intent, Andújar concludes that the disparities
resulting from this system have not in fact been "warranted" by
Congress. To our knowledge no other circuit has squarely decided
such a claim and the district court did not explicitly address the
as-applied challenge raised below.
To support his argument that the Attorney General has
defied Congressional intent in its implementation of the fast-track
programs, Andújar marshals substantial statistical evidence,
including data prepared by the United States Sentencing Commission
Office of Policy Analysis, to show that the Attorney General has
approved fast-track programs in districts where immigration cases
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make up a low percentage of the district's total caseload and has
denied programs to at least one district where they make up a high
percentage of the caseload. The Sentencing Commission Office's
2003 report states that, for that year, immigration-related
sentences accounted for 21.9% of the national total of terms
imposed. They accounted for 54% of the sentences handed down in
the Southern District of California, 54% in the Southern District
of Texas, and 53% in the District of Arizona. However, they
accounted for only 6% of the sentences in the Western District of
Washington and 11% in the District of Nebraska, both of which
maintained fast-track programs. See United States Sentencing
Commission, Office of Policy Analysis, 2003 Datafiles, generally
available at http://www.ussc.gov/linktojp.htm (compiling annual
sentencing statistics and reporting the number of immigration
sentences in relation to the number of total sentences in Table 5
of each file). In addition, Andújar notes that the Attorney
General denied a fast-track program to the District of Utah, where
immigration cases comprised 27% of the sentences imposed in 2004.
Id. According to Andújar, this data shows that these fast-track
programs, as regulated by the Attorney General, have strayed from
the intent of Congress as expressed by the House Report, which
stated that fast-track programs be approved for "particular classes
of offenses (such as illegal reentry) whose high incidence within
[a] district has imposed an extraordinary strain on the resources
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of that district as compared to other districts." 149 Cong. Rec.
at H2421 (daily ed. Mar. 27, 2003).
In a further attempt to support this argument, Andújar
compares the number of immigration cases per Assistant United
States Attorney ("AUSA") in each district, and finds that these
numbers also fail to correlate with the incidence of fast-track
approval.8 Based on these statistics, Andújar concludes that fast-
track programs, as they are implemented currently, deviate from
Congressional intent, and that they thereby create arbitrary
sentence disparities across districts.
The government responds that the statistical
relationships cited by Andújar present, at best, an incomplete
picture of the resource demands imposed by illegal reentry cases on
each of the districts studied. When Congress authorized the
Attorney General to approve fast-track programs, it did not
restrict the criteria for such programs to the mere proportion of
each district's caseload comprised of immigration cases. Instead,
8
Specifically, Andújar questions why the Attorney General
denied an early disposition program for the District of Utah, where
27% of its total caseload involves immigration cases, but
authorized such programs in the Western District of Washington,
North Dakota, Idaho, Nebraska, and the Northern District of
California - each of which sentenced fewer than 100 immigration
cases in 2003, and each of which had a caseload of, at most, three
immigration cases per AUSA. See Government's Supplemental Response
in Opposition to Defendant's Motion for a Non-Guideline Sentence
Based on Fast-Track Programs at 7, United States v. Medrano-Duran,
386 F. Supp. 2d 943 (N.D. Ill. 2005) (No. 1:04-cr-00884) (internal
citations omitted).
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it allowed the Attorney General to evaluate such factors as the
number and type of immigration cases encountered by each district
and the quantity and variety of resources each district could
marshal in response. See, e.g., Ashcroft Memorandum, at *1-2.
Andújar's statistic of choice is the number of
immigration cases as a percentage of total cases within each
district. However, this measure of the resource burden resulting
from immigration caseloads obscures the fact that different types
of cases may require different types and amounts of resources.9 In
addition, the statistics dividing immigration cases by the number
of AUSAs lump together attorneys handling civil and criminal cases
and do not account for AUSAs assigned to particular programs, such
as the Organized Crime and Drug Enforcement Task Force. Even a
district with significant personnel can find resources tight when
only a small subset of its workforce is available for immigration
cases. Likewise, a district with a high overall number of
immigration cases may possess the resources to manage that caseload
9
Reflecting this variety, a report of the U.S. Sentencing
Commission stated that, in addition to the illegal reentry fast-
track programs noted above, the districts of Arizona, Southern
California, New Mexico, Southern Texas and Western Texas had
approved fast-track programs for transportation and harboring
cases; Arizona had a fast-track program specifically for alien baby
and/or child smuggling, and Northern Georgia and Southern Florida
had fast-track programs for fraudulent immigration document cases.
