Interesting discussion of fast-track disparities

Amidst the steady drumbeat of rejected habeas petitions based on Blakely or Booker, I found an interesting recent district court decision discussing sentencing disparities in immigration cases.  In US v. Duran, No. 04 CR. 1086, 2005 WL 3116173 (SDNY Nov. 21, 2005), Judge Victor Marrero explores various aspects of the “significant legal and sentencing policy debate [that] exists among district courts throughout the country” concerning immigration offense sentencing, especially because of the development of fast-track programs in some districts. 

Here are some notable passages from the notable discussion of these issues in Duran:

As a result of differences in interpretation of the Sentencing Guidelines in light of United States v. Booker, 125 S.Ct. 738 (2005), and 18 U.S.C. § 3553(a), substantial variations in sentences for illegal reentry cases have been produced in different districts. The effects will be most pronounced, and potentially even pernicious, in districts where judges of the same court split conceptually into different camps and impose sentences for this offense depending upon whether they accept or reject the double-counting and fast-track arguments as legitimate grounds to guide their sentencing decisions. By dint of that discord, a form of wheel-of-fortune effect may be emerging in some districts, in consequence of which the length of particular illegal reentry offenders’ sentences will be determined, or even predetermined, by whether or not the judge randomly assigned the case conceptually recognizes the double-counting and fast-track considerations as decisive grounds for modifying the sentence produced by application of the Guidelines….

[T]he disparities between sentencing in fast-track and non-fast-track districts arise from prosecutorial decisions similar to an individual prosecutor’s decisions to charge, to engage in plea-bargaining or offer cooperation agreements, or to a particular United States Attorney’s Office’s policies regarding charging or plea bargaining. Of necessity, a prosecutor’s choice to charge certain offenders or offenses more severely than others or to enter into plea agreements with some defendants but not others involved in the same crime is bound to engender significant variations in the sentences that result in the same case or type of case, or from one district to another where different prosecutorial policies or social conditions may prevail.  But such inevitable, indeed probably common, sentencing disparities as regards other cases could not serve to warrant determination by a court in one district to impose sentences resting solely or even predominantly on the existence of that policy in another court or district.  To this degree this Court regards the illegal reentry cases not appreciably different from others that may raise similar prosecutorial policy issues, even if not with the same quantitative or geographic scope or level of formality that governs the fast-track program.  The Court also finds persuasive the view of the several judges in this district who have held that in and of itself sentencing disparities that arise as a result of the existence of fast-track programs in other districts do not warrant a departure from the guidelines.