defendants era luciana as part of the dia as we don't hernandez as well as my own client who say lopez in support of the constitutionality challenge to the fast track program as it has been applied i'd like to start by observing at this real level the fast track program as applied would strike anyone as fundamentally unfair this is a program that takes defendants committing similar crimes be it the same crime with very similar it or even the same backgrounds and records and gives them very different sentences for know what look there are there are several circular just around the country where the deli don't have the same visceral i mean evidently not everybody would agree with that but it does leave you to ask you are you making an equal protection challenge here i am your honor we have couched in the briefs as a due process an arbitrary sentencing process argument but in this context it's identical to equal protection and the government action would survive in less there was a rational relationship for for the government action as a propping up standard come into play here all no no i do not believe it is so in chapman the united states supreme court cited in my provide believe also in the government's that case ex explains in this particular context when it's an arbitrary sentence and process there is absolutely no distinction between that is equal protection programs despite an underwhelming amount of immigration caseload and the other talk that is goes to demonstrate a lack of a rational basis the injury having stated that both in your brief and now this morning how is your injury addressable well what are you asking for your honor and the relief here is obviously if the court grants the constitutional argument it's an extraordinary relief what is the best would be to go back and as the policy stands now if this policy was not to change as it's applied for these four defendants or any defend it in a district without a fast track program if that defendant can demonstrate the similarity in all instances to a defended in a fast track program then  variance the failure to grant a variance would be an abuse of discretion because it would be unconstitutional with the coffee and i appreciate that is an extraordinary remedy with the coffee that obviously sentencing isn't in because i don't i don't see in your brief that you're arguing that there should be fast track in new jersey you're ass and saying that there should have been fast track in the brask in the van fast track in the western district of washington and there maybe should have been fast track in the vada based on statistics and i don't see how that gives you standing here your clients are not from nevada at least they aren't being sentenced in the vata  the burden would be on off or defend it's to show that but for geography they would qualify for a fast track departure i'm not sure if follow you because if we declare the fastrack unconstitutional isn't the effect of that to say those other people got a benefit they shouldn't not that your client gets a benefit that he shouldn't in other words what difference does it make to your client if all those other people were sentenced wrongly if the going forward relief is now everybody will be sentenced without regard to fastrack isn't your client in exactly the same posture we're not asking for the fast track program or the policy to go away as it's applied currently the and even application of the fast track policy is is resulting in a disparate impact which we suggest rise to the constitutional challenge so how can it be how can it be you seem to be saying and the dropping or works were pretty passionate that it's got to be the same everywhere in the country right if it's it and isn't that in essence saying there can be no such thing as a fast track program there either has to be everybody sentenced at the low and like fast track or everybody sentenced without regard to fastrack right what i think i'm saying yes but that every person should be a fair a fast track departure should be available to all defendants not the fact that it's available does not mean that necessarily is granted nor does it mean that you qualify for all that that this seems like a non sequitur then it's not a fast track then it's just a new lower sentencing guideline period right then that what you really are going for commission i don't and i would start by saying in the first instance i think that fast track doesn't describe the federal sentencing process with the plea colloquy or the decision to go to trial or not what makes it fast track is that what makes  don't care about whether they go through faster not do they they want the lower sentence isn't that what's going on here absolutely ok was it before we get the sentencing before we set and setting on let's see if it's constitutional or not  the only reason you articulate is because of loads of immigration cases in different districts but that's not according to the attorney general the only reason why they make a difference in having fast track or not in nebraska or could bake in determining which pilot districts will be granted fast track and which one would they be legitimate and would would that be a violation of due process i believe what your honor is asking is that would it would that be a rational basis and therefore with the constitutional claim fail that i would answer in the constitutional claim would still fail it should be considered an irrational basis because this is a very unique circumstance where a guy light is importing this disparate treatment which he doesn't know other context so i think that what is a rational explanation needs to be put into context in the context here is that we have a sentencing guideline in the sentencing in the sentencing commission sanctioning this type of disparate treatment despite the fact it flies in the face of uniformity transparency can't the attorney general for for a variety of reasons say i'm going to try fast track in c district but not x y z district and i have reasons and maybe you and i don't agree with those reasons but this is a reason we want to use it in nebraska or don't want to use it in nebraska and why will use it in texas  and other words as long as there's a rational reason even though we don't think the reason it's very logical would not be sufficient to defeat your constitutional claim if there is a rational basis yes that would defeat the constitutional claim is that what you have here have the that's what we have what we have is we don't have a lot of information the information is difficult to get but what we do have is there appears to be as this court in the first time air lucy it was here commented and certainly did never reached any issue and we're not suggesting that but the court that is prosecution statistics there are other kinds of resource issues that could rationally be