See United States Sentencing Comm'n, Interim Staff Report on
Immigration Reform and the Federal Sentencing Guidelines 30 (2006),
available at http://www.ussc.gov/publicat/imigration_06.pdf
(hereinafter "Interim Report").
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without incident, or it may determine that, though stretched, it
would rather continue to employ tougher sentences than apply for a
fast-track program.10 In addition, Andújar's statistics do not
account for sudden influxes of immigration cases. The government
notes that, while Nebraska is not a border state, it faced a sudden
increase in its immigrant population over the relatively short
period between 2000 and 2006.11 The government thus argues that if
Andújar's statistics were adjusted to account for these fine-
grained distinctions between districts, the seeming anomalies he
10
An article in the Deseret News, a Salt Lake City newspaper,
quoted Melodie Rydalch, a spokeswoman for the U.S. Attorney's
Office for Utah, explaining the denial of that district's fast-
track application: "Basically we are a victim of our own success.
. . . We have made immigration cases a priority and have done so
many immigration cases, very close to the top in the nation for
non-border states, that we can't demonstrate to them that we can't
handle what our district goals are." Angie Welling, Sentences
Worry Judge, Deseret News (May 23, 2005), available at
http://findarticles.com/p/articles/mi_qn4188/is_20050523/ai_n1463
8884.
11
The Attorney General reviews fast-track program applications
for renewal every two years, although the first set of authorized
districts in 2003 were initially forced to renew their applications
by October 2004. See October 29, 2004 Memorandum from James B.
Comey, Deputy Att'y Gen., to U.S. Attorneys on Authorization of
Early Disposition Programs 45 (2004), available at
http://sentencing.typepad.com/sentencing_law_and_policy/files/610
05_govt_opposition_to_sg_variance_due_to_fasttrack.pdf (hereinafter
"Comey Memorandum"). Thus, it is possible that fast-track programs
responding to temporary increases in the incidence of particular
types of immigration cases will also be temporary. See Schendel
Norris, supra, at 758 (noting that all of the fast-track programs
approved in 2003 to address illegal reentry were renewed in 2004
and 2006).
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relies on in labeling interdistrict disparities "unwarranted" would
likely disappear.
We find the government's arguments compelling. The text
of the Feeney Amendment requires that fast-track programs be
established to address "extraordinary resource constraints, not
typical of most districts, associated with the disproportionately
high incidence of illegal reentry or other specific offenses within
a particular district. . . ." 149 Cong. Rec. at H2420 (daily ed.
Mar. 27, 2003). Although Andújar argues otherwise, such judgments
regarding resource allocation can rarely be reduced to a single
variable or calculation. If they could, Congress would have little
reason to delegate such decisions to an executive agency, such as
the Attorney General's Office. As a product of such delegation,
the Attorney General's decisions regarding questions of
implementation and resource allocation deserve significant
deference by courts, especially when they address the enforcement
of the nation's criminal laws. See, e.g., United States v.
Armstrong, 517 U.S. 456, 464 (1996). We therefore decline to
second-guess the Attorney General's methods for determining which
districts warrant fast-track programs.
D. Charge-Bargaining Programs
Andújar raises two additional fast-track claims, each
challenging the use of charge-bargaining programs to obtain
comparable sentence and efficiency results. Rather than relying on
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government initiated downward sentence departures, several
districts engage in charge-bargaining practices, which allow U.S.
Attorneys to reduce the charges filed against an illegal reentry
defendant in return for a waiver of certain procedural rights. In
the Southern District of California, where the first charge-
bargaining program was established in the mid-1990s, the district's
U.S. Attorneys could charge an illegal reentry defendant with one
count under 8 U.S.C. § 1326(a), which carries a two-year maximum
sentence, instead of one count under § 1326(b), which at the time
carried a maximum penalty of five or fifteen years, depending on
the defendant's criminal history. Other districts have adopted
similar charge-based schemes.
