If a previously deported alien is apprehended in the United States and charged with illegal re-entry, he can face more than 50 months of imprisonment. However, this is not always the case. In some districts, fast-track programs are in place that can greatly reduce the length of a sentence for illegal reentry.
In 1994, the Southern District of California was processing 600,000 arrests a year along the Mexican border. In response to this large, and increasing, number of arrests, the United States Attorney for that district decided to implement a fast-track program for defendants who violated 8 U.S.C. § 1326 (Reentry of Removed Aliens). In exchange for a 24-month sentence, defendants waived their rights to an indictment by a grand jury, trial by jury, presentation of a pre-sentence report, and appellate review of the sentence. Because the program successfully lessened the strain on the Southern District of California’s prosecutorial resources, other southwestern districts decided to create fast-track programs of their own.
In 2003, Congress approved the programs as part of the PROTECT Act (“PROTECT” stands for Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today), and Attorney General Ashcroft expressed the principle on which the Justice Department would authorize a fast-track program in any district: “[A] defendant who promptly agrees to participate in such a program has saved the government significant and scarce resources that can be used in prosecuting other defendants.” Today, thirteen federal districts have fast-track programs: Arizona; Central, Southern, Eastern and Northern California; Idaho; Nebraska; New Mexico; North Dakota; Oregon; Southern and Western Texas; and the Western District of Washington.
But why should illegal reentry defendants in San Diego be able to get a break on sentencing when those in New York must face a sentence strictly based on Guidelines? Quite simply, because New York is not a fast-track jurisdiction. At least not yet.
In US v. Mejia (2d Circ., 2006), Jorge Mejia appealed a 37-month sentence from the Southern District of New York for illegal reentry. He argued that his sentence created an unwarranted sentencing disparity, and that he should have received a sentence comparable to one he would have received had he been charged in a district with a fast-track program. But the Second Circuit Court of Appeals affirmed the lower court’s decision stating, “We join other circuits in holding that a district court’s refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable.”
However, the appeals court may have been sending an encouraging message when it added: “The record does not reflect whether the Southern District of New York could qualify for a fast-track program, or why qualification has not been sought (or if sought, not granted). . . the SDNY has more than twice the number of illegal reentry cases as the districts of Idaho and Nebraska, and more than four times the number as the districts of North Dakota and Western Washington.”
Unfortunately, this will not help defendants facing illegal reentry prosecution in the Southern and Eastern Districts of New York in the immediate future. The Court of Appeals held that fast-track plea bargains are only permissible in fast-track districts, which the New York districts presently are not, but there appears to be some real prospect of their ultimately joining the fast-track “club.”