In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3932

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SERGIO SANDOVAL RAMIREZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 09 CR 50023-1—Frederick J. Kapala, Judge.

No. 10-2190

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANCISCO OCAMPO-PINEDA,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 CR 632-1—Virginia M. Kendall, Judge.
2 Nos. 09-3932, 10-2190 & 10-2689

No. 10-2689

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LUIS A. MANDUJANO-GONZALEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 CR 586-1—Amy J. St. Eve, Judge.

ARGUED APRIL 27, 2011—DECIDED JULY 20, 2011

Before CUDAHY, EVANS, and TINDER, Circuit Judges.

EVANS, Circuit Judge. We have consolidated these

appeals to answer a recurring question: What evidentiary

showing must a defendant charged with being found in

the United States after previously having been deported,

8 U.S.C. § 1326(a), make before a district court is obliged

to consider his request for a lower sentence to account

for the absence of a fast-track program in that judicial

district? The question has been percolating since we

decided United States v. Reyes-Hernandez, 624 F.3d 405,

417, 420 (7th Cir. 2010), which permits sentencing courts

to compensate for fast-track disparities but emphasizes that no district judge is required to evaluate

this mitigating argument until the defendant demon-
Nos. 09-3932, 10-2190 & 10-2689 3

strates that he would have been eligible to participate in

a fast-track program and, in fact, would have “pursued

the option” had it been available. The contours of this

threshold qualification have not been defined in a published opinion, but four nonprecedential orders offer

helpful guidance. See United States v. Vazquez-Pita, 411

F. App’x 887 (7th Cir. 2011); United States v. Morant-Jones,

411 F. App’x 885 (7th Cir. 2011); United States v.

Abasta-Ruiz, 409 F. App’x 949 (7th Cir. 2011); United States

v. Torres-Vasquez, 406 F. App’x 40 (7th Cir. 2010). And in

one of these appeals now before us, we directed the

parties to submit supplemental statements addressing

the question.

We hold that a district court need not address a fasttrack argument unless the defendant has shown that he

is similarly situated to persons who actually would

receive a benefit in a fast-track district. That means that

the defendant must promptly plead guilty, agree to the

factual basis proffered by the government, and execute

an enforceable waiver of specific rights before or during

the plea colloquy. It also means that the defendant

must establish that he would receive a fast-track sentence

in at least one district offering the program and submit

a thorough account of the likely imprisonment range in

the districts where he is eligible, as well a candid assessment of the number of programs for which he would not

qualify. Until the defendant meets these preconditions,

his “disparity” argument is illusory and may be passed

over in silence.
4 Nos. 09-3932, 10-2190 & 10-2689

I.

The three defendants in our consolidated case are

Mexican nationals who were living in the United States

illegally. Luis Mandujano-Gonzalez first entered this

country without authorization in 1998. Two years later,

he was convicted in Indiana of battering his girlfriend

and her young son. The government removed him to

Mexico after his release from prison in 2006, but

Mandujano returned to the United States unlawfully. In

2009, police in Waukegan, Illinois, arrested him for

driving under the influence of alcohol. He was charged

in federal court with violating § 1326(a), and nine

months passed before he pleaded guilty. He did not

waive, however, his rights to file pretrial motions, to

appeal, or to seek postconviction relief under 28 U.S.C.

§ 2255. A probation officer calculated a total offense

level of 21 and a criminal-history category of III, yielding

an imprisonment range of 46 to 57 months. This calculation included, among other things, a 16-level increase

under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Mandujano

was removed from the United States after a conviction

for a felony crime of violence—beating his girlfriend’s 13-

month-old son.

Mandujano submitted a sentencing memorandum in

which he asserted that the absence of a “fast track” program in the Northern District of Illinois created an unwarranted disparity between his guidelines imprisonment range and the sentences meted out in fast-track

districts. But he dedicated only one paragraph to this

contention and didn’t even mention the criteria that
Nos. 09-3932, 10-2190 & 10-2689 5

defendants in fast-track districts must meet to obtain

relief, much less discuss whether he would have been

eligible to participate in any of those fast-track programs.