taken into account and and they've and the department justice has been explicit about that right i mean they said there are other things that we could be looking at the ewing with says you could under a kimbrel kind of analysis take the spirity into account but you don't have to now how could you square holding like that with the assertion that it's unconstitutional i don't believe the constitutional argument was before the court in air lucianne and it's for the court now now did you raise that issue here reminds me did you properly raise  constitutional issue in a district court we will concede that plane error analysis applies here does it make any difference here does it really make any difference i don't think it does because if the court believes that this to be an important right then i believe then they are analysis  diaz and that issue applies solely to him the issue in that section of the bri comes after the court the district court after a guilty plea to an illegal re entry under eight c thirteen twenty six and a sentence of sixty months mr spars a day as contends that the district court sentence in his illegal case was unreasonable because the sentence was based on clearly erroneous facts scuse me clearly erroneous factual finding these clearly is erroneous findings led the court to deny mr spars a diaz a request for downward variance due to the time he spent in custody while he was awaiting indictment on the illegally entry case i thought the district judge said i think there's some merit to your lawyers argument mister as far as the us and so i'm going to sentence you lower in the guidelines what's what's wrong with the district court saying well there's some merit to the argument i'm not buying you give variance but i'll give you some break as far as the d s was asking him was to find that in essence that a criminal prosecution had been initiated had started that there was a clear intent of the ice officer to go forward with the the judge found as a fact that there that there wasn't the sort of a prosecution yes i guess what i'm wondering is when the district court judge says in sentencing him i think there's some merit to the argument so i'm going at the low end guideline range what what's wrong what's the clearly erroneous fact that's been found under those circumstances well what the judge is saying is that what he said and the record was that he that he is considering the fact that despite the d s has spent some time in custody prior to the initiation of the prosecution and he's taken that into consideration when sentencing him that but early earlier before he made that conclusion he goes and further and states that its record is not that that he is not convinced that in fact the record clearly states that prosecution was to begin because the u s attorney's office was still taking time to review the case and invest a case except or so u s attorneys office were not welcome they could have said that and we wouldn't be here today judge but i would a can this case to a matter for example where a police officer observes someone arrested on the street they take them into custody they have served them commit some type of felony they take them into custody and they begin to further investigate and prosecute the case the prosecutor's office has not actually except that the case but no one here would question that that defendant should not receive time credit for every single moment that they have been in custody after that arrest when it's clear and in this case the record clearly indicates the ice officers intent to prosecute him on a either thirteen twenty six or thirty twenty gave him warnings that he had the right to remain silent that he could be appointed attorney if he could not afford one etc etc if that is not the beginnings of a colonel prosecution judge i don't know what else is other cases but what we were trying to do in bringing this matter to the district court was to avoid what happened in several of the cynical twenty two forty one cases that we cited and that is our clients after sentencing having to go through the process of getting these credits as a result of you know because of the fact that the b o p program statement will not allow it statements make it unclear whether or not he actually found that mr spars a diaz establish the facts that would support him getting the time credit had he made that finding he would then state what his sentence should be and then credit him the four months accordingly now mr surprise the d s is left with b so out of it and i understand you're in a difficult position because can he now go to a judge after this appeal on a twenty to forty one pissed petition and say i should get my four months that the judge who could give him one mom didn't give him that did he give them sixty days credit because of that time that he spent waiting for the indictment it's unclear judge  constitutional rights assuming assuming that what they claim that the only reason for the irony is the volume of the immigration cases and nothing has been put forward that would indicate differently why doesn't that mean that the different districts criminal defendants for the same offense are being treated differently it's not a violation there's thing in there in their briefs they state and i all cited the lopez brief all the research substantially similar but on the on page ten of the lopez brief the sentence indicated this policy makes sense and so our understanding is that they're not challenging the policy at large they're challenging its application in districts other than their own and so they're for their challenge in that that that they're being treated differently than by the government then defendants in other that's the case then there is some absence of rational reason for that this fired well i i mean i think they've admitted that the policy makes sense that there would be that there would be a good reason for the government to have the policy in some locations and it's it's not just of about geography it's about the burden of cases in those in those districts and not in others and here they can't show injury causation or address ability because even if they are right that and we accept the facts it's true that in nebraska or in washington this policy is irrationally implemented if that were rectified it wouldn't change anything about new jersey's circumstances and whether they would be they would be we would have a policy we would apply for a policy they would be able to apply under that policy for  we think this policy is unconstitutional what would be there every day when we said this policy was unconstitutional you know it's a lot of what happened to these defendants it's forget about what the attorney general and the justice department going to do with the fast track policy in general but what would happen with these defendants i would