Tenth Circuit: Immigration Sentencing in Non-Fast-Track District Can Vary from Applicable Guideline Based on Sentence Disparities; Defendant Bears Burden of Showing Entitlement to Variance

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lopez-Macias on Monday, November 7, 2011.

The Tenth Circuit affirmed the district court’s decision and sentence. Petitioner, a citizen of Mexico, was arrested following a routine traffic stop on suspicion of marijuana trafficking. “Immigration and Customs Enforcement officials interviewed [Petitioner[ while he was in Colorado custody and determined his illegal status. A federal grand jury subsequently indicted Defendant in the District of Colorado for illegal reentry into the United States after deportation following an aggravated felony conviction." Petitioner appeals the sentence imposed by the district court.

The Tenth Circuit was presented with with two questions related to the presence of fast-track programs in some federal districts, but not others. "In the 1990s, federal prosecutors handling large numbers of illegal re-entry and other immigration offenses developed early disposition or 'fast-track' programs in states along the United States border with Mexico. In 2003, Congress endorsed such programs, apparently for border districts and elsewhere, in a broadly-worded provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act ('PROTECT Act'). . . . The Sentencing Commission then promulgated U.S.S.G. § 5K3.1: '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] and the United States Attorney for the district in which the court resides.’”

The first question the Court considers is “whether a sentencing court in a non-fast-track district has the discretion to consider sentence disparities caused by the existence of fast-track programs in other districts, and, based thereon, vary from the applicable guideline range for a defendant charged with an immigration offense.” If so, a second issue is “whether the apparently nebulous eligibility requirements for fast-track programs relieve a defendant charged with an immigration offense in a non-fast-track district of the burden of showing entitlement, at least in some sense, to sentencing consistent with a fast-track program.” The Court held that where the circumstances warrant, a district court in a non-fast-track district has the discretion to vary from a defendant’s applicable guideline range based on fast-track sentence disparities. But a defendant “bears the initial burden of showing entitlement, in some sense, to a variance based on fast-track sentence disparities.” Given the facts presented in this case, the Court declined to decide the precise extent of a defendant’s burden. However, the Court did provide that a “‘generalized argument’ in which a defendant simply points to the disparity created by fast-track programs ‘is alone not sufficient to justify such a variance.’”

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