At the sentencing hearing, the district judge asked

whether Mandujano would have been eligible for fasttrack relief in a district that offered it. “Probably not,”

Mandujano’s lawyer conceded, since his client “didn’t

do all the things he might have had to do” to qualify.

“Then how is there a disparity,” the judge pressed,

if Mandujano would not have received a reduction in a

fast-track district? The lawyer had no answer. With that

the court rejected the disparity argument and sentenced

Mandujano within the guidelines range to 48 months.

The court reasoned that Mandujano had not demonstrated his eligibility for fast-track sentencing and,

indeed, that he probably wasn’t eligible to begin with.

Our second defendant, Sergio Ramirez, first entered the

United States in 1990 and was granted permanent residency. But eight years later, he was convicted in Illinois

of aggravated kidnapping, so immigration officials

revoked his status and removed him to Mexico. He returned to the United States unlawfully and was removed

a second time in 2005. Four years later, immigration

officials received a tip that Ramirez was back in the

United States and had applied for an Illinois driver’s

license under an alias. He was charged under § 1326(a) and

pleaded guilty about three months later. But he did not

waive his rights to file pretrial motions, to appeal, or to

seek postconviction relief under § 2255. A probation

officer concluded that Ramirez’s conviction for aggravated kidnapping constituted a crime of violence
6 Nos. 09-3932, 10-2190 & 10-2689

for purposes of § 2L1.2(b)(1)(A)(ii) and accordingly increased his offense level by 16. Ramirez’s total offense

level of 21, coupled with a criminal-history category of

III, resulted in a guideline imprisonment range of 46 to

57 months.

Like Mandujano, Ramirez submitted a sentencing

memorandum urging the district court to reduce his

sentence based on the purported disparity arising from

the absence of a fast-track program in the Northern

District of Illinois. But Ramirez too failed to assert that

he would qualify for a reduction in a fast-track district.

And at sentencing his lawyer said nothing at all

about fast track. The government questioned, however,

whether Ramirez even would be eligible for fast-track

sentencing and insisted that, before the district court

could address any supposed sentencing disparity,

Ramirez first had to “show that he might qualify” for

the program in a fast-track district. The court, citing

precedent that we would later overturn in ReyesHernandez, concluded that it was forbidden from accepting Ramirez’s fast-track argument. The court added,

though, that if given discretion to accept Ramirez’s argument, it still would decline to impose a lower sentence

because Ramirez hadn’t “demonstrated that he would be

eligible for a fast-track disposition.” Ramirez was sentenced within the guidelines range to 50 months.

Our final defendant, Francisco Ocampo-Pineda, was

removed from the United States in 2002 after he was

convicted in Illinois of aggravated criminal sexual abuse.

720 ILCS 5/12-16(d). He returned without authorization
Nos. 09-3932, 10-2190 & 10-2689 7

and in 2004 was removed again. Then in 2009, police

in Chicago discovered Ocampo’s presence when they

stopped him for traffic violations. He was charged

with violating § 1326(a) and pleaded guilty 10 weeks

later. A probation officer increased Ocampo’s offense

level by 16 after concluding that his conviction under

§ 5/12-16(d) constituted a crime of violence for purposes

of § 2L1.2(b)(1)(A)(ii). Ocampo’s total offense level of 21

and criminal-history category of II yielded a guideline

imprisonment range of 41 to 51 months.

At sentencing, Ocampo principally argued that his

violation of § 5/12-16(d) was not a crime of violence

because, he insisted, he committed the offense merely by

touching a teenager’s breasts without any use or threat

of physical force. The district court disagreed. For purposes of § 2L1.2(b)(1)(A)(ii), the court explained, a crime

of violence includes any offense comprising “sexual

abuse of a minor.” See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

Looking to the letter of the Illinois statute, which forbids

“sexual conduct” with anyone from age 13 to age 16 by

a person who is at least 5 years older, 720 ILCS 5/12-

16(d), and defines “sexual conduct” to include touching

the victim’s genitals or breasts “for the purpose of sexual

gratification or arousal,” id. § 5/12-12(e), the court concluded that, as a matter of common sense, Ocampo’s

crime constituted sexual abuse of a minor.

