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U.S. v. DURAN

November 21, 2005.

UNITED STATES OF AMERICA,
v.
ESTEBAN DURAN, Defendant.



The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

The defendant, Esteban Duran ("Duran"), entered a guilty plea before this Court on July 15, 2005 to a one count indictment charging illegal reentry of the United States after deportation subsequent to a conviction for the commission of an aggravated felony in violation of 8 U.S.C. § 1326. Duran and the Government subsequently submitted letters to the Court detailing their respective positions regarding Duran's sentencing. Duran argues that the Court should impose a sentence below the Guidelines' sentencing range for two reasons: that the Guidelines allegedly double-count Duran's criminal history and that a Guidelines sentence would result in an unwarranted sentencing disparity. The Court has reviewed the parties' submissions and finds that they raise important policy and legal questions that have not yet been fully resolved in this District. The Court accordingly addresses these issues below.

I. BACKGROUND

  As noted above, Duran entered a guilty to a one count indictment charging illegal reentry into the United States after deportation subsequent to a conviction for the commission of an aggravated felony. According to the Presentence Investigation Report, Duran was deported following two convictions for criminal sale of a controlled substance and two convictions for attempted criminal possession and attempted criminal sale of a controlled substance. The Presentence Investigation Report also states that Duran was discovered to be in the United States illegally when he was arrested on August 14, 2004 for criminal sale of a controlled substance.

  Under the Sentencing Guidelines, Duran's offense level amounts to 21 and his criminal history falls into Category VI. The Guidelines recommend a range of imprisonment for this offense level and criminal history category of 77 to 96 months. Duran argues that a Guidelines sentence is unreasonable in this case on two grounds: first, that the Guidelines allegedly double-count Duran's criminal history by factoring past criminal activity into the calculation of both his offense level and his criminal history category, and second that a Guidelines sentence would result in an unwarranted sentencing disparity because certain defendants who plead guilty to illegal reentry in some other districts have the opportunity to participate in fast-track programs which result in substantially shorter sentences.

  The Court is mindful that a significant legal and sentencing policy debate exists among district courts throughout the country with regard to these issues, specifically as they relate to illegal reentry cases. See, e.g., United States v. Perez-Chavez, 2005 U.S. Dist. LEXIS 9252, *8-*30 (D. Utah 2005) (finding downward departure from Guidelines sentencing range was not warranted on the basis of sentencing disparities caused by the existence of fast-track programs in some, but not all, districts); United States v. Galvez-Barrios, 355 F. Supp. 2d 958, 961-65 (E.D. Wis. 2005) (finding downward departure from Guidelines' sentence range was warranted because Guidelines inappropriately double-counted defendant's prior offenses and because the existence of fast-track programs in other districts created unwarranted sentencing disparities); United States v. Delgado, 6:05-cr-30-Orl-31KRS, at 2-4 (M.D. Fla. June 7, 2005) (finding downward departure warranted based on sentencing disparity caused by the existence of fast-track programs in some, but not all, districts).

  That division has manifested among various judges in this district. See, e.g., Transcript of Sentencing at 8:3-9:12, United States v. Justo, 04 CR. 797 (JSR) (S.D.N.Y. April 14, 2005) ("Justo Sent. Tr."); Transcript of Sentencing at 12:10-16:9, United States v. Perez-Gallegos, 04 CR. 1274 (GEL) (S.D.N.Y. July 5, 2005) ("Perez-Gallegos Sent. Tr."); Transcript of Sentencing at 25:10-27:3, United States v. Mejia, 04 CR. 1082 (JFK) (S.D.N.Y. July 14, 2005) ("Mejia Sent. Tr.") (rejecting arguments that downward departure or non-Guidelines sentence is warranted based on either double-counting of defendant's prior offenses under the Guidelines or sentencing disparities resulting from the existence of fast-track programs in some districts but not in others). But see Transcript of Sentencing at 4:1-8:14, United States v. Krukowski, 04 CR. 1308 (LAK) (S.D.N.Y. July 25, 2005) (finding that disparities caused by the existence of fast-track programs are "unwarranted," but nonetheless imposing a sentence within the Guidelines' range because such sentence was not substantially greater than what defendant would have qualified for in a fast-track program district); Transcript of Sentencing at 13:24-18:5, United States v. Gonzales-Martes, 04 CR. 1081 (SAS) (S.D.N.Y. 2005) (rejecting argument that Guidelines inappropriately double-count defendant's prior offenses but imposing non-Guidelines sentence based, in part, on concerns about sentencing disparities caused by the existence of fact-track programs in some districts and not in others).

