U.S. v. Galicia-Cardenas, 05-3093.

• Decision Date: 24 March 2006
• Docket Number: No. 05-3093.,No. 05-3486.,05-3093.,05-3486.
• Citation: 443 F.3d 553
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Alejandro GALICIA-CARDENAS, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Antelmo Vega-Lopez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 553

443 F.3d 553

UNITED STATES of America, Plaintiff-Appellant, v. Alejandro GALICIA-CARDENAS, Defendant-Appellee.

United States of America, Plaintiff-Appellee, v. Antelmo Vega-Lopez, Defendant-Appellant.

No. 05-3093.

No. 05-3486.

United States Court of Appeals, Seventh Circuit.

Submitted February 8, 2006.^*

Decided March 24, 2006.^**

Richard G. Frohling (submitted), Office of the U.S. Atty., Milwaukee, WI, for Plaintiff-Appellant in No. 05-3093.

Peter M. Jarosz (submitted), Paul W. Connell, Office of the U.S. Atty., Madison, WI, for Plaintiff-Appellee in No. 05-3486.

Brian P. Mullins, Federal Defender Services of Eastern Wisconsin, Inc., Milwaukee, WI, for Defendant-Appellee in No. 05-3093.

Christopher Malloy, Delyea & Cornia, Madison, WI, for Defendant-Appellant in No. 05-3486.

Before MANION, KANNE, and EVANS, Circuit Judges.

PER CURIAM.

We consolidate these two cases for decision because they raise the same issue. In the first case, Alejandro Galicia-Cardenas was charged in a single-count indictment alleging that he entered the United States without permission after having previously been deported following a 1994 conviction for an aggravated felony—second degree robbery in Los Angeles. Galicia-Cardenas entered a guilty plea to the charge in the Eastern District of Wisconsin. Vega-Lopez was charged with the same offense, but his aggravated felony was a 1997 conviction for possession of marijuana for sale, ironically (we assume) also in Los Angeles. He entered a guilty plea to the charge in the Western District of Wisconsin. Vega-Lopez appeals his sentence. The government appeals the sentence Galicia-Cardenas received.

Both judges in these post-Booker cases appropriately consulted the guidelines and treated them as advisory. Vega-Lopez's properly calculated guideline range was 27 to 33 months. The court imposed a sentence of 30 months. Galicia-Cardenas, who had a prior conviction for a crime of violence, fared worse under the guidelines as his properly calculated advisory range was 41 to 51 months. His sentence, however, was 27 months, 3 months less than the term Vega-Lopez received.

In sentencing Mr. Galicia-Cardenas, the judge concluded that because the Eastern District of Wisconsin has not implemented a fast-track program to prosecute illegal reentry cases, the use of such programs in other districts created an unwarranted sentencing disparity between Galicia-Cardenas and other immigration offenders. As a result, the judge adjusted Galicia-Cardenas's sentence downward the equivalent of 4 levels and arrived at the 27-month sentence. In sentencing Mr. Vega-Lopez, the district court declined to bestow a similar benefit on him because a fast-track program is not used in Wisconsin.

In 1994, the Southern District of California—a district which saw more than 600,000 arrests annually at its border with Mexico in the early 1990s—adopted an early disposition or "fast-track" program. See Alan D. Bersin, Reinventing Immigration Law Enforcement in the Southern District of California, 8 Fed. Sentencing Rep. 254 (1996). Soon, other "border" states followed suit with fast-track programs of their own.

In 2003, Congress formally approved the use of fast-track programs. As part of the "Prosecutorial Remedies & Other Tools to End the Exploitation of Children Today Act" (the "PROTECT Act"), Congress granted the Attorney General the sole authority to create and implement fast-track programs. See Pub.L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003).

Although the general goal of the PROTECT Act was to reduce downward departures, Congress directed the Sentencing...