In the alternative Ocampo argued that § 2L1.2(b)(1)(A)(ii)

ought not be applied in any case because, in his view, the

“severe” 16-level increase serves no penological purpose

and is not supported by empirical evidence. Again the
8 Nos. 09-3932, 10-2190 & 10-2689

district court was not convinced; brushing aside Ocampo’s

generalized attack on § 2L1.2(b)(1)(A)(ii), the court reasoned that, in this case, a sentence within the guidelines

range would appropriately reflect the seriousness of

Ocampo’s sexual-abuse crime and sufficiently deter

future § 1326(a) violations by others removed from the

country after committing aggravated felonies. Ocampo’s

dalliance with a teenager was “an extremely egregious

offense,” the court elaborated, and his returning to the

country after “harming the community through [his]

actions and [his] violence in the past” put the public at

risk and could not “be looked upon kindly.”

Finally, Ocampo implored the district court to sentence

him below his guideline range because of the absence of

a fast-track program in the Northern District of Illinois.

Lowering his prison term by the equivalent of 4 offense

levels, Ocampo proposed, would “eliminate any discrepancy” between his district of conviction and the fasttrack districts. This discrepancy arose, he asserted,

because he “is similarly situated to defendants who

receive fast track dispositions” and “almost certainly

would have received a reduced sentence” if he had been

picked up in a fast-track district. Ocampo pointed out

that he had pleaded guilty at his first opportunity and

had not filed any pretrial motions, and he attached to a

sentencing memorandum a conditional waiver of his

rights to file any future motions, appeal his sentence, or

mount a collateral attack on his sentence. This document, which is a form waiver that the Federal Defender

makes available on its website, conditions the relinquishment of rights on the defendant’s receiving “a sentence
Nos. 09-3932, 10-2190 & 10-2689 9

Ramirez too makes an ancillary argument. He points out that 1

the district court impermissibly ordered him to participate in

the Inmate Financial Responsibility Program. The government concedes that this directive was plain error because

sentencing courts do not have the authority to mandate participation in the program. United States v. Munoz, 610 F.3d 989,

997 (7th Cir. 2010). We agree and modify the judgment to

clarify that Ramirez’s participation is voluntary. See United

States v. Boyd, 608 F.3d 331, 335 (7th Cir.), cert. denied, 131

S. Ct. 647 (2010).

commensurate with the sentences received by

defendants in ‘fast-track’ jurisdictions.” Therefore,

Ocampo insisted, he “should receive the same 4 level

decrease in his sentence that would be afforded an

illegal reentry defendant under the fast track program.”

The district court did not comment on Ocampo’s fasttrack argument but did sentence him to 40 months,

1 month less than the low end of his 41-to-51-months

guideline imprisonment range.

II.

To resolve these appeals, we must hammer out the

details of the steps a defendant must take in order to

show that a sentence within his guidelines range would

create disparity with sentences imposed on similarly

situated defendants in fast-track districts. Before we can

address the defendants’ fast-track arguments, though, we

need to answer Ocampo’s concerns about the calculation

of his guidelines range. He insists that touching a teen- 1

ager’s breasts does not require the use or threat of physical
10 Nos. 09-3932, 10-2190 & 10-2689

force; thus, he contends, his prior conviction is not a

crime of violence subject to a 16-level increase under

§ 2L1.2(b)(1)(A)(ii). In support he cites the residual clause

of Application Note 1(B)(iii), which defines the term

“crime of violence” to include, in addition to 12 enumerated offenses, “any other offense under federal, state, or

local law that has as an element the use, attempted use,

or threatened use of physical force against the person

of another.” His point, presumably, is that § 5/12-16(d)

does not make the use or threatened use of force a statutory element, but this focus on what is necessary for a

crime to fall within the residual clause is misguided

because Application Note 1(B)(iii) explicitly enumerates

“sexual abuse of a minor” as a crime of violence. And

an enumerated offense always is a crime of violence for

purposes of § 2L1.2(b)(1)(A)(ii), whether or not the use

or threat of physical force is an element of the offense.