First, Andújar asserts that these charge-bargaining
programs were not expressly authorized by Congress and, similarly,
operate outside the intent of Congress. As a result, Andújar
argues the disparities resulting from such programs are
unwarranted. Second, Andújar argues that these charge-bargaining
programs, as implemented, have produced sentence reductions greater
than those intended by Congress and the Attorney General. Such
disparities, therefore, have not been approved by Congress and
remain "unwarranted" under § 3553(a)(6). We address these
arguments in turn.
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1. Facial Challenge
In pursuing his facial challenge, Andújar relies on the
text of the PROTECT Act and the legislative history highlighting
Congressional intent, neither of which, he claims, authorized the
use of charge-bargaining methods to obtain the specific, limited
departures Congress authorized. Essentially, he argues that the
failure of Congress to include such programs in the text of the
statute implies that such programs are per se contrary to
Congressional intent.
The PROTECT Act did not explicitly address the issue of
charge-bargaining. The decision whether to charge a defendant and,
if so, what crime(s) to charge, traditionally resides with the
Attorney General and the individual prosecutor. See United States
v. LaBonte, 520 U.S. 751, 762 (1997) ("[T]he discretion a
prosecutor exercises when he decides what, if any, charges to bring
against a criminal suspect[ ] . . . is an integral feature of the
criminal justice system, and is appropriate, so long as it is not
based upon improper factors."); Bordenkircher v. Hayes, 434 U.S.
357, 364 (1978) ("[T]he decision whether or not to prosecute, and
what charge to file or bring before a grand jury, generally rests
entirely in [the prosecutor's] discretion."); see also United
States v. Rodriguez, 162 F.3d 135, 151 (1st Cir. 1998). As a
result, Congress and the courts play a minimal role in regulating
such charging decisions, despite their inevitable impact on
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sentencing. Wayte v. United States, 470 U.S. 598, 607 (1985)
("[The prosecutor's] broad discretion rests largely on the
recognition that the decision to prosecute is particularly
ill-suited to judicial review."); United States v. Smith, 178 F.3d
22, 26 (1st Cir. 1999) ("[W]e note that 'the exercise of
prosecutorial discretion, at the very core of the executive
function, has long been held presumptively unreviewable.'" (quoting
In re Sealed Case, 131 F.3d 208, 214 (D.C. Cir. 1997))). The
PROTECT Act's silence on this issue, therefore, is not evidence of
Congress's intent to preclude such charge-bargaining programs. Cf.
Martínez-Flores, 428 F.3d at 28 (noting that even if the Attorney
General had not authorized fast-track programs under the PROTECT
ACT, "prosecutors still would have been free to achieve the same
outcomes via the bargaining process").
Further, although the PROTECT Act does not expressly
address charge-bargaining programs, there is contemporaneous
documentation which indicates that both Congress and the Attorney
General were aware of several fast-track charge-bargaining programs
and approved of them. The House Report on the Feeney Amendment
recognized that several districts had already instituted such
programs years earlier. See 149 Cong. Rec. at H2421 (daily ed.
Mar. 27, 2003). These pre-existing programs relied on charge-
bargaining measures. See Schendel Norris, supra, at 750. In his
2003 memo to the United States Attorneys outlining the principles
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for implementing a fast-track program, Attorney General John
Ashcroft specifically referenced "charge-bargaining" fast-track
programs, noting that, if established, they should also provide for
sentencing reductions commensurate with the downward departure
system discussed in the memo and the PROTECT Act itself. Ashcroft
Memorandum, supra, at *3. Finally, in 2004, Deputy Attorney
General James Comey distributed a memo re-authorizing sixteen
existing fast-track programs, including several that used charge-
bargaining practices, and confirming the Attorney General's policy
that required districts relying on charge-bargaining practices to
obtain the approval of the Attorney General prior to
implementation. Comey Memorandum, supra, at 1. The inclusion of
this confirmatory language by Deputy Comey suggests that the
Attorney General believed, notwithstanding the text of the PROTECT
Act, that such schemes were within the province of the executive
branch and unaffected by the statute. That many charge-bargaining
programs predated the PROTECT Act, and were subsequently authorized
by the Attorney General after the act's passage, further supports
the proposition that charge-bargaining systems are not at odds with
Congress's directives. See Interim Report, supra, at 31 (noting
that some fast-track programs involve charge-bargaining to restrict
the defendant's maximum statutory penalty).