  Because the numerous issues involved in this debate are still the subject of sharp division and remain in flux pending guidance from the Circuit Courts, this Court deems it more prudent not to render a firm pronouncement or adopt a definitive stance on the matter in this case. The Court does, however, offer some observations that may be pertinent to the debate, and to the sentencings that may be imposed in the course of it.

  A. DOUBLE-COUNTING OF PRIOR OFFENSES

  In response to Duran's argument that the Guidelines double-count his prior offenses, the Court notes that prior offenses are appropriately factored into both the offense level and the criminal history category because prior offenses play a separate and distinct role in each category. See United States v. Campbell, 967 F.2d 20, 25 (2d Cir. 1992). The offense level "represents a judgment as to the wrongfulness of the particular act." Id. The criminal history category principally estimates the "likelihood of recidivism." Id. (citing U.S. Sentencing Guidelines Manual, Chapter 4, Introductory Commentary (2004)). In Campbell, the Second Circuit rejected a challenge to a judge's use of a prior conviction to calculate both offense level and criminal history category in an illegal reentry case, holding that while counting a prior offense in the calculation of both criminal history and offense level "may be double counting in a literal sense, double counting is legitimate where a single act is relevant to two dimensions of the Guidelines analysis." See 967 F.2d at 25.

  It is argued that the 16-level enhancement the Commission promulgated pursuant to Guidelines § 2L1.2 (b) (1) (A) for reentry after deportation for a prior drug trafficking felony, allegedly with little public debate, represents an arbitrary number that in many cases yields unduly harsh and apparently disproportionate sentences. See Galvez-Barrios, 355 F. Supp. 2d at 962. But that critique could be leveled just as validly as to countless other numerical indices — quantity of drugs or amounts of money involved in a crime, for example — that the Guidelines Commission and Congress employ to enhance culpability and reflect the seriousness of particular offenses, with no less random gradation, and often with equally severe results. In any event, the sentencing court's unhappiness over the process by which any particular aspect of the Guidelines was enacted is a consideration beyond the ambit of permissible sentencing reasons.

  B. SENTENCING DISPARITIES CAUSED BY THE CONCEPTUAL SPLIT AMONG JUDGES

  As a result of differences in interpretation of the Sentencing Guidelines in light of United States v. Booker, No. 04-104, 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.

  Insofar as the division exists and some courts categorically rely upon the double-counting issue and fast-track programs as grounds warranting sentences lower than the ranges produced by the Guidelines, while others just as firmly reject those considerations, the net result over time will be a tendency to build into the national sentencing scheme greater disparity in sentences in illegal reentry cases. The resulting disparities in sentences for such illegal reentry may thus be considered "unwarranted" because the disparities stem from an individual judge's conceptual stance on the underlying issue, rather than from any characteristics of the particular offender or offense. If enough courts or judges divide substantially on both sides of the debate, say evenly, the average length of sentence for the crime of illegal reentry would fall well below what the Guidelines' range would provide and at around a mid-point between the duration of sentences imposed by the courts that recognize double-counting and fast-track and those that do not. However, until the double-counting and fast-track matters are resolved by higher courts, disparities in sentencing will continue. Arguably, the buildup of those disparities may eventually provide some ...


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