United States v. Angiano, 602 F.3d 828, 829 (7th Cir.),

cert. denied, 130 S. Ct. 3434 (2010); United States v.

Vasquez-Abarca, 334 F.3d 587, 588-89 (7th Cir. 2003).

So the question is whether aggravated criminal sexual

abuse, as defined by subsection (d) of § 5/12-16, constitutes “sexual abuse of a minor.” The offense proscribes any “act of sexual penetration or sexual conduct”

with a victim who is at least 13 years old, is no more than

16 years old, and is at least 5 years younger than the

defendant. “Both ‘sexual conduct’ and ‘sexual penetration’ describe intentional acts of a sexual nature.” People

v. Kolton, 848 N.E.2d 950, 959 (Ill. 2006). In the case of

“sexual penetration,” the act encompasses “any contact,

however slight, between the sex organ or anus of one
Nos. 09-3932, 10-2190 & 10-2689 11

person by an object, the sex organ, mouth or anus of

another person, or any intrusion, however slight, of any

part of the body of one person or of any animal or object

into the sex organ or anus of another person.” 720 ILCS

5/12-12(f). As for “sexual conduct,” the act includes “any

intentional or knowing touching or fondling by the

victim or the accused, either directly or through clothing,

of the sex organs, anus or breast of the victim or the

accused, or any part of the body of a child under 13 years

of age, or any transfer or transmission of semen by

the accused upon any part of the clothed or unclothed

body of the victim, for the purpose of sexual gratification or

arousal of the victim or the accused.” Id. § 5/12-12(e)

(emphasis added). When committed against a teenager

by a person who is at least 5 years older, both acts of

“sexual penetration” and acts of “sexual conduct” fall

squarely within the “ordinary, contemporary, and common meaning” of the phrase “sexual abuse of a minor.”

See United States v. Martinez-Carillo, 250 F.3d 1101, 1104-05

(7th Cir. 2001). All violations of § 5/12-16(d), then, are

crimes of violence for purposes of § 2L1.2(b)(1)(A)(ii), and

so the district court was correct to apply the 16-level

increase to Ocampo.

Ocampo also takes issue with the supposed dearth of

empirical data to justify the “harsh” 16-level increase if

an alien is removed after committing a crime of violence. Citing journal articles and critical opinions by

district courts, he insists that the “arbitrariness” of

§ 2L1.2(b)(1)(A)(ii) renders his sentence unreasonable.

But a district court need not even consider the argument

“that a guideline is unworthy of application in any case
12 Nos. 09-3932, 10-2190 & 10-2689

because it was promulgated without adequate deliberation.” United States v. Aguilar-Huerta, 576 F.3d 365, 367-68

(7th Cir.), cert. denied sub nom. Shareef v. United States,

130 S. Ct. 811 (2009). And the district court’s thoughtful

explanation of Ocampo’s sentence puts to rest any suggestion that the guideline produced an unreasonable

outcome in his case. See United States v. Moreno-Padilla, 602

F.3d 802, 813-14 (7th Cir. 2010), cert. denied, 131 S. Ct. 897

(2011).

Having resolved these preliminary matters, we turn

to the question at the heart of these appeals: What evidentiary showing must a defendant make before a

district court is obliged to consider his request for a

lower sentence to account for the absence of a fast-track

program in that judicial district? At the time these defendants were sentenced, of course, the district courts were

not permitted to consider the absence of a fast-track

program in crafting a sentence under 18 U.S.C. § 3553(a).

