Tuesday, December 27, 2005

Nothing was Stirring, Not Even a Mouse

As we come back from the holidays and continue our celebration until the new year, it is good to know that all is quiet at the appellate level for the Sixth Circuit. No new opinions have been released today. The most recently released criminal case will be of benefit to all defense lawyers who wish to argue sentencing disparities as a Booker factor for sentencing. It will also be insightful for those who represent illegal aliens and wish to argue sentencing disparity created by the lack of fast-track sentencing procedures in our districts.
In United States v. Juan Miguel Hernandez-Cervantes, No. 05-5414 (6th Cir. Dec. 23, 2005) (unpublished opinion), the Sixth Circuit affirmed the sentence imposed after conducting a Booker reasonableness review. Hernandez-Cervantes had argued that his sentence should be reduced to assimilate like sentences imposed in jurisdictions that had adopted fast-track sentencing procedures. It also rejected a claim that the refusal to lower the sentence violated the separation of powers by refusing to fast-track a sentence except on the Attorney General’s recommendation.
Of interest in the case is that the Sixth Circuit acknowledges that a disparity indeed occurs by the use of these fast track programs. The disheartening news is that the Sixth Circuit, albeit in an unpublished opinion, ultimately concludes the PROTECT Act is dispositive of the fast-tracking sentence disparity. Though not addressing the specific issue of whether fast-track disparity is an acceptable basis for sentence disparity, see fn.1, it recognized that sentencing disparity in general is among the § 3553(a) factors to be considered post-Booker. Noting that the defendant had presented no other arguments in support of a lesser sentence, the district court declined to deviate from the guidelines explaining that the defendant had committed several other serious crimes.
What this case should serve to remind us defense lawyers is to combine our § 3553(a) factors to achieve our sentencing goals. Don’t just put one egg in your basket. If you do, the government (or worse yet), the judge, may put other eggs in that basket that you don’t want in there. We need to put lots of OUR eggs in that basket, and if you run out of room, fill up several more baskets. You never know if the judge might pick up one or all of your baskets. At a minimum, the judge will have to think more about what kind of eggs he likes.