think that these defendants would again not be eligible for any kind of relief because lesser sentences than what we're getting when they be able at least to point towards that to all those statistics and say you know the rectify this constitutional violation we should get less than what you originally gave us but but there there injury in that case would be that some of the people got a relief they shouldn't have and so now you're saying we're putting an end to this this is unconstitutional we won't do this anymore but that doesn't leave them in any different circumstance th possible that they could say to the court you know other people got a windfall that i didn't get but but this court is not grandstanding to defendants to rectify a windfall they weren't there that their only injury is that other people are considered for this and they're not and but if the government that you mandated even that the government give them then gauge in the fast track policy and give them a fast track plea and then recommend to the court that they therefore should receive this some kind of downward variance i don't know how much it would be i mean there are several levels of discretion that are involved and then the judge would have to exercise his discretion that's what that's the most they would be entitled to is is some kind of participation in a discretionary process with several levels of discretion by different decision makers and that again is too speculative to grant them  that are given under the guideline range under the fastrack program or the or the appropriate sentence is because the government wouldn't be giving less than was necessary but by law their government is not supposed to be  more than is necessary so if they're giving less in other districts under the partially provision they should be giving that lesser sentence everywhere that's only right and fair according to the statutory parsimony direction what's your response the government rejects that argument because there are many considerations that going in go into the government's decision to grant that kind of relief that are at play in these districts that such as new jersey that are at play where it engages in a fast track program and so it isn't a righteous sentence strictly based on the defendant's conduct but also based on several considerations to do with the use of resources in those jurisdictions that make this sort of the best compromise for everybody to make this to make sure that these crimes are prosecuted as best we can but those resources those resources asians are not indicated here in new jersey and so to suggest that our decision in those cases with different sentences for people who are similarly situated not i think they acknowledge that they need to be similar situation right they do well they do need to be someone they situated they are not similarly well similarly situated as to criminal background and willingness to plea and offense for which they were pleaded guilty but if there's also a resource determination that goes into the office does that mean you have farther what about how does resource determination have anything to do with thirty five fifty three times because when when the government decides whether to offer someone a guilty plea or not to offer someone a guilty plea there are many factors that are considered i don't see it anywhere in thirty five fifty three thirty five fifty three a you mean when we talk about step three of the guidelines i don't see anything about the government resources in there it's all about the defendant told by the developer and the nature and characteristics of the crime ok all go and you can read the whole second you're going to find what you're pointing out well there's also under disparity and and what we're saying is this is an undue disparity i mean it's that it's the consistent argument that we have made in these cases that that some defend that there that there are due and undue disparities between defendants and if if you are prosecuted in the district where the resources support a fast track program and and that is the decision of the prosecutors that is not an unwarranted disparity does not  don't understand five years after the supreme court decision booker exactly what substantive on reasonable this means i may not be the only person in iran that has trouble figuring out what that means but why why isn't what the appellant's here talking about substantively and reasonable in light of the fact that it's ok in fast practice tricks to get x minus why but when you're in new jersey you get x because as with any plea bargain that's entered into it by the government there are many resource considerations on both sides and and  interests on both sides that are negotiated and a compromise is arrived at and in legislating a limit on the fast track programs as congress originally did when it was you know when the guidelines were mandatory and it was trying to address the degree of disparity that was occurring under the guidelines it said well here's one that everyone keeps complaining about so let's raney and this degree of disparity and limit it to a four level program and make certain and structure it in a certain way  and the government then you know implemented and sent out the attorney general's memo implementing this but this is actually kind of a remarkable restriction on the government's discretion as it is i'm to say you can only do government executive branch when you negotiate and decide to give someone credit and move these these cases along we ask that you limit the amount of discretion and the amount of credit that you you give them  when your entering into these plea bargain we think it's extraordinary for the congress to say in effect we'll let you do this but you'd better do it fairly i mean that's the only thing that congress is trying to get it is well congress is is is saying here are the things that we consider to be important to them and right right well i don't i mean i don't i think it's presumed that the government uses its resources differently so  the exact same crime committed by virtually the same person same background everything done take much to postulate you know a fellow and his twin one of  ending up in nebraska and the other in new jersey getting extraordinarily different sentences for no reason other than the fortuity of where they were arrested is there any is there any other program in the prosecutor like it is there but it's it would be harder to see you wouldn't know how the government is exercising its discretion to charge or not charge certain crimes because those charging decisions are not subject to a federal program where people explain them in their limited but it  think right i think that's exactly their point it's on the romantic it's the government of the united states saying well if you're if you're a criminal in nebraska