UNITED STATES v. GALICIA CARDENAS (2006)

We consolidate these two cases for decision because they raise the same issue.   In the first case, Alejandro Galicia-Cardenas was charged in a single-count indictment alleging that he entered the United States without permission after having previously been deported following a 1994 conviction for an aggravated felony-second degree robbery in Los Angeles.   Galicia-Cardenas entered a guilty plea to the charge in the Eastern District of Wisconsin.   Vega-Lopez was charged with the same offense, but his aggravated felony was a 1997 conviction for possession of marijuana for sale, ironically (we assume) also in Los Angeles.   He entered a guilty plea to the charge in the Western District of Wisconsin.   Vega-Lopez appeals his sentence.   The government appeals the sentence Galicia-Cardenas received.

Both judges in these post-Booker cases appropriately consulted the guidelines and treated them as advisory.   Vega-Lopez's properly calculated guideline range was 27 to 33 months.   The court imposed a sentence of 30 months.   Galicia-Cardenas, who had a prior conviction for a crime of violence, fared worse under the guidelines as his properly calculated advisory range was 41 to 51 months.   His sentence, however, was 27 months, 3 months less than the term Vega-Lopez received.

In sentencing Mr. Galicia-Cardenas, the judge concluded that because the Eastern District of Wisconsin has not implemented a fast-track program to prosecute illegal reentry cases, the use of such programs in other districts created an unwarranted sentencing disparity between Galicia-Cardenas and other immigration offenders.   As a result, the judge adjusted Galicia-Cardenas's sentence downward the equivalent of 4 levels and arrived at the 27-month sentence.   In sentencing Mr. Vega-Lopez, the district court declined to bestow a similar benefit on him because a fast-track program is not used in Wisconsin.

In 1994, the Southern District of California-a district which saw more than 600,000 arrests annually at its border with Mexico in the early 1990s-adopted an early disposition or “fast-track” program.   See Alan D. Bersin, Reinventing Immigration Law Enforcement in the Southern District of California, 8 Fed. Sentencing Rep. 254 (1996).   Soon, other “border” states followed suit with fast-track programs of their own.

In 2003, Congress formally approved the use of fast-track programs.   As part of the “Prosecutorial Remedies & Other Tools to End the Exploitation of Children Today Act” (the “PROTECT Act”), Congress granted the Attorney General the sole authority to create and implement fast-track programs.   See Pub.L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003).

Although the general goal of the PROTECT Act was to reduce downward departures, Congress directed the Sentencing Commission to promulgate a policy statement authorizing a departure of not more than 4 levels when a defendant resolved his case through a fast-track program authorized by the Attorney General.

In a recent decision, United States v. Martinez-Martinez, 442 F.3d 539 (7th Cir.2006), we rejected a claim that the defendant's 41-month sentence (the low end of the advisory guideline range) was unreasonable because Indiana does not have a fast-track program.   We went on to observe, “Given Congress' explicit recognition that fast-track procedures would cause discrepancies, we cannot say that a sentence is unreasonable simply because it was imposed in a district that does not employ an early disposition program.”   By the same logic, we cannot say that a sentence imposed after a downward departure is by itself reasonable because a district does not have a fast-track program.   Because Martinez-Martinez controls these cases, we must affirm the sentence imposed in Vega-Lopez's case (he raises no other arguments suggesting that his sentence is unreasonable) and vacate the sentence Mr. Galicia-Cardenas received.   Mr. Galicia-Cardenas must be resentenced without a credit for Wisconsin's lack of a fast-track program.   Whether he deserves a sentence below the advisory guideline range based on other factors is left to the discretion of the district court.

It Is So Ordered.

PER CURIAM.