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2. As-Applied Challenge
Finally, Andújar argues that even if charge-bargaining
programs are not per se contrary to Congressional intent, many such
programs are currently operated outside the bounds of the PROTECT
Act and U.S.S.G. § 5K3.1, therefore creating unwarranted
disparities for purposes of § 3553(a)(6). Specifically, he argues
that some programs are at odds with Congressional intent because
they provide more than a four-level departure from the Guidelines.
To support this claim, he relies on two items. First, Andújar
cites the decision in a single district court case, United States
v. Medrano-Duran, which examined how charge-bargaining fast-track
systems currently operate in many districts. 386 F. Supp. 2d at
946 ("The fast track districts that rely on charge-bargaining use
methodologies that permit far greater sentence reductions tha[n]
contemplated by Congress' directive in the PROTECT Act and the
Sentencing Commission's policy statement in § 5K3.1."). Next, he
offers the Interim Staff Report on Immigration Reform and the
Federal Sentencing Guidelines, which notes that some fast-track
programs charge an illegal reentry defendant with two counts of 8
U.S.C. § 1325 rather than a single count under 8 U.S.C. § 1326,
which carries a greater penalty.12 Interim Report, supra, at 31.
12
See supra, note 2. 8 U.S.C. § 1325 prohibits improper entry
and § 1326 prohibits illegal reentry. Under a program that charges
a defendant with two counts of § 1325, the first count carries a
statutory maximum penalty of six months, and the second count
carries a statutory maximum penalty of 24 months. The combined 30
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A term of 30 months' imprisonment under § 1325 represents an eight-
level departure for a defendant who otherwise shares the same
criminal history and sentencing characteristics as Andújar. See
U.S.S.G. ch. 5, pt. A (sentencing table). Andújar thus argues that
disparities resulting from these unauthorized charge-bargaining
schemes are clearly "unwarranted."
In the face of Andújar's evidence on this point, the
district court declined to find that charge-bargaining programs in
fast-track districts had produced sentences outside the parameters
set by Congress. We agree with the district court's decision.
When a party contests a sentence based on the failure of the court
to consider a specific factor, that party must provide the factual
basis for its argument. Jiménez-Beltre, 440 F.3d at 519. This
obligation is most significant when the party has raised an as-
applied challenge, which necessarily requires a concrete and
developed factual record for the court to consider. See Sam & Ali,
Inc. v. Ohio Dept. of Liquor Control, 158 F.3d 397, 399–400 (6th
Cir. 1998) (declining consideration of an as-applied, statutory
challenge because the plaintiffs had failed to develop a sufficient
factual record); McGuire v. Reilly, 260 F.3d 36, 47-48 (1st Cir.
2001) (noting, in the context of the First Amendment, that
plaintiffs remain free to challenge the Act, as applied, in a
month maximum sentence is substantially lower than a violation of
§ 1326(b), which carries a maximum sentence of either 10 or 20
years, depending on the defendant's criminal history.
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concrete factual setting) (emphasis added); Carey v. Wolnitzek, No.
3:06-36-KKC, slip op. at 8 (E.D. Ky. Sept. 17, 2007) (rejecting an
as-applied challenge because the factual basis of plaintiff's claim
remained speculative).
As the government notes, Andújar's sole evidence that
these programs operate outside the bounds of the PROTECT Act was a
government submission in another case in another district, stating
that, by their terms, charge-bargaining fast-track programs can
lead to a sentence reduction greater than the four levels
specifically authorized by Congress in the PROTECT Act. Andújar
provided no evidence that charge-bargaining has, in fact, resulted
in any sentence reduction equivalent to a five level departure (or
more) in any particular case. Moreover, the government notes that
the Ashcroft Memorandum specifically provides that charge-
bargaining fast-track programs "should provide for sentencing
reductions that are commensurate with" the four-level reduction
authorized under U.S.S.G. §5K3.1. Ashcroft Memorandum, supra, at
*3. Without evidence that prosecutors in individual districts
have deviated from this requirement, Andújar's argument that
charge-bargaining fast-track programs result in unwarranted
sentence disparities must fail, and we need not address whether
such outcomes would constitute unwarranted disparities under
§ 3553(a)(6).
