U.S. v. Perez-Chavez
| Decision Date | 16 May 2005 |
| Docket Number | No. 2:05-CR-00003PGC.,2:05-CR-00003PGC. |
| Citation | 422 F.Supp.2d 1255 |
| Parties | UNITED STATES of America Plaintiff, v. Raul Enrique PEREZ-CHAVEZ Defendant. |
| Court | U.S. District Court — District of Utah |
Dustin B. Pead, US Attorney's Office, Salt Lake City, UT, for Plaintiff.
ORDER AND MEMORANDUM OPINION REGARDING DOWNWARD DEPARTURE FOR DISPARITY CREATED BY "FAST-TRACK" PROGRAM AND FOR OTHER REASONS
Should a defendant arrested in Utah serve a longer prison term than a defendant arrested in Arizona for the identical crime? That is the issue pending before the court as a result of various "fast-track" programs for the rapid disposition of illegal re-entry cases. Under these programs, a defendant arrested for illegal reentry in the District of Arizona, the Southern District of California, or other "fast-track" jurisdictions who enters a rapid guilty plea is given a shorter sentence than otherwise called for by the Sentencing Guidelines. Because this sentence disparity is troubling, the court has raised the issue of whether the defendant here—Mr. Raul Enrique Perez-Chavez—should be eligible to receive the same shorter sentence that would result in a fast-track jurisdiction.
Having received capable argument from both sides on this question, the court reluctantly concludes that it cannot vary from the Guidelines and give Mr. Perez-Chavez the shorter sentence he would receive in Arizona and other fast-track districts. To do so would be to ignore the recent congressional directive, contained in the PROTECT Act, that only the Attorney General can authorize fast-track programs. This command is now reflected in the Sentencing Guidelines themselves, which provide for the downward adjustments under Attorney General-approved fast-track programs, but not elsewhere. Moreover, while these programs clearly result in sentencing disparity between similarly-situated offenders, they also assist the Department of Justice (and the courts) in quickly processing large numbers of illegal re-entry cases. Congress could reasonably conclude that these benefits outweigh the attendant disparities in sentencing. Finally, nothing in the Constitution prohibits different sentences resulting from fast-track programs, as these differences arise from prosecutorial discretion rather than invidious discrimination. For all these reasons, the court will apply the Sentencing Guidelines in this case and not vary downward to attempt to match fast-track dispositions that might be available in other jurisdictions.
At the same time, however, the court encourages the Justice Department to attempt to minimize the disparities caused by these programs. In the court's view, the Department should consider whether to extend these programs across the country rather than applying them in a few selected districts. Based on the information that has been presented in this case, it is hard to see any real justification for having fast track programs in only selected jurisdictions.
While a fast-track adjustment is not appropriate in this case, Mr. Perez-Chavez has also moved for a downward departure based on the extraordinary family circumstances that prompted his illegal re-entry into the country. This argument is well-founded and the court will accordingly depart downward from the Guidelines for this reason.
The compelling facts of this case are essentially undisputed. The defendant, Raul Enrique Perez-Chavez, was born on April 13, 1978, in Tijuana, Mexico. Ever since he was two years old, he has had a passport and visa to visit the United States and has visited the United States frequently. In 1996, Mr. Perez-Chavez began a relationship with his common law wife, Mayra Wong-Valencia. In 1998, he began living in the United States, and they had three boys together.
On March 20, 2003 Mr. Perez-Chavez and his wife were deported to Mexico. They had three children, all boys, Luis Raul, Christian Andre, and Carlos David, then ages five, four, and one respectively. Each of the boys had been born by Caesarean section and were United States citizens by virtue of having been born in this country.
Soon after the deportation, Ms. Garcia-Wong became pregnant. During the next five months, she received medical care at a local Mexican clinic. Unfortunately, she developed severe health problems for a variety of reasons, including the closeness of her previous pregnancies, the fact that all had been concluded by Caesarean section, and the gestational diabetes she developed with every pregnancy. Her condition worsened to the point that she could not care for the children. Mr. Perez-Chavez was working to support the family, so Ms. Garcia-Wong sent her two oldest boys back to Utah to be cared for by their grandmother. Ms. Garcia-Wong's condition continued to deteriorate to the point that she was referred to a gynecologist, who told Ms. Garcia-Wong that both her life and the life of her unborn child were in danger and that the only chance for her baby was to return to the United States to receive appropriate medical care.