See United States v. Galicia-Cardenas, 443 F.3d 553, 555

(7th Cir. 2006); United States v. Martinez-Martinez, 442

F.3d 539, 543 (7th Cir. 2006). It’s now clear that, to the

contrary, district judges may take into account any sentencing disparity arising from the absence of a fast-track

program. Reyes-Hernandez, 624 F.3d at 417. But ReyesHernandez also emphasizes that, before a district court

will be obligated to evaluate whether a lower sentence

is warranted by the absence of a fast-track program,

the defendant must first establish that he would “have

been eligible for fast-track status had it been available

and show that he would have in fact pursued the option.” Id. at 420. Even before Reyes-Hernandez we had
Nos. 09-3932, 10-2190 & 10-2689 13

made the same point in United States v. Olmeda-Garcia, 613

F.3d 721, 724 (7th Cir. 2010), which explains that a defendant who alludes to the benefits available in fast-track

districts but never tries “to demonstrate that he would

be eligible” in one of those districts cannot complain on

appeal if the sentencing court ignores this argument in

mitigation. See also United States v. Arrelucea-Zamudio,

581 F.3d 142, 156-57 (3d Cir. 2009) (“To justify a reasonable

variance by the district court, a defendant must show at

the outset that he would qualify for fast-track disposition

in a fast-track district.”); United States v. Jiménez-Beltre,

440 F.3d 514, 519 (1st Cir. 2006) (en banc) (holding that

district court need not respond to fast-track argument

unless defendant provides a factual basis “for assessing

the extent of the disparities”). This requirement of a

foundation for a claim of fast-track disparity simply

recognizes that every defendant who asserts that his or

her personal circumstances warrant leniency is compelled

to supply a factual predicate for the contention. See,

e.g., United States v. Grober, 624 F.3d 592, 599 (3d Cir.

2010); United States v. Felix, 561 F.3d 1036, 1044 (9th Cir.

2009); United States v. Quiñones-Medina, 553 F.3d 19, 22 (1st

Cir. 2009); United States v. Keleta, 552 F.3d 861, 866 (D.C.

Cir. 2009); United States v. Diaz, 533 F.3d 574, 578 (7th

Cir. 2008); United States v. Tahzib, 513 F.3d 692, 695 (7th

Cir. 2008); United States v. McGee, 494 F.3d 551, 557-58

(6th Cir. 2007); United States v. Acosta, 474 F.3d 999, 1003-

04 (7th Cir. 2007); United States v. Cunningham, 429 F.3d

673, 679 (7th Cir. 2005).

To receive leniency in any fast-track district, a defendant

must, as a starting point, promptly plead guilty, agree to
14 Nos. 09-3932, 10-2190 & 10-2689

a factual basis for the offense, and waive his rights to file

pretrial motions, to appeal, and to seek postconviction

relief under § 2255. See Memorandum from the U.S.

Attorney General to U.S. Attorneys (Sept. 22, 2003),

available at http://www.justice.gov/ag/readingroom/

ag-092203.pdf. See also Reyes-Hernandez, 624 F.3d at 412;

Olmeda-Garcia, 613 F.3d at 724. Beyond these universal

requirements, however, the United States Attorneys in

the judicial districts that offer fast-track sentencing have

not adopted uniform eligibility criteria. The Sentencing

Commission has taken the position that district

courts should not reduce the sentences of defendants

who participate in fast-track programs by more than the

equivalent of 4 offense levels, U.S.S.G. § 5K3.1, but

the guidelines do not catalogue the eligibility criteria

employed in the 16 fast-track programs. A compilation

of those criteria was prepared by the United States and

submitted as a sentencing exhibit in United States v.

Medrano-Duran, 386 F. Supp. 2d 943 (N.D. Ill. 2005), and

that timeworn document—which may or may not still

be accurate, and which does not include any information about the two newest programs—is frequently cited

in distinguishing between the fast-track districts. See FastTrack Dispositions District-by-District Relating to Illegal

Reentry Cases, reprinted in 21 FED. SENT’G REP. 339 (2009).

What the document shows is that, as of 2005, some

districts did offer a reduction equivalent of 4 offense

levels to all defendants who participated in a fast-track

program. But other districts, like the District of Idaho,

the District of Nebraska, and the Southern District of

Texas, offer an eligible defendant at most a reduction
Nos. 09-3932, 10-2190 & 10-2689 15

of 2 levels; the Western District of Texas offers only 1 level.

