Lowering Sentences for Illegal Immigrants: Why Judges Should Have Discretion to Vary from the Guidelines Based on Fast-Track Sentencing Disparities

Abstract

“Fast-track” programs are selectively implemented programs that give illegal reentry defendants a reduced sentence in exchange for a quick guilty plea and broad waiver of procedural rights. Typically found in Southwest border districts overburdened with illegal immigrants, these programs cause grave sentencing disparities because a defendant in a fast-track district will receive a lower sentence than a defendant in a non-fast-track district based simply on the geography of arrest. Circuits are divided as to whether a sentencing court in non-fast-track district is permitted to give a defendant a lower sentence because of this disparity. This Note suggests that the emerging split is the result of a collision between an immigration policy that focuses on prosecutions and developments in federal sentencing law, including United States v. Booker and Kimbrough v. United States. This Note argues that, under advisory Guidelines, district judges should have the discretion to grant lower sentences to avoid the disparity created by fast-track programs because the fast-track sentencing scheme falls short of a binding legislative mandate. Interpretation of Kimbrough provides the essential legal framework allowing a district court to vary from the Sentencing Guidelines. The legal interpretation of Kimbrough and policy considerations of transparency, uniformity, and 18 U.S.C. § 3553(a) resolve the current split.