# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 23, 2011 *

Decided April 13, 2011

Before

FRANK H. EASTERBROOK, Chief Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 10

‐ 3590

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

JOSE O. MEDINA

‐ SUAREZ,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division

No. 09 CR 790

Ronald A. Guzmán

Judge

.

O R D E R

Jose Medina

‐ Suarez, a citizen of Mexico, was removed from the United States in 2004

but returned a few months later without permission. His arrest for a traffic offense led to

federal prosecution under 8 U.S.C. § 1326(a). Medina

‐ Suarez pleaded guilty, and at

sentencing he argued that he should receive a prison term below the guidelines range of 46

to 57 months because the Northern District of Illinois does not have a “fast track” program. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the briefs and record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and record. See F ED

. R. A PP

. P.

34(a)(2)(c).No. 10

‐ 3590 Page 2

Prosecutors in a number of judicial districts offer shorter sentences to defendants charged

under §1326(a) if they plead guilty promptly and also satisfy other qualifying criteria.

Medina

‐ Suarez argued that the small number of fast

‐ track programs creates an

unwarranted sentencing disparity between districts. The district court commented that the

limited availability of fast

‐ track programs is “a little bit offensive” but agreed with the

prosecutor that our precedent precluded consideration of the claimed disparity. The court

did not say how it would have responded to Medina

‐ Suarez’s argument if given the

discretion to do so. The court did agree with Medina

‐ Suarez that his criminal history

category was overstated, and on that basis sentenced him below the guidelines range to 41

months.

On appeal Medina

‐ Suarez argues that the district court erred by not considering his

fast

‐ track argument. At the time of sentencing, our precedent did not allow a district court

to award a below

‐ guidelines sentence because of a disparity created by fast

‐ track programs.

See United States v. Olmeda

‐ Garcia

, 613 F.3d 721, 725 (7th Cir. 2010); United States v. Galicia

‐

Cardenas, 443 F.3d 553, 555 (7th Cir. 2006). But while Medina

‐ Suarez’s appeal was pending,

we overturned that precedent and held that a sentencing court should be able to consider

the lack of a fast

‐ track program when crafting an individual sentence. United States v. Reyes

‐

Hernandez, 624 F.3d 405, 422 (7th Cir. 2010).

In view of Reyes

‐ Hernandez, the district court committed a procedural error by

categorically excluding Medina

‐ Suarez’s fast

‐ track argument as a sentencing consideration.

The government concedes that the error might have affected the sentence imposed, and thus

the error is not harmless. See United States v. Anderson

, 604 F.3d 997, 1003 (7th Cir. 2010).

Medina

‐ Suarez’s sentence is VACATED and his case is REMANDED for re

‐ sentencing.