This case involved an “illegal re-entry” charge. “Illegal re-entry” occurs when a defendant enters the United States illegally after having been deported. In this case, Blanco was deported specifically because of a drug conviction. Blanco argued that in some jurisdictions defendants routinely get lower sentences than those called for by the sentencing guidelines. These “fast track” jurisdictions are in districts such as Texas and Southern California, where there are a large number of illegal re-entry cases and districts have to lighten their burden.
The second circuit court stated that whether a district court can impose a non-guideline sentence in response to “fast-track” disparities – is still an open question in the second circuit and is not “frivolous,” since its answer is “not a foregone conclusion.” But the court decided it could not provide an answer, because the defendant had waived his right to appeal.
Every defendant in an illegal re-entry case should make this argument.