District Court's Refusal to Go Below Guidelines Affirmed

U.S. v. Morales-Chaires, --- F.3d ----, 2005 WL 3307395(10th Cir. Dec 07, 2005)

For sentencing on a re-entry aggravated felony, D moved for “downward departure” (really a lower sentence under §3553(a) factors) from the advisory guideline sentence on multiple grounds, including sentencing disparity. His only issue on appeal was the district court’s legal rejection of the disparity ground: D argued that he did not get “fast track” consideration (fast track is not available in Dist. of Colo.), creating a disparity. The 10th (Anderson) indulged in much discussion regarding fast track programs, only to hold that it did not need to determine if that was an appropriate §3553 reason to set a lower sentence because sentencing disparity is only one of many §3553 factors the court must consider, and the sentencing court considered all of them. (It did not help that the D had a pretty extensive criminal history).