United States v. Hendry, No. 06-5118-cr (2d Cir. Aprl 9, 2008) (Leval, Calabresi, Wesley, CJJ) (per curiam)
In this decision the Court blows yet another opportunity to clarify the “fast-track” sentencing issue in illegal reentry cases.
The court has already held that district courts are not required to take into account the lower sentences imposed in fast track districts, but has left open the question whether a court has the authority to do so if it deems a reduced sentence warranted. This decision still seems to leave the question open. Here, although Hendry argued that the district judge erroneously believed that he could not consider the absence of a fast-track program in deciding what sentence to impose, the circuit found that the district judge believed that he could consider it – although he elected not to do so – and the opinion does not say whether the judge’s belief was correct or incorrect.
The opinion does, however, hold that fast-track sentences in other jurisdictions do not “require” a lower sentence in non-fast-track districts under the parsimony clause. “[S]entences in fast-track districts cannot be compared with sentences in non-fast-track-districts in order to demonstrate that the latter are longer than necessary [because] the two are not directly comparable.”
Comment: This unfortunate decision actually creates more questions than it answers. We still do not know for sure whether a court can consider the fast-track argument. And now, because of the way this opinion is written, we also do not know for sure whether a court can consider the parsimony argument. Does this opinion mean that district courts are not “require[d]” to consider fast-track sentences under the parsimony clause, or that they cannot? It can be read either way.