Sunday, January 11, 2009

Case o' The Week: Ninth's blow to Kimbrough, Gonzalez-Zotelo and fast-track disparities

A disappointing decision authored by Judge Barry Silverman (left) deepens a circuit split on the scope of a district court's sentencing discretion after Kimbrough. See United States v. Gonzalez-Zotelo, __ F.3d __, 2009 WL 37144 (9th Cir. Jan. 8, 2009), decision available here.

: Hard-fought appeal by San Diego AFPD Steve Hubachek.

Facts: Gonzalez-Zotelo was denied a fast-track offer because of a prior conviction for lewd & lascivious acts with a child. Id. at *1. Earlier on the day he was sentenced, another illegal-reentry defendant – with armed robbery priors – was sentenced by the same judge to thirty months on a fast-track deal (about half of Gonzalez-Zotelo’s guideline range). Id. Unable to rationalize these disparities, the district judge sentenced Gonzalez-Zotelo to thirty months. Id. The government did not object to the lower sentence on this basis, then took this appeal. Id. at *2.

Issue(s): “The government argues that it was unreasonable for the district court to base its sentencing decision solely on disparities between a defendant who did not receive a fast-track plea offer and a defendant who did.” Id.

Held: “Because the district court erred when it imposed a lower sentence on Gonzalez-Zotelo based solely on what it misperceived to be unwarranted sentencing disparity, we vacate the sentence and remand for re-sentencing. Under our cases, the disparity in question is indeed warranted, because it is justified by Congress’s approval of fast-track plea bargaining programs.” Id. at *1.

Of Note: In Gonzalez-Zotelo, Judge Silverman places the Ninth on the wrong side of growing circuit split by rejecting the discrepancies in fast-track offers as a basis for a reduced sentence. Id. at *3. This important new rule is set forth in, respectfully, an unpersuasive decision. The opinion looks back to a pre-Kimbrough case, United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir. 2006), for the proposition that the government’s often-whimsical decisions on which defendant receives a fast-track offer is not a basis for a reduced sentence. Id. at *2. How Marcial-Santiago survives Kimbrough, however, is a head-scratcher. The opinion distinguishes the Supreme Court case by concluding that Kimbrough authorizes variances when a district court disagrees with a Guideline – but not Congressional policy. Id. at *3.

The biggest problem with this distinction, however, is that Congress didn’t articulate the (arbitrary) distinctions that new AUSAs concoct to deny the fast-track offer. As Hubachek has pointed out, Congress (or the Commission) said nothing about unaggravated PC § 288 crimes being ineligible for fast-track, but knife-wielding robbers being entitled to the break. The discrepancy in this case was created by the government – not Congress – and that disparity has long been a sound basis for a reduced sentence. See, e.g., United States v. Daas, 198 F.3d 1167, 1180-81 (9th Cir. 1999) (“Downward departure to equalize sentencing disparity is a proper ground for departure under the appropriate circumstances.”)

A threshold question, however, is how the government ever survived plain error review in this case? Hubachek astutely observes that when the defense is fighting plain error, a circuit split has been the kiss of death. See United States v. Miranda-Lopez, 532 F.3d 1034, 1040-41 (9th Cir. 2008) (Silverman, J.). Again, with all respect, seems tough to reconcile the Miranda-Lopez plain-error approach with Gonzalez-Zotelo. Gonzalez-Zotelo creates broad new Ninth sentencing law, deepens a circuit split, and is inconsistent with very recent law on plain error. It deserves a second look en banc.

How to Use: Because the Supremes may someday resolve this circuit split arguments based on fast-track disparities are worth preserving. A prudent approach, however, would to be to urge different bases for imposing the same sentence, on less-controversial grounds. The district court here could have broadly stated that it considered the Section 3553(a) factors, reflected on the unique facts of the prior conviction (see United States v. Sanchez-Rodriguez, 161 F.3d 556, 561-62 (9th Cir. 1998)) and imposed the lower sentence on those grounds. While the full scope of Kimbrough is being slugged-out, prudent to urge belt-and-suspender sentencing departure/variance bases.

For Further Reading: For various commentary on Gonzalez-Zotelo, visit Professor Berman’s sentencing site here.

Image of the Hon. Barry Silverman from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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Blogger Steve Kalar said...

If you're fighting for a policy variance from fast-track and are coming up against the Ninth's decision in Gonzalez-Zotelo, take a look at Judge Goodwin's October 2010 decision in United States v. Mitchell. The blog entry here ( ) describes how to use Mitchell to attack the viability of Gonzalez-Zotelo.

Sunday, October 24, 2010 12:53:00 PM  

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