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Moreover, even if we agreed with the premise of Andújar's
argument – that charge-bargaining fast-track programs fall outside
the parameters of the PROTECT Act – we fail to see how his argument
justifies the remedy he seeks. That is, we do not believe that the
appropriate response to unauthorized prosecutorial action in some
fast-track districts is to require judges in other districts to
consider ad hoc downward variances that would equalize sentences at
the level resulting from the unauthorized actions. See Pérez-Pena,
453 F.3d at 243, n.3 ("[A]llowing sentencing courts to determine
whether they should sentence non-fast-track defendants as if they
had been fast-tracked would produce 'unwarranted sentence
disparities' between similarly situated non-fast-track defendants,
some of whom would benefit from the existence of others' fast-track
deals and some of whom would not."). To find otherwise would be to
allow judges to ignore the decisions of United States Attorneys and
the Attorney General to not have such a program in a specific
district and to disregard Congressional intent on the proper scope
of such programs. See Albert Llosas Barrueco, Fast-Tracking United
States v. Booker: Why Judges Should Not Fix Fast Track Disparities,
6 Conn. Pub. Int. L.J. 65, 105 (2006) ("[J]udges are ill-advised to
impose Fast Track programs by judicial mandate. Such decisions have
the inescapable result of invading the province of the prosecutor
by delivering the discretion to charge and establish enforcement
policies into the hands of judges."). If Congress agrees with
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Andújar's criticism of the fast-track regime as applied, it is in
the best position to reshape the system.
E. Equal Protection
Andújar also argues that fast-track sentence disparities
violate his constitutional right to equal protection under the
Fifth and Fourteenth Amendments. While our review of
constitutional claims is generally plenary, United States v.
Proctor, 166 F.3d 396, 401 (1st Cir. 1999), we review only for
plain error because Andújar raises this argument for the first time
on appeal. See United States v. Olano, 507 U.S. 725, 732-33
(1993).
Andújar cites no case law in support of his equal
protection claim; any error, therefore, could not qualify as
"plain." See Id. at 734. Moreover, he has failed to show any
constitutional deficiency. Because his challenge does not
implicate a suspect class, Andújar must show that there is no
rational basis for the legislated distinction – in this case
between the treatment of illegal reentry defendants in fast-track
districts and of similar defendants in Massachusetts. Naeem v.
Gonzales, 469 F.3d 33, 38 (1st Cir. 2006) (citing Heller v. Doe,
509 U.S. 312, 320 (1993)). Where, as here, Congress has made its
purpose explicit, Andújar must show the statutory purpose has been
implemented in a manner "so attenuated as to render the distinction
arbitrary or irrational." City of Cleburne v. Cleburne Living
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Ctr., 473 U.S. 432, 446 (1985). Andújar has failed to meet these
burdens.
Indeed, we have already denied a claim presenting a
facial equal protection attack on fast-track programs. Meléndez-
Torres, 420 F.3d at 52-53 (concluding that the incidence of fast-
track programs in some states and not others could rationally be
related to different incidences of crime across districts,
different prosecutorial needs, or a determination that the absence
of such a program increases deterrence). We believe that these
justifications apply with equal strength in this case. Further,
for the same reasons we rejected Andújar's as-applied challenge to
fast-track disparities, we find that such programs have not been
implemented in a manner that is "so attenuated as to render the
[Congressionally established] distinction arbitrary or irrational."
Cleburne, 473 U.S. at 446. We conclude, therefore, that fast-track
programs, as applied, are rationally related to the Congressional
goal of protecting prosecutorial resources.
III.
We may quickly dispatch Andújar's claim that Almendarez-
Torres is no longer persuasive precedent. We rejected a similar
argument in United States v. Jiménez-Beltre, 440 at 520 ("Whatever
the continuing validity of Almendarez-Torres, we have previously
held that we are bound to follow it until it is expressly
overruled.") (citation omitted), and have since repeated that
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conclusion many times. See, e.g., United States v. Shoup, 476 F.3d
38, 46 n.5 (1st Cir. 2007); United States v. Coplin, 463 F.3d 96,
105 (1st Cir. 2006); United States v. Peralta, 457 F.3d 169, 172
(1st Cir. 2006). We find nothing new in Andújar's argument that
requires us to reopen this issue.
Affirmed.
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