Afraid for her unborn child's life, Ms. Garcia-Wong returned reluctantly to the United States in November 2003. Less than a week after her return to Salt Lake City, she was admitted to the University of Utah Hospital for an emergency Caesarean. On November 24, 2003, her baby, Angel, was born three months premature. Angel weighed less than three pounds and suffered from underdeveloped lungs as well as the RSV virus. Angel remained hospitalized for one month before being released, and received treatment for RSV for five or six months thereafter.
Ms. Garcia-Wong remained in the United States for a few more months to allow Angel's health to continue to improve. In October 2004, she prepared to return to Mexico to rejoin her husband, Mr. Perez-Chavez, who had remained in Mexico this entire time rather than reenter the United States illegally. Just as Ms. Garcia-Wong was preparing to leave, her grandfather became terminally ill with lung and liver cancer. Her mother could not care for him, so the responsibility fell on Ms. Garcia-Wong's shoulders. Having to care for her own children (including Angel, whose health remained in a delicate condition) and her grandfather became too much for Ms. Garcia-Wong, and she reached a breaking point. She called Mr. Perez-Chavez and told him that she desperately needed his help. By this time, he had been separated from his wife for one year. He reluctantly agreed to return, doing so only to help his wife with responsibilities that were threatening to overwhelm her. He entered the country illegally on November 1, 2004. His wife's grandfather died three weeks later. On December 16, 2004, Mr. Perez-Chavez and his wife were stopped in Utah for speeding and were arrested and indicted on the offense now before the court—violation of 8 U.S.C. § 1326, re-entry by a previously deported alien.
Ms. Garcia-Wong's case has been resolved. She pled guilty and both the government and defense counsel moved for a downward departure from the Guidelines in view of the unusual circumstances of her case. The court granted the motion and imposed a sentence of time served, remanding her to the Bureau of Immigrations and Customs Enforcement for deportation proceedings.
Mr. Perez-Chavez has also pled guilty and has requested that his sentence be adjusted downward to account for the disparity created by the fast-track program, or because of other extraordinary circumstances of this case.
Before turning to the details of Mr. Perez-Chavez's case, a brief review of fast-track programs is in order.1 Both sides agree that Mr. Perez-Chavez will serve a significantly longer prison sentence under the Sentencing Guidelines because he was arrested in Utah rather than in, for example, Arizona. This disparity stems from so-called "fast-track" disposition programs under which prosecutors offer immigration offenders like Mr. Perez-Chavez a reduced sentence in exchange for an expeditious guilty plea. "The premise on which fast track programs are based is that defendants who promptly agree to participate in such a program save the government significant scarce resources that can be used in prosecuting other defendants and demonstrate [extraordinary] acceptance of responsibility. . . ."2 In recent years, fast-track programs of one form or another existed in approximately one-half of the judicial districts in the United States.3
While these programs have existed for some time, they were not statutorily recognized until the PROTECT Act of 2003, in which Congress specifically granted the Attorney General the authority to create early disposition or "fast-track" programs.4 Under the Act, individual U.S. Attorney's Offices must petition the Attorney General for permission to adopt such a program. Interestingly, in 2004, the U.S. Attorney for the District of Utah requested authorization from the Attorney General to implement a fast-track program for immigration cases in Utah, but the Attorney General denied the request. Neither the reasons for the application nor the reasons for the denial are in the public record.
Because Utah does not have a fast-track program, Mr. Perez-Chavez will receive a longer sentence than he would in a district such as the District of Arizona. Under the applicable 2004 Guidelines Manual, the base offense level for an 8 U.S.C. § 1326 offense is eight.5 Because Mr. Perez-Chavez was previously deported after conviction of Possession of a Controlled Substance, the base offense level is enhanced eight levels, resulting in an adjusted base offense level of 16.6 Because of the prior conviction which led to Mr. Perez-Chavez's first deportation, and the fact that his reentry occurred less than two years after being released and while still on probation, Mr. Perez-Chavez has a criminal history score of five, which places him in criminal history category HI.7 After credit for a three-level reduction for...
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