Id. at 344, 347. And still other districts employ not a

departure-based program but a charge-bargain program

in which the defendant pleads guilty, typically to two

counts of improper entry by an alien, 8 U.S.C. § 1325,

and receives a fixed sentence in return. In most of these

districts, an eligible defendant’s sentence depends on

whether he is subject to a 16-level increase under

§ 2L1.2(b)(1)(A); if so, he will receive a term of 30 months

no matter what his sentencing range otherwise would

have been. Id. at 346, 347-48. In addition to these variations in the types of programs offered, at least one

district conditioned eligibility for its fast-track program on

the defendant’s criminal-history category, while most

others varied the available sentence reduction according

to the defendant’s offense level under § 2L1.2. Whether

the offense of conviction was a repeat violation of § 1326,

whether the defendant was on supervised release at

the time of the current offense, and the age and severity

of the defendant’s earlier crimes are typical factors that

can affect fast-track eligibility.

We can easily dispose of Mandujano’s and Ramirez’s

appeals because neither one made an effort to show that

he met the minimum eligibility criteria for fast-track

sentencing, much less that he would have qualified for

one of the 16 fast-track programs. In fact, Mandujano’s

lawyer conceded that his client had not fulfilled the

requirements that would have served as the inducement

for the government’s offer of fast-track relief. As for

Ramirez, in his sentencing memorandum he merely

speculated that he “may have been able to receive the
16 Nos. 09-3932, 10-2190 & 10-2689

benefit of a fast-track program” if sentenced in another

district. He did not try to establish a factual predicate

for that inconclusive guess, nor had he waived his rights

to file pretrial motions, to file a direct appeal, or to attack

his conviction under § 2255. And when the government

responded by casting doubt on Ramirez’s eligibility for

fast-track sentencing, Ramirez failed to contest that

proposition, filing no written reply and remaining

silent on the topic at his sentencing hearing. In short,

Mandujano’s and Ramirez’s “disparity” arguments were

illusory, and illusory arguments do not require a response from the district court.

Ocampo’s appeal is trickier. For one thing, the government has confessed error and advocates a remand for

resentencing in light of Reyes-Hernandez. But the government’s confession is not binding on us, see United States

v. Cruz, 595 F.3d 744, 745 (7th Cir.), cert. denied, 130 S. Ct.

3437 (2010); United States v. Anderson, 547 F.3d 831, 833

(7th Cir. 2008); United States v. Demaree, 459 F.3d 791,

793 (7th Cir. 2006), and since the threshold qualification

predates Reyes-Hernandez, see Olmeda-Garcia, 613 F.3d at

724, we cannot understand the government’s unwillingness to defend the outcome it sought and won from the

district court. On the other hand, unlike Mandujano and

Ramirez, Ocampo at least made a minimal effort to position himself like a defendant in a fast-track district. But

did he go far enough? We have yet to explore exactly

what a defendant needs to do to show that he is

similarly situated to an eligible defendant in a fast-track

district. Before argument we put that question to the

parties and asked them to file supplemental statements

making their best case.
Nos. 09-3932, 10-2190 & 10-2689 17

As it turns out, Ocampo and the government are materially at odds. Ocampo emphasizes that he pleaded guilty

at the first opportunity after arraignment and agreed to

the factual basis proffered by the government. He also

touts that he attached to his sentencing memorandum

a waiver of his rights to file pretrial motions, appeal his

sentence, and mount a collateral attack on his conviction

so long as he received “a sentence commensurate with

the sentences received by defendants in ‘fast-track’ jurisdictions.” Thus, he insists, he “did everything that he

reasonably could be expected to do to establish that he

was similarly situated to defendants in Fast-Track districts.” As for our question how a sentencing judge

should quantify a reduction in the defendant’s sentence

given the significant variations among the fast-track

programs, Ocampo ducks the matter entirely, insisting

that this court needn’t bother weighing in and instead

should just remand the case to let the district court decide the question in the first instance. But that is no

answer to the question we posed; the very point of directing further briefing was to assist us in giving

guidance to the district courts.

