Disparity, Double-Counting Arguments Rejected in Reentry Cases

U.S. v. Martinez-Trujillo, 10th Cir. No. 05-4122 (12/20/06) - Pursuant to its trend of rigidifying the bottom end of the guidelines and loosening up the top end, the 10th holds that the disparity between the sentences of reentry defendants in non-Fast-Track districts vs. those in Fast-Track districts does not violate 18 U.S.C. § 3553(a)(6)'s prohibition against unwarranted disparity. By authorizing Fast-Track programs, Congress determined the disparities among districts were not unwarranted. The 10th rejected the defendant's argument that he should be able to take advantage of the Fast-Track program because, while his case was on appeal, Utah adopted such a program. The 10th reasoned that, unlike the defendants who would be getting Fast-Track deals, the defendant was able to exercise his right to appeal---[the fact that the 10th rendered that right worthless is beside the point].

U.S. v. Murriega-Santos, 2006 WL 3291683 (11/14/06)(unpub'd) - It is not unreasonable to use the reentry defendant's prior conviction to both increase the criminal history category and impose an 8 offense level enhancement. "It is not our province to second-guess the Sentencing Commission" [except when it might result in a higher sentence].