Eleventh Circuit panel splits over whether Kimbrough now allows consideration of fast-track disparity

A split decision today from the Eleventh Circuit in US v. Vega-Castillo, No. 07-12141 (11th Cir. Aug. 19, 2008) (available here), spotlights an important post-Kimbrough issue that arguably has already created a circuit split.  The first two paragraphs of the majority’s per curiam opinion sets up the issue effectively:

Appellant Victor Gonzalo Vega-Castillo appeals his 70-month sentence following a plea of guilty to reentering the United States illegally after having been deported or removed, in violation of 8 U.S.C. § 1326(a)(1), (b)(2).  Before the district court imposed his sentence, Vega-Castillo asked the district court to vary downward from his applicable sentencing range of 70 to 87 months imprisonment based on the fact that the district in which he was indicted on the present charge — the Northern District of Georgia — did not employ an early disposition program, and this resulted in an unwarranted sentencing disparity that should be considered pursuant to 18 U.S.C. § 3553(a)(6).

On appeal, Vega-Castillo requests that this court remand his case to the district court for resentencing and order the district court “to consider the disparity caused by nationally disparate ‘fast-track’ sentencing when considering the factors in 18 U.S.C. § 3553(a).” Vega-Castillo recognizes that we previously held in United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) that “section 3553(a)(6) does not require the district court to depart based on the availability of the [fast-track] departure in only some districts,” but argues that this decision has been overruled by Kimbrough v. United States, 128 S. Ct. 558 (2007).

The issue of fast-track disparity and post-Booker analysis is, in my mind, even harder than crack/powder disparity issues.  I am not surprised that this issue has split this Eleventh Circuit panel, though I am surprised that only a few circuits have weighed in on this issue in the nine months since Kimbrough came down.  Even though I suspect the Supreme Court is now very tired of post-Booker debates, the Justices may have to take up fast-track disparity issues sooner or later.