The government, meanwhile, maintains that the defendant must unconditionally waive his rights—and must

do so at the time he pleads guilty. And the government insists that the defendant must make a “rigorous

showing” not only that he generally is eligible for fasttrack sentencing but also that “he meets all the criteria

for a specific fast-track program currently employed in

another district.” Because it is the defendant’s burden

to establish an argument in mitigation, the govern-
18 Nos. 09-3932, 10-2190 & 10-2689

ment continues, “he cannot invoke this basis for a

variance unless he can establish that defendants with

comparable criminal histories and backgrounds do in

fact receive such reduced sentences in other districts.”

And, finally, the government proposes that the district

court ought to determine the degree of the defendant’s

sentence reduction, if any, with reference to whatever

“arguments based on both policy and facts” that the

government has put forth in that particular case. Those

arguments, the government suggests, could include the

fact that each district’s fast-track program is specifically

“tailored to allow efficient prosecutions” in that district,

as well as the fact that the government receives substantially less benefit from a defendant who shows only that

he would have participated in a fast-track program had

it been available.

We conclude that the government has the better response. The showing that Ocampo has proposed would

not establish similarity to an eligible defendant in a fasttrack district. First, Ocampo contends that it’s enough to

submit a waiver of his rights conditioned on receiving

what he deems to be “a sentence commensurate with

the sentences received by defendants in ‘fast-track’ jurisdictions.” But that meaningless condition amounts

to an unenforceable waiver; the sentencing benefits

afforded defendants in fast-track districts vary widely, so

even if the district court had given Ocampo a break to

account for a perceived fast-track disparity, Ocampo still

could argue that his conditional appeal waiver did not

become operative because the sentence he received

wasn’t “commensurate” with sentences in fast-track
Nos. 09-3932, 10-2190 & 10-2689 19

districts. And then there is always the question whether

a unilateral waiver that was not made as part of a

plea agreement or discussed during the plea colloquy,

see FED. R. CRIM. P. 11(b)(1)(N), can ever be binding,

cf. United States v. Sura, 511 F.3d 654, 661-63 (7th Cir.

2007) (holding that sentencing court plainly erred by

neglecting to inform defendant during plea colloquy

that his plea agreement included appeal waiver). So

Ocampo’s offer to relinquish his rights rings hollow. Not

only that, but a defendant in a fast-track district must

give up those rights immediately when he enters his

guilty plea, not a couple months down the road at sentencing, like Ocampo. A defendant who wants to claim

parity with an eligible defendant in a fast-track district

must be prepared to accept the detriments that come

with that status.

The second quarrel we have with Ocampo’s response

has to do with his contention that a defendant must

show only that he meets the universal requirements for

fast-track eligibility without regard to how the program

is employed in any particular judicial district. In fact, a

defendant who ignores the additional criteria that differ

between programs by definition falls short of showing

that he is similarly situated to an eligible defendant

in any of the fast-track districts. And—as we hope

we’ve driven home by now—if the defendant can’t

show that he actually would be eligible to receive a fasttrack benefit in at least one judicial district, then his

“disparity” argument is illusory.

Finally, although the government has suggested reasonable considerations for a sentencing judge to keep in
20 Nos. 09-3932, 10-2190 & 10-2689

mind when trying to evaluate and quantify a claim of

“disparity,” we think that the government’s position

omits what is probably the most useful information: a

thorough account of the likely benefit in each district

where the defendant would be eligible for a fast-track

sentence, as well as a candid assessment of the number

of fast-track programs for which he would not be eligible. This information is essential for a sentencing

court to appreciate the extent of the disparity, if any, that

would result if the defendant was not given a sentencing break. In this case, for example, Ocampo would

have been eligible for a break in a few of the fast-track

districts, but the 40-month term he received falls

squarely within the “reduced” imprisonment range for

fast-track defendants in at least 25 percent of the programs. In three of these districts—the District of Idaho,

the District of Nebraska, and the Southern District of

Texas—Ocampo could have received at most a 2-level

decrease, which would have produced a guidelines

range of 33 to 41 months; in the Western District of Texas,

meanwhile, he could have received only a 1-level

decrease, resulting in a range of 37 to 46 months. Ocampo

should have disclosed this information to the district

court rather than speculating—wrongly, as it turns

out—that he would have gotten a 4-level decrease in

every last one of the fast-track districts.

So to summarize, a defendant claiming entitlement to

a lower sentence because of a perceived fast-track “disparity” must promptly plead guilty, agree to the factual

basis proffered by the government, execute an enforceable waiver of specific rights before or during the
Nos. 09-3932, 10-2190 & 10-2689 21

plea colloquy, establish that he would receive a fast-track

sentence in at least one district offering the program, and

submit a thorough account of the likely imprisonment

range in the districts where he is eligible, as well as a

candid assessment of the number of programs for which

he would not qualify. Unless the defendant complies

with each of these steps, the sentencing court will be

free to reject the argument without comment. And given

these preconditions to a colorable claim of fast-track

disparity, we reject the government’s confession of error

in Ocampo’s appeal. The confession is difficult to

reconcile with Reyes-Hernandez and Olmeda-Garcia—and

harder still to reconcile with the government’s supplemental statement, which persuasively proposes that a

defendant can show he is similarly situated to an eligible

defendant in a fast-track district only by offering an

enforceable waiver of his rights at the time he pleads

guilty and establishing that he would be eligible for a fasttrack benefit in at least one other district that offers such

a program. Ocampo did neither. And for that reason

the district court did not commit error by saying

nothing in response to his illusory fast-track argument.

See Reyes-Hernandez, 624 F.3d at 420; Olmeda-Garcia, 613

F.3d at 724; Arrelucea-Zamudio, 581 F.3d at 156-57.

This conclusion is not altered by the fact that ReyesHernandez was decided after Ocampo was sentenced.

Reyes-Hernandez was argued in November 2009, four

months before Ocampo filed his sentencing memorandum

and seven months before he was sentenced. Indeed,

Ocampo anticipated the winning argument in ReyesHernandez when he urged the district court to abandon
22 Nos. 09-3932, 10-2190 & 10-2689

our decisions in Galicia-Cardenas and Martinez-Martinez

in light of the Supreme Court’s holding in Kimbrough v.

United States, 552 U.S. 85 (2007). In support he cited the

Third Circuit’s decision in Arrelucea-Zamudio, which, like

Reyes-Hernandez, requires a defendant to show that he

would be eligible for a benefit in a fast-track district

before he can expect a sentencing court to respond to his

disparity argument. 581 F.3d at 156-57. And his submission of a form waiver of his rights from the Federal Defender’s website shows he knew he needed to establish

that he actually would have been eligible for fast-track

sentencing. A defendant who urged the district court to

adopt the reasoning that eventually prevailed in ReyesHernandez doesn’t deserve a “do-over” just because

he neglected to follow through on his own argument.

Vazquez-Pita, 411 F. App’x at 891; Morant-Jones, 411

F. App’x at 887; Abasta-Ruiz, 409 F. App’x at 950. Ocampo

wasn’t caught off guard by this threshold qualification;

it’s just that his attempt to carry his burden fell far short.

Having said what we have said, we recognize that

establishing that a defendant in this circuit would

have received a fast-track benefit in a district that offers

one can be a little complicated. We commend Ocampo’s

lawyer for taking several positive steps, with an assist

from the Federal Defender’s helpful website, toward

establishing his client’s eligibility for the program. To

cut through all the muss and fuss in future cases, we

urge the U.S. Attorneys’ offices in this circuit to work

with defendants seeking fast-track consideration and to

willingly stipulate to sentencing judges that defendants

are eligible if that appears to be the case.
Nos. 09-3932, 10-2190 & 10-2689 23

To wrap up, we conclude that the fast-track arguments

made by all three of these defendants were illusory and

could be passed over in silence. Accordingly, we AFFIRM

each of their sentences; Ramirez’s sentence, however, is

MODIFIED to clarify that his participation in the Inmate

Financial Responsibility Program is voluntary.

7-20-11