Early disposition programs—commonly referred to as “fasttrack” sentencing programs—allow a federal prosecutor to offer a below-Guidelines sentence in exchange for a defendant’s prompt guilty plea and waiver of certain pretrial and postconviction rights. Typically, fast-track sentencing is used to quickly process an overwhelming caseload of immigration offenses. Fast-track programs received official sanction when Congress, in the 2003 PROTECT Act, directed the Sentencing Commission to authorize them. This authorization requires both the local US Attorney and the Attorney General to approve the implementation of each program.

Presently, fast-track sentencing is approved in just a fraction of judicial districts. Therefore, not all defendants are eligible for a reduced fast-track sentence, and eligibility is dependent on where the defendants are found and prosecuted. Defendants in non-fast-track districts argue that this geographic disparity implicates 18 USC § 3553(a)(6), which requires sentencing courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” These defendants argue that sentencing courts in non-fast-track districts have the discretion to grant below-Guidelines sentences to mitigate the disparity.

Prior to the Supreme Court’s decision in Kimbrough v United States, the circuit courts uniformly agreed that sentencing courts could not mitigate the fast-track disparity. In Kimbrough, the Court stressed that the Sentencing Guidelines are advisory, and that sentencing courts have broad discretion to impose a below-Guidelines sentence if it is necessary to ensure that the sentence is “sufficient, but not greater than necessary.” The Supreme Court further clarified that if Congress wants to limit this discretion, it must do so explicitly. In light of this decision, the circuits have begun to reconsider their precedent on fast-track sentencing, and a split has developed over whether courts in non-fast-track districts may impose belowGuidelines sentences to mitigate the sentence disparity. The First Circuit now holds that “sentencing courts can consider items such as fasttrack disparity” when deciding whether to grant a below-Guidelines sentence. The Third Circuit concurs. By contrast, the Fifth, Ninth, and Eleventh Circuits continue to hold that sentencing courts may not take fast-track disparities into account when considering whether to impose a below-Guidelines sentence. 

This Comment argues that the circuit courts have each erred by unduly focusing on a single sentence in Congress’s ambiguous authorization of fast-track in the PROTECT Act. The courts mistakenly ignore the larger purpose and context of that legislation through their narrow focus. A thorough examination of congressional efforts to reform sentencing is more fruitful than a limited focus on the vague authorization of fast-track. For the last thirty years, Congress has consistently prioritized two goals: promoting harsh sentences and reducing unwarranted sentencing disparities. These goals are also what drove Congress to authorize a limited form of fast-track sentencing in the PROTECT Act. This Comment argues that granting sentencing courts the discretion to mitigate the fast-track disparity is more supportive of Congress’s goals than any alternative.