you get a lighter sentence than if you're the same criminal in new jersey and that i understand their argument to be hey there's something constitutionally wrong with people getting different sentences based on nothing other than where they happen to have committed the crime or be arrested for well because it's not based on nothing at the end of the day it's based on the fact that these places have demonstrated they have extraordinary burdens and a set of priorities that they need to meet in order to prosecute all of the crimes to come under their jurisdiction but but you you've shown us nothing that that any standard or criterion that's been put forward in order to determine what districts get the fast track and which don't so it seems to be haphazard and and which would make it not fair is that correct i mean if you don't necessarily need it is according to the train generals memo sets out the standard and the standard as i understood it from there is is not in dispute is a fair standard  we are not required as the government to to show that it's to put forward the reasons to support our program and how every day i was very clear about this it is the defendant's burden in the case that does not involve a suspect classification to show to th gate every conceivable rationale for the program and the government has indicated that there are several conceivable rationales for this program to exist all of which are rational or could we are talking about rational for the  know rationally just say you get one question what is there between that and what we have here yes there are several differences between what we have there and here and that's what every court to have considered this has found that there are occasionally cases of extraordinary there are extraordinary resource pressures on certain districts in the country and there may arise periodic lee resource pressures on other districts to prosecute certain kinds of cases now we would like to limit the amount that that the effect that has on some one sentence but on the other hand it doesn't these resource problems don't exist everywhere and so while there are people who may get a break from their sentence in that's of much greater reduction in the sentence than the four months the defendant was claiming he would have been due and so therefore the defendant and that he explicitly went back and forth with the defendant and clarified what what certainty level there was that that we knew that that there was some kind of intention to prosecute this person and it was rather foggy there are several reasons to think that they didn't know at that point that they intended to prosecute him but in any event the west east of the mississippi to to further that if west of the mississippi you get fifteen years i think it was the east coast that was kinder maybe and they get ten years on the east side and the statement to that is because they're down a prosecutor on the east side or because the jails are overcrowded or east of the mississippi the question then becomes is that rational and what does rational mean particularly and all circuits that have come to address the issue this far and even in our brief have said no this is not a suspect classification and we had alleged it is a fundamental right but the question becomes when it in braces one's physical liberty obviously there's lots of  court that physical liberty is is forfeited as a right when you're convicted of a crime but when it does touch on your physical liberty what do we do that rational basis review and whether or not it's entitle to something a little more something with some teeth were intermediate review work simply in the context it's still rational relation and they are still basis for it isn't that i mean that is the review we're obligated to give this right yes but in the context perhaps it's not it's not the scene because of the touching on a fundamental right of liberty well go to the question of whether being programatic or not makes a difference would you agree that if if there weren't a fast track program but prosecutors in the southern district of texas said look we just can't handle these numbers right now so we're going to deal with it in the following way in fact the way that the fast program organically developed in the ordinary exercise of prosecutorial discretion judgments were made would would you have would be making the same constitutional argument you're making today absolutely not because the exists it exists always that obviously something is more serious even within the state of new jersey a particular county that's busy may consider a crime less serious and may have to give better breaks it happens all the time sure so then what makes it unconstitutional for the department of justice and then congress to give sanction to it to say you know what this is a problem that pops up in a lot of places here's how we want you to guide that this crash instead of you having unfettered discretion in this regard we're going to give you some guideposts for how to deal with that discretion there's the there's the addition of guideposts and of of authorization through the central authority of the o j now convert that prosecutorial discretion which you concede is appropriate into something unconstitutional i think it's because then it's imported into the guidelines and when it's imported into the sentencing process and it finds its way into chapter five and then has to go through all of what the thirty five fifty three a factors which never mention government convenience or resources the language is very clear that disparity is concerned only the defendant the individual defendants their conduct whether or not it be similar and their prior records and whether or not that be similar and once you put it into thirty five fifty three eg through the sentencing process the guidelines and your body have the parsimony principle which says no sentence a sentence should be no greater than necessary you have a problem because obviously in those other districts those sentences were considered no greater than necessary then how then is this then we have this population that is over sentence which is in fact the injury in fact here that these these defendants that we represent received were over sentenced under the per parsimony princip i thank you miss lucy of anything else that again i would just ask the court to re reach out who comments it's not clear again that he only took into consideration the argument that was made on behalf of mr spars of diaz with respect to the time credit there were other arguments in mitigation arguments presented during the sentencing hearing and judge cooler does state that he considers the credit but but there were other issues made arguments made and it doesn't state how much and so and taken that into conjunction with his prior comments it is clear to us