By Tom McKay

            In the wake of United States v. Booker, in which the Supreme Court held that the federal sentencing guidelines are advisory, the battle over judicial discretion in sentencing has played out on a number of frontiers. Once at the forefront of this battle was the hefty difference between sentences for crack and powder cocaine offenses. In United States v. Kimbrough, the Supreme Court ruled that this disparity is a permissible factor for judges to consider when trying to impose a sentence sufficient but not greater than necessary to achieve the goals of sentencing.

            Since Kimbrough, similar issues have bounced around the courts in various contexts. One notable example relates to jurisdictions with so-called “fast-track” sentencing programs. Defendants in certain jurisdictions, usually in the context of illegal reentry cases, may obtain significantly reduced sentences if they forego pre-trial motions and waive certain rights. Defendants in jurisdictions without these fast-track programs, on the other hand, are afforded no such benefit, and receive sentences that on average exceed those of fast-track defendants. Thus, a disparity like the one at issue in Kimbrough is created.

            The question of whether district courts may consider this disparity in reducing the sentence of a non-fast-track defendant has split the circuits. While the First, Third, and Sixth Circuits take the pro-discretion position in light of Kimbrough, the Fifth, Ninth, and Eleventh Circuits disagree. These anti-discretion circuits distinguish Kimbrough as saying that judges may depart because of their disagreement with a guideline policy (like the crack/powder distinction), whereas the fast-track programs are implicit expressions of Congressional policy which judges may not disagree with in sentencing. As one might expect, there are plausible arguments supporting each side. However, on October 7th, the Seventh Circuit entered the fray with an important opinion that may weigh heavily in future courts’ consideration of this issue.

            In United States v. Reyes-Hernandez, the Seventh Circuit joined the pro-discretion side, echoing the arguments of the First, Third, and Sixth Circuits. Additionally, the court drew a crucial comparison to yet another context in which post-Kimbrough sentencing issues are at play – career offender guidelines. Just as the fast-track guidelines were the product of a Congressional directive to the Sentencing Commission, so were the career offender guidelines. Yet in the career offender case United States v. Vasquez, then-Solicitor General Kagan confessed error in response to a cert petition before the Supreme Court, stating that the Eleventh Circuit’s anti-discretion position was inconsistent with Kimbrough. The Supreme Court granted cert, vacated, and remanded as the Solicitor requested, indicating its receptiveness to the Solicitor’s position.

The reasoning that the Eleventh Circuit had relied on in Vasquez is almost identical to that used by the Fifth, Ninth and Eleventh Circuits to distinguish Kimbrough from the fast-track context. In light of this development, the circuit split over fast-track may be headed towards a resolution. The details of these arguments and their implications for judicial sentencing discretion are the subject of a forthcoming note in The American Criminal Law Review by the author of this post.