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Eighth Circuit Permits Downward Variance Absent Fast Track Program

By Robyn Hagan Cain on October 19, 2011 | Last updated on March 21, 2019

Fast Track programs, which offer shorter sentences in exchange for expedited plea and sentencing procedures, became popular in the ’90s when U.S. Attorneys began implementing the programs to help manage an exploding volume of immigration-related cases.

Eastern Missouri, however, does not have a Fast Track program, which raises an interesting question: Should defendants in regions that lack Fast Track programs automatically receive harsher sentences than their law-breaking counterparts in Fast Track regions?

The Eighth Circuit Court of Appeals, in a change of heart, ruled this week that courts should not categorically deny a defendant a downward variance based on the unavailability of Fast Track programs.

So how did the court reach this conclusion?

A Missouri police officer stopped Baltazar Jimenez-Perez for traffic violations. The officer learned that Jimenez-Perez was in the country illegally and turned him over to Immigration and Customs Enforcement (ICE). Authorities later learned that the federal government had previously removed Jimenez-Perez from the country two years earlier.

Jimenez-Perez pleaded guilty to a one-count indictment charging him with illegal reentry. Before sentencing, Jimenez-Perez filed a sentencing memorandum arguing that he deserved a downward variance because a Sentencing Guidelines punishment would result in an unwarranted sentencing disparity.

Though Eastern Missouri, where Jimenez-Perez was arrested, did not have a Fast Track program, he argued that similarly situated defendants in other jurisdictions could avail themselves of Fast Track programs, and serve less time for the same or similar offenses.

The district court, uncomfortable granting Jimenez-Perez's request absent guidance from the Eighth Circuit Court of Appeals, denied the request.

Noting that the Supreme Court's Kimbrough v. United States holding undermined Eighth Circuit precedent on sentencing issues, the court clarified that the absence of a Fast Track program, and the resulting difference in the Sentencing Guidelines range, should not be categorically excluded as a sentencing consideration.

If you have a client who could benefit from lighter sentencing under a Fast Track program, and your region does not offer a Fast Track program, try using this new Eighth Circuit precedent to request a downward variance.

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