United States v. Rosales-Gonzales, No. 14-50286 (9-16-15)(Nelson with Silverman and Wardlaw). When it comes to "fast track," be certain to get the stipulation. That is the take-away from this 9th Cir. opinion which affirmed a sentence in a reentry case by holding that a "fast track" departure is purely discretionary.
The defendant here had a lengthy immigration record (35 priors). His last such sentence was 14 months. Nonetheless, the gov't offered a "fast track" resolution (around 9 months). The defense lawyer argued for it because of health reasons: the defendant had a stroke. Although both the gov't and defendant recommended the "fast track," the court was uneasy because of the need for progressive sentencing. Even when the recommendation was upped to 15 months, the court declined to depart under the "fast track" and imposed a top of the guidelines sentence (after acceptance) of 27 months.
The 9th affirmed. In the post-Booker world, courts have great discretion in sentencing. The denial of the "fast track" was not a procedural error; the guidelines had been calculated correctly. The departure was not required even if jointly recommended. The sentence itself was not substantively unreasonable.
As a sentencing note, don't depend upon the kindness of courts for "fast track" departures. Get a stipulation for "fast track" to be sure.
The decision is here: