Of the District of Puerto Rico, sitting by designation. *

 United States Court of Appeals

For the First Circuit

No. 06-1189

UNITED STATES OF AMERICA,

Appellee,

v.

FALCÓN DIÓMEDES ANDÚJAR-ARIAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

 Torruella and Lipez, Circuit Judges,

and José A. Fusté, District Judge. *

Catherine K. Byrne for appellant.

Cynthia A. Young, Assistant United States Attorney, with

whom Michael J. Sullivan, United States Attorney, was on brief for

appellee.

November 19, 2007
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LIPEZ, Circuit Judge. Falcón Diómedes Andújar-Arias

("Andújar") claims that his sentence for illegal reentry after

deportation was unlawful because the district court declined to

account for "unwarranted" sentence disparities as required by 18

U.S.C. § 3553(a)(6). He claims that these "unwarranted"

disparities result from the operation of fast-track sentencing

programs in other districts. These programs allow some districts

whose resources are strained by high immigration workloads to offer

diminished charges or sentences in immigration cases in exchange

for a defendant's agreement to waive certain procedural rights. In

addition, Andújar argues that fast-track programs violate his

constitutional right to equal protection. Finally, he argues that

the district court erred in treating his prior convictions as

sentencing factors. We reject each of these contentions and affirm

his sentence.

I.

Andújar was born in the Dominican Republic in 1968 and

entered the United States when he was about eighteen years old to

join his mother, who had already immigrated to Peabody,

Massachusetts. Shortly thereafter, Andújar became addicted to

cocaine and was convicted on cocaine distribution charges in 1993.

He was deported in 1996, after serving his sentence.

In 1998, Andújar returned to the United States and

assumed the name of "Dwight Braswell," an identity he maintained
-3-

until the time of his arrest in this case. By 1999, he had become

addicted to heroin and was convicted for three heroin offenses

between April 1999 and November 2000. According to the PreSentence Report ("PSR") prepared by the Probation Office in

connection with the current illegal reentry charge, Andújar devoted

himself to recovering from his addictions following his arrest in

November 2000. He signed himself into a seven-day detoxification

program and then joined an outpatient program with weekly meetings;

he became an active member of the Church of the Living God in

Woburn, Massachusetts; and he secured a job working for a fellow

parishioner repairing floors.

Despite these positive developments, Andújar was

convicted of indecent assault and battery in April 2002.

Fingerprints taken in connection with that conviction revealed his

true identity; as a result, he was subsequently indicted for

illegal reentry into the United States after having been deported.

See 8 U.S.C. §§ 1326(a)(1), (b)(2). Andújar entered a guilty plea

to that charge in July 2005.

The PSR calculated a base offense level of "24," and

recommended a three-level reduction for acceptance of

responsibility. Using a criminal history category of "V," the PSR

concluded that the applicable Guidelines sentencing range was 70-87

months of imprisonment. Andújar did not object to the PSR or its

Guidelines calculations. However, he submitted a sentencing
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memorandum to the district court arguing that: (1) the court could

not use prior convictions that were not charged in the indictment

or admitted by him in determining his sentence; and (2) a belowGuidelines sentence of forty-eight months would be adequate to

achieve the purposes of sentencing prescribed by statute. See 18

U.S.C. § 3553(a) (requiring the court to "impose a sentence

sufficient, but not greater than necessary" to meet certain

sentencing goals and which enumerates a number of factors that the

court "shall consider" in arriving at that sentence). Andújar

based his request on several grounds, including his "extraordinary"

pre-arrest rehabilitation and the need to avoid unwarranted

sentence disparities resulting from the absence of a fast-track

program in the District of Massachusetts. Fast-track programs in

other parts of the country might allow a defendant in Andújar's

circumstances to receive a reduced sentence in exchange for a

guilty plea to the charged immigration offense (or to a lesser

reentry charge) and a waiver of certain procedural rights. We

describe these programs in detail in Section II, infra.

At the sentencing hearing, the district court rejected

all of Andújar's contentions. It explained that the Supreme

Court's decision in Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998), allows prior felony convictions to be used as

sentencing factors so long as they are proven to the court by a

preponderance of the evidence. The court found that the Probation
 Although the Court uses the term "departure" in reference to 1

the defendant's request for a below-Guidelines sentence, in fact

the defendant was requesting a variance. The distinction between

departures and variances is a product of the Supreme Court's

decision in United States v. Booker, 543 U.S. 220 (2005), which

made the Sentencing Guidelines advisory rather than mandatory.

Courts may still justify sentences outside the recommended

Guidelines range by reference to Guidelines "departure" provisions.

When a court imposes a sentence outside the Guidelines range based

on its assessment of the section 3553(a) factors - without regard

to specific Guidelines departure provisions - the deviation is

considered a variance.

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Office's investigation was sufficient to satisfy that standard.

The court also rejected defendant's fast-track disparities

argument, concluding, based on this court's previous decision in

United States v. Martin, 221 F.3d 52 (1st Cir. 2000), that the

different sentencing standards of different districts "was not . .

. [a] sufficient justification for a departure." Although the 1

Court acknowledged Andújar's pre-2002 arrest self-rehabilitation,

it found that his criminal history and persistent use of a false

identity – even throughout his alleged rehabilitation –

counterbalanced that rehabilitation and made a variance

unwarranted. Considering all relevant factors, the court announced

a sentence of 70 months of imprisonment – at the bottom of the

Guidelines range – to be followed by two years of supervised

release.

Andújar now appeals, claiming that the court erred in

refusing to consider sentence disparities engendered by the

presence of fast-track programs in some districts and not others.
-6-

By failing to consider these factors, Andújar argues, the district

court committed an error of law, making his sentence per se

unreasonable. He also argues, for the first time on appeal, that

fast-track sentencing programs – as currently applied – violate his

constitutional right to equal protection under the Fifth and

Fourteenth Amendments. Finally, he argues that recent decisions by

the Supreme Court cast doubt on the continuing validity of

Almendarez-Torres.

II.

We review constitutional questions de novo. Goodrich v.

Hall, 448 F.3d 45, 49 (1st Cir. 2006). We also review claims of

legal error in sentencing de novo, United States v. Wallace, 461

F.3d 15, 33 (1st Cir. 2006), but we review the final sentence for

reasonableness, regardless of whether it falls inside the

Sentencing Guidelines range, as it does here, or outside. United

States v. Martínez-Vives, 475 F.3d 48, 54 (1st Cir. 2007).

Andújar contends that the district court committed legal

error in rejecting his argument that the availability of fast-track

sentencing programs in some districts creates "unwarranted"

sentence disparities which compelled a below-Guidelines sentence in

this case. Such inconsistencies must be taken into account, he

argues, under 18 U.S.C. § 3553(a)(6), which requires courts to

consider "the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of
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similar conduct." Andújar's unwarranted disparities argument has

three components: first, that fast-track programs generally create

unwarranted sentence disparities as defined by § 3553(a)(6);

second, that the Attorney General's implementation of fast-track

programs has fallen outside Congress's mandate, thereby creating

unwarranted disparities; and third, that charge-bargaining fasttrack programs, both inherently and as they have been implemented

in districts around the country, contravene Congressional intent

and create unwarranted disparities. Andújar asks us to conclude

that his sentence was unreasonable as a matter of law because the

district court failed to vary his sentence from the Guidelines

range based on these disparities.

The government contends that the district court did

consider Andújar's fast-track argument, but rejected it on the

basis that such disparities are not "unwarranted." It further

argues that disparities arising from Congressionally approved fasttrack programs cannot be considered "unwarranted" under the

statute, and that sentence variations arising from chargebargaining systems are a product of executive discretion and, as

such, provide no basis for varying from the Guidelines sentence. 

Although Andújar says that he only seeks from us a

directive to the district court that it may consider in its

sentencing decision the unwarranted sentencing disparities created

by the fast-track programs, that is not the logic of his arguments.
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Taken to their logical conclusion, Andújar's arguments would compel

us to find that any sentence in an illegal reentry case that failed

to account for fast-track disparities reflected an unwarranted

sentencing disparity and hence was per se unreasonable. In

essence, he asks us to find that district courts must, as a matter

of law, account for such disparities.

We reach the opposite conclusion. We agree with the

government that the limited disparities arising from approved fasttrack programs reliant on downward sentence departures, as

contemplated by Congress, are permissible. We also find that fasttrack programs using charge-bargaining measures rather than

downward sentence departures are within the discretion of the

United States Attorneys and additionally have been authorized by

the Attorney General. Therefore, the disparities resulting from

fast-track programs, whether a product of downward departures or

charge-bargaining programs, are "warranted" and may not be

considered by a district judge in sentencing as a basis for a

variance from a Guidelines sentence pursuant to § 3553(a)(6).

In this case, the district court did not commit legal

error by declining to adjust Andújar's sentence on the basis of

such disparities. We begin our analysis by briefly discussing the

background of fast-track programs.
 8 U.S.C. §§ 1326(a)-(b) generally prohibit the crime of 2

illegal reentry. Section 1326(b) imposes additional penalties for

the illegal reentry offense based on the prior criminal history of

the defendant. Section 1326(b)(1) applies additional penalties to

an individual whose "removal was subsequent to a conviction for

commission of three or more misdemeanors involving drugs, crimes

against the person, or both, or a felony (other than an aggravated

felony)" and § 1326(b)(2) applies to an individual whose "removal

was subsequent to a conviction for commission of an aggravated

felony." In 1994, Congress increased the maximum penalties for

violations of § 1326(b)(1) and § 1326(b)(2) from 5 and 15 years to

10 and 20 years, respectively.

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A. Origins of the Fast-Track Program

The first fast-track program was a product of

prosecutorial discretion rather than Congressional legislation.

See Rebecca Schendel Norris, Fast-Track Disparities in the PostBooker World: Re-examining Illegal Reentry Sentencing Policies, 84

Wash. U. L. Rev. 747, 750 (2006) (hereinafter "Schendel Norris").

In the mid-1990s, the United States Attorney's Office for the

Southern District of California allowed some offenders charged with

illegal reentry under 8 U.S.C. § 1326(b) – which carried a maximum

sentence of five or fifteen years, depending on the defendant's

criminal history – to plead guilty to a lesser reentry offense,

§ 1326(a) – which carried only a two-year maximum sentence – if the

offender agreed to waive indictment, plead guilty, waive appeal of

all sentencing issues, stipulate to the two-year sentence, and

further agreed not to seek downward adjustments or departures.2

Id.; see United States v. Estrada-Plata, 57 F.3d 757, 759 (9th Cir.

1995). Similar programs were adopted by federal prosecutors in
 The Sentencing Commission complied, establishing U.S.S.G. 3

§ 5K3.1, which mirrored the PROTECT Act's language. Section 5K3.1

reads:

Upon motion of the Government, the court may depart

downward not more than 4 levels pursuant to an early

disposition program authorized by the Attorney General of

the United States and the United States Attorney for the

district in which the court resides.

U.S.S.G. § 5K3.1.

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Texas, New Mexico, Arizona and in other California districts.

United States v. Martínez-Flores, 428 F.3d 22, 25 (1st Cir. 2005).

In 2003, Congress passed the Prosecutorial Remedies and

Other Tools to End the Exploitation of Children Today (PROTECT)

Act, Pub. L. No. 108-21, 117 Stat. 650 (2003) (codified in sections

18, 28, and 42 of the U.S. Code), which explicitly authorizes fasttrack programs. The Act seeks to "substantially reduce[]" the

"incidence of downward departures" in sentencing, PROTECT Act, §

401 (m)(2)(A), 117 Stat. at 675, and also creates an explicit,

regulated exception for fast-track programs. Id. § 401 (m)(2)(B),

117 Stat. at 675. To that end, the Act required the U.S.

Sentencing Commission to promulgate a "policy statement authorizing

a downward departure of not more than 4 levels if the Government

files a motion for such departure pursuant to an early disposition

program authorized by the Attorney General and the United States

Attorney." Id. Thus, the language of the PROTECT Act suggests 3

that Congress intended to authorize a narrow departure scheme for
 Although this is a House Report only, the Feeney Amendment 4

was itself narrowed by the House-Senate Conference Committee, with

the portion addressing fast-track programs remaining in the final

signed version. See Stephanie Bibas, The Feeney Amendment and the

Continuing Rise of Prosecutorial Power to Plea Bargain, 94 J. Crim.

L. & Criminology 295, 295-96 (2004).

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fast-track programs while otherwise restricting the use of downward

departures.

There is additional evidence of Congress's intent to

establish a narrow exception in a House of Representatives report

issued prior to the enactment of the PROTECT Act, in connection

with a companion bill, the Child Abduction Prevention Act of 2003

(also known as the "Feeney Amendment"). The House Report to the

Feeney Amendment endorsed a formal program of limited departures

from the Sentencing Guidelines for "those particular classes of

offenses (such as illegal reentry) whose high incidence within the

district has imposed an extraordinary strain on the resources of

that district as compared to other districts." See 149 Cong. Rec.

H2405, H2421 (daily ed. Mar. 27, 2003) (amendment offered by Rep.

Feeney). The report explicitly acknowledged that sentence

disparities would result between fast-track districts and non-fast

track districts; however, it specified that such disparities "do[]

not confer authority to depart downward on an ad hoc basis in

individual cases." Id. at H2421; see, e.g., United States v.

Mejía, 461 F.3d 158, 163 (2nd Cir. 2006).4
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A contemporaneous report to Congress from the U.S.

Sentencing Commission also noted the tension between § 3553(a) and

the PROTECT Act, §§ 401(m)(2)(A) and (B), explicitly highlighting

that sentencing disparities would result:

Defendants sentenced in districts without

authorized early disposition programs . . .

can be expected to receive longer sentences

than similarly-situated defendants in

districts with such programs. This type of

geographical disparity appears to be at odds

with the overall . . . goal of reducing

unwarranted sentencing disparity . . . .

Furthermore, sentencing courts in districts

without early disposition programs,

particularly those in districts that adjoin

districts with such programs, may feel

pressured to employ other measures--downward

departures in particular--to reach similar

sentencing outcomes for similarly situated

defendants. This potential response by

sentencing courts could undermine the goal of

the PROTECT Act to reduce the incidence of

downward departures.

U.S. Sentencing Commission, Report to Congress: Downward Departures

from the Federal Sentencing Guidelines at 66-67 (Oct. 2003),

available at http://www.ussc.gov/departrpt03/departrpt03.pdf. The

report concluded that review of fast-track program performance

might be appropriate in the future to provide additional guidance

to the courts on these issues. Id. at 67.

Shortly after Congress passed the PROTECT Act, and

pursuant to the legislation, the Attorney General issued a

memorandum outlining the elements required for any fast-track
 Among these requirements, a defendant must agree to: accept 5

the factual basis of the charge against him, forgo filing pre-trial

motions described in Federal Rule of Criminal Procedure 12(b)(3),

waive appeal and waive collateral challenges under 28 U.S.C. § 2255

(except on the issue of ineffective assistance of counsel).

Memorandum from John Ashcroft, Attorney General, to United States

Attorneys 2 (September 22, 2003), reprinted in 16 Fed. Sent. R. 134

(Dec. 2003) (hereinafter "Ashcroft Memorandum").

 The memo stated that fast-track programs were appropriate 6

where:

(1) the district confronts an exceptionally large number

of a specific class of offenses within the district, and

failure to handle such cases on an expedited or "fasttrack" basis would significantly strain prosecutorial and

judicial resources in the district; or 

(2) the district confronts some other exceptional local

circumstance with respect to a specific class of cases

that justifies expedited disposition of such cases; ...

Ashcroft Memorandum, supra, at *2.

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program and explaining the conditions necessary to obtain the 5

Attorney General's authorization for such a program. A month 6

later, twenty-six fast-track applications were submitted in fifteen

districts; thirteen specifically addressed the crime of illegal

reentry. Schendel Norris, supra, at 757. Those approved were:

Arizona, Idaho, Nebraska, New Mexico, North Dakota, Oregon, all

four California districts, the Southern and Western Districts of

Texas, and the Western District of Washington. Id. at 757-58. At

the time of Andújar's sentencing, Massachusetts had no fast-track

program.
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B. The Statutory Challenge

Whether sentence disparities attributable to the

existence of fast-track programs are "unwarranted" is a question of

first impression in this circuit. Every other circuit except the

D.C. Circuit has addressed this issue, and each has reached the

same conclusion. Because sentence disparities resulting from the

presence of fast-track programs in some districts and the absence

thereof in others are not unwarranted, a court's failure to adjust

a sentence to compensate for such disparities does not make that

sentence unreasonable. Mejía, 461 F.3d at 163; United States v.

Vargas, 477 F.3d 94, 98-99 (3rd Cir. 2007); United States v. PerezPena, 453 F.3d 236, 243 (4th Cir. 2006); United States v. AguirreVilla, 460 F.3d 681, 683 (5th Cir. 2006); United States v.

Hernandez-Fierros, 453 F.3d 309, 314 (6th Cir. 2006); United States

v. Martínez-Martínez, 442 F.3d 539, 542 (7th Cir. 2006); United

States v. Sebastián, 436 F.3d 913, 916 (8th Cir. 2006); United

States v. Marcial-Santiago, 447 F.3d 715, 718 (9th Cir. 2006);

United States v. Martínez-Trujillo, 468 F.3d 1266, 1268-69 (10th

Cir. 2006); United States v. Anaya Castro, 455 F.3d 1249, 1252

(11th Cir. 2006). The Fourth Circuit has taken an additional step,

finding that a district court's below-Guidelines sentence was

unreasonable as a matter of law because the court's justification

for such variance, namely a desire to avoid fast-track sentence

disparities, was improper. Pérez-Pena, 453 F.3d at 241 ("If a
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district court provides an inadequate statement of reasons or

relies on improper factors in imposing a sentence outside the

properly calculated advisory guideline range, the sentence will be

found unreasonable and vacated."). In reaching these conclusions,

courts have relied on the same two-step rationale: "Congress must

have thought the disparity warranted when it authorized early

disposition programs without altering § 3553(a)(6)," Aguirre-Villa,

460 F.3d at 683, and it is "within the province of the policymaking

branches of government to determine that certain disparities are

warranted, and thus need not be avoided." Sebastián, 436 F.3d at

916.

While we have not squarely addressed this issue before,

we have twice expressed in dicta our view that sentence disparities

arising from fast-track programs are not "unwarranted." See United

States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en

banc) ("[The existence of fast-track programs] certainly permits

disparities but they are the result of a congressional choice made

for prudential reasons, implicitly qualifying the general aim of

equality."); United States v. Martínez-Flores, 428 F.3d 22, 30 n.3

(1st Cir. 2005) ("It is arguable that even post-Booker, it would

never be reasonable to depart downward based on disparities between

fast-track and non-fast-track jurisdictions given Congress' clear

(if implied) statement in the PROTECT Act provision that such

disparities are acceptable."). However, in each case, we did not
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have to reach the ultimate substantive issue. Jiménez-Beltre, 440

F.3d at 519 ("[T]he district court ruled that the defendant had not

furnished a factual basis for assessing the extent of the

disparities or provided a reason why to take them into account. .

. . In declining to alter the sentence on this ground, the district

court did not act unreasonably."); Martínez-Flores, 428 F.3d at 30

n.3 (dismissing the argument on plain error grounds). We now join

the other circuit courts and make that holding explicit. Because

Congress has authorized fast-track programs with the understanding

that such programs would create sentencing disparities, we find

that such disparities are not unwarranted as a matter of law.

Therefore, a sentence imposed without consideration of such

disparities under § 3553(a) is not legally erroneous or, as

defendant would put it, per se unreasonable. In passing the

PROTECT Act, Congress determined that the benefits of maintaining

high prosecution rates and relieving the case management burdens on

many districts outweighed the costs of lower sentences. See,

e.g., Martínez-Martínez, 442 F.3d at 542. As a court we are not in

a position to second guess that determination.

Seeking to convince us otherwise, Andújar argues that

whether disparities are warranted within the context of

§ 3553(a)(6) must depend only upon the nature of the offense and

the offender, and that the needs of the government – including the

burdens placed upon its resources by the high incidence of
 Moreover, defendant overstates his argument. Even before 7

the adoption of the PROTECT ACT, Congress had determined that

sentencing disparities are warranted in some circumstances to

address government resources and administrative concerns. For

example, where the government finds that a specific defendant has

assisted in other prosecutions, saving the prosecuting attorneys

time and resources, Congress has explicitly allowed a departure

from the statutorily required minimum sentence. 18 U.S.C. §

3553(e) (2003) ("Upon motion of the Government, the [district]

court[s] shall have the authority to impose a sentence below a

level established by statute as a minimum sentence so as to reflect

a defendant's substantial assistance in the investigation or

prosecution of another person who has committed an offense."); see

Pérez-Pena, 453 F.3d at 242.

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particular crimes – cannot serve as a legitimate basis for

interdistrict disparities. Andújar supports this claim by pointing

out that § 3553(a) itself, in listing the factors the court must

consider when imposing a sentence, focuses on the nature of the

offense and the offender and never mentions governmental resources.

In addition, he argues that the legislative history behind the

"unwarranted disparity" language in § 3553(a)(6) also indicates no

expectation that scarce government resources could justify sentence

disparities. However, this argument ignores Congress's authority

to modify that focus in the PROTECT ACT itself. We agree with the 7

Ninth Circuit that

when Congress passed the PROTECT Act, it did

so with knowledge that 18 U.S.C. § 3553(a)(6)

was directing sentencing courts to consider

the need to avoid unwarranted sentencing

disparities. By authorizing fast-track

programs without revising the terms of

§ 3553(a)(6), Congress was necessarily

providing that the sentencing disparities that

result from these programs are warranted and,

as such, do not violate § 3553(a)(6).
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Marcial-Santiago, 447 F.3d at 718. We therefore reject Andújar's

argument that sentence disparities arising from Congressionally

sanctioned fast-track programs are unwarranted under § 3553(a)(6).

C. The As-Applied Challenge

Andújar also presents an as-applied challenge to fasttrack programs, contending that even if disparities occasioned by

Congressionally approved fast-track programs are "warranted,"

disparities arising from fast-track programs as they are currently

implemented are "unwarranted" because they deviate from

Congressional intent. Specifically, Andújar argues that the

Attorney General's decisions to approve and deny fast-track

applications in individual districts have defied Congressional

intent. Because the Attorney General's actions are at odds with

Congressional intent, Andújar concludes that the disparities

resulting from this system have not in fact been "warranted" by

Congress. To our knowledge no other circuit has squarely decided

such a claim and the district court did not explicitly address the

as-applied challenge raised below.

To support his argument that the Attorney General has

defied Congressional intent in its implementation of the fast-track

programs, Andújar marshals substantial statistical evidence,

including data prepared by the United States Sentencing Commission

Office of Policy Analysis, to show that the Attorney General has

approved fast-track programs in districts where immigration cases
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make up a low percentage of the district's total caseload and has

denied programs to at least one district where they make up a high

percentage of the caseload. The Sentencing Commission Office's

2003 report states that, for that year, immigration-related

sentences accounted for 21.9% of the national total of terms

imposed. They accounted for 54% of the sentences handed down in

the Southern District of California, 54% in the Southern District

of Texas, and 53% in the District of Arizona. However, they

accounted for only 6% of the sentences in the Western District of

Washington and 11% in the District of Nebraska, both of which

maintained fast-track programs. See United States Sentencing

Commission, Office of Policy Analysis, 2003 Datafiles, generally

available at http://www.ussc.gov/linktojp.htm (compiling annual

sentencing statistics and reporting the number of immigration

sentences in relation to the number of total sentences in Table 5

of each file). In addition, Andújar notes that the Attorney

General denied a fast-track program to the District of Utah, where

immigration cases comprised 27% of the sentences imposed in 2004.

Id. According to Andújar, this data shows that these fast-track

programs, as regulated by the Attorney General, have strayed from

the intent of Congress as expressed by the House Report, which

stated that fast-track programs be approved for "particular classes

of offenses (such as illegal reentry) whose high incidence within

[a] district has imposed an extraordinary strain on the resources
 Specifically, Andújar questions why the Attorney General 8

denied an early disposition program for the District of Utah, where

27% of its total caseload involves immigration cases, but

authorized such programs in the Western District of Washington,

North Dakota, Idaho, Nebraska, and the Northern District of

California - each of which sentenced fewer than 100 immigration

cases in 2003, and each of which had a caseload of, at most, three

immigration cases per AUSA. See Government's Supplemental Response

in Opposition to Defendant's Motion for a Non-Guideline Sentence

Based on Fast-Track Programs at 7, United States v. Medrano-Duran,

386 F. Supp. 2d 943 (N.D. Ill. 2005) (No. 1:04-cr-00884) (internal

citations omitted).

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of that district as compared to other districts." 149 Cong. Rec.

at H2421 (daily ed. Mar. 27, 2003).

In a further attempt to support this argument, Andújar

compares the number of immigration cases per Assistant United

States Attorney ("AUSA") in each district, and finds that these

numbers also fail to correlate with the incidence of fast-track

approval. Based on these statistics, Andújar concludes that fast- 8

track programs, as they are implemented currently, deviate from

Congressional intent, and that they thereby create arbitrary

sentence disparities across districts.

The government responds that the statistical

relationships cited by Andújar present, at best, an incomplete

picture of the resource demands imposed by illegal reentry cases on

each of the districts studied. When Congress authorized the

Attorney General to approve fast-track programs, it did not

restrict the criteria for such programs to the mere proportion of

each district's caseload comprised of immigration cases. Instead,
 Reflecting this variety, a report of the U.S. Sentencing 9

Commission stated that, in addition to the illegal reentry fasttrack programs noted above, the districts of Arizona, Southern

California, New Mexico, Southern Texas and Western Texas had

approved fast-track programs for transportation and harboring

cases; Arizona had a fast-track program specifically for alien baby

and/or child smuggling, and Northern Georgia and Southern Florida

had fast-track programs for fraudulent immigration document cases.

See United States Sentencing Comm'n, Interim Staff Report on

Immigration Reform and the Federal Sentencing Guidelines 30 (2006),

available at http://www.ussc.gov/publicat/imigration_06.pdf

(hereinafter "Interim Report"). 

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it allowed the Attorney General to evaluate such factors as the

number and type of immigration cases encountered by each district

and the quantity and variety of resources each district could

marshal in response. See, e.g., Ashcroft Memorandum, at *1-2. 

Andújar's statistic of choice is the number of

immigration cases as a percentage of total cases within each

district. However, this measure of the resource burden resulting

from immigration caseloads obscures the fact that different types

of cases may require different types and amounts of resources. In 9

addition, the statistics dividing immigration cases by the number

of AUSAs lump together attorneys handling civil and criminal cases

and do not account for AUSAs assigned to particular programs, such

as the Organized Crime and Drug Enforcement Task Force. Even a

district with significant personnel can find resources tight when

only a small subset of its workforce is available for immigration

cases. Likewise, a district with a high overall number of

immigration cases may possess the resources to manage that caseload
 An article in the Deseret News, a Salt Lake City newspaper, 10

quoted Melodie Rydalch, a spokeswoman for the U.S. Attorney's

Office for Utah, explaining the denial of that district's fasttrack application: "Basically we are a victim of our own success.

. . . We have made immigration cases a priority and have done so

many immigration cases, very close to the top in the nation for

non-border states, that we can't demonstrate to them that we can't

handle what our district goals are." Angie Welling, Sentences

Worry Judge, Deseret News (May 23, 2005), available at

http://findarticles.com/p/articles/mi_qn4188/is_20050523/ai_n1463

8884.

 The Attorney General reviews fast-track program applications 11

for renewal every two years, although the first set of authorized

districts in 2003 were initially forced to renew their applications

by October 2004. See October 29, 2004 Memorandum from James B.

Comey, Deputy Att'y Gen., to U.S. Attorneys on Authorization of

Early Disposition Programs 45 (2004), available at

http://sentencing.typepad.com/sentencing_law_and_policy/files/610

05_govt_opposition_to_sg_variance_due_to_fasttrack.pdf (hereinafter

"Comey Memorandum"). Thus, it is possible that fast-track programs

responding to temporary increases in the incidence of particular

types of immigration cases will also be temporary. See Schendel

Norris, supra, at 758 (noting that all of the fast-track programs

approved in 2003 to address illegal reentry were renewed in 2004

and 2006).

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without incident, or it may determine that, though stretched, it

would rather continue to employ tougher sentences than apply for a

fast-track program. In addition, Andújar's statistics do not 10

account for sudden influxes of immigration cases. The government

notes that, while Nebraska is not a border state, it faced a sudden

increase in its immigrant population over the relatively short

period between 2000 and 2006. The government thus argues that if 11

Andújar's statistics were adjusted to account for these finegrained distinctions between districts, the seeming anomalies he
-23-

relies on in labeling interdistrict disparities "unwarranted" would

likely disappear.

We find the government's arguments compelling. The text

of the Feeney Amendment requires that fast-track programs be

established to address "extraordinary resource constraints, not

typical of most districts, associated with the disproportionately

high incidence of illegal reentry or other specific offenses within

a particular district. . . ." 149 Cong. Rec. at H2420 (daily ed.

Mar. 27, 2003). Although Andújar argues otherwise, such judgments

regarding resource allocation can rarely be reduced to a single

variable or calculation. If they could, Congress would have little

reason to delegate such decisions to an executive agency, such as

the Attorney General's Office. As a product of such delegation,

the Attorney General's decisions regarding questions of

implementation and resource allocation deserve significant

deference by courts, especially when they address the enforcement

of the nation's criminal laws. See, e.g., United States v.

Armstrong, 517 U.S. 456, 464 (1996). We therefore decline to

second-guess the Attorney General's methods for determining which

districts warrant fast-track programs.

D. Charge-Bargaining Programs

Andújar raises two additional fast-track claims, each

challenging the use of charge-bargaining programs to obtain

comparable sentence and efficiency results. Rather than relying on
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government initiated downward sentence departures, several

districts engage in charge-bargaining practices, which allow U.S.

Attorneys to reduce the charges filed against an illegal reentry

defendant in return for a waiver of certain procedural rights. In

the Southern District of California, where the first chargebargaining program was established in the mid-1990s, the district's

U.S. Attorneys could charge an illegal reentry defendant with one

count under 8 U.S.C. § 1326(a), which carries a two-year maximum

sentence, instead of one count under § 1326(b), which at the time

carried a maximum penalty of five or fifteen years, depending on

the defendant's criminal history. Other districts have adopted

similar charge-based schemes. 

First, Andújar asserts that these charge-bargaining

programs were not expressly authorized by Congress and, similarly,

operate outside the intent of Congress. As a result, Andújar

argues the disparities resulting from such programs are

unwarranted. Second, Andújar argues that these charge-bargaining

programs, as implemented, have produced sentence reductions greater

than those intended by Congress and the Attorney General. Such

disparities, therefore, have not been approved by Congress and

remain "unwarranted" under § 3553(a)(6). We address these

arguments in turn.
-25-

1. Facial Challenge

In pursuing his facial challenge, Andújar relies on the

text of the PROTECT Act and the legislative history highlighting

Congressional intent, neither of which, he claims, authorized the

use of charge-bargaining methods to obtain the specific, limited

departures Congress authorized. Essentially, he argues that the

failure of Congress to include such programs in the text of the

statute implies that such programs are per se contrary to

Congressional intent.

The PROTECT Act did not explicitly address the issue of

charge-bargaining. The decision whether to charge a defendant and,

if so, what crime(s) to charge, traditionally resides with the

Attorney General and the individual prosecutor. See United States

v. LaBonte, 520 U.S. 751, 762 (1997) ("[T]he discretion a

prosecutor exercises when he decides what, if any, charges to bring

against a criminal suspect[ ] . . . is an integral feature of the

criminal justice system, and is appropriate, so long as it is not

based upon improper factors."); Bordenkircher v. Hayes, 434 U.S.

357, 364 (1978) ("[T]he decision whether or not to prosecute, and

what charge to file or bring before a grand jury, generally rests

entirely in [the prosecutor's] discretion."); see also United

States v. Rodriguez, 162 F.3d 135, 151 (1st Cir. 1998). As a

result, Congress and the courts play a minimal role in regulating

such charging decisions, despite their inevitable impact on
-26-

sentencing. Wayte v. United States, 470 U.S. 598, 607 (1985)

("[The prosecutor's] broad discretion rests largely on the

recognition that the decision to prosecute is particularly

ill-suited to judicial review."); United States v. Smith, 178 F.3d

22, 26 (1st Cir. 1999) ("[W]e note that 'the exercise of

prosecutorial discretion, at the very core of the executive

function, has long been held presumptively unreviewable.'" (quoting

In re Sealed Case, 131 F.3d 208, 214 (D.C. Cir. 1997))). The

PROTECT Act's silence on this issue, therefore, is not evidence of

Congress's intent to preclude such charge-bargaining programs. Cf.

Martínez-Flores, 428 F.3d at 28 (noting that even if the Attorney

General had not authorized fast-track programs under the PROTECT

ACT, "prosecutors still would have been free to achieve the same

outcomes via the bargaining process").

Further, although the PROTECT Act does not expressly

address charge-bargaining programs, there is contemporaneous

documentation which indicates that both Congress and the Attorney

General were aware of several fast-track charge-bargaining programs

and approved of them. The House Report on the Feeney Amendment

recognized that several districts had already instituted such

programs years earlier. See 149 Cong. Rec. at H2421 (daily ed.

Mar. 27, 2003). These pre-existing programs relied on chargebargaining measures. See Schendel Norris, supra, at 750. In his

2003 memo to the United States Attorneys outlining the principles
-27-

for implementing a fast-track program, Attorney General John

Ashcroft specifically referenced "charge-bargaining" fast-track

programs, noting that, if established, they should also provide for

sentencing reductions commensurate with the downward departure

system discussed in the memo and the PROTECT Act itself. Ashcroft

Memorandum, supra, at *3. Finally, in 2004, Deputy Attorney

General James Comey distributed a memo re-authorizing sixteen

existing fast-track programs, including several that used chargebargaining practices, and confirming the Attorney General's policy

that required districts relying on charge-bargaining practices to

obtain the approval of the Attorney General prior to

implementation. Comey Memorandum, supra, at 1. The inclusion of

this confirmatory language by Deputy Comey suggests that the

Attorney General believed, notwithstanding the text of the PROTECT

Act, that such schemes were within the province of the executive

branch and unaffected by the statute. That many charge-bargaining

programs predated the PROTECT Act, and were subsequently authorized

by the Attorney General after the act's passage, further supports

the proposition that charge-bargaining systems are not at odds with

Congress's directives. See Interim Report, supra, at 31 (noting

that some fast-track programs involve charge-bargaining to restrict

the defendant's maximum statutory penalty).
 See supra, note 2. 8 U.S.C. § 1325 prohibits improper entry 12

and § 1326 prohibits illegal reentry. Under a program that charges

a defendant with two counts of § 1325, the first count carries a

statutory maximum penalty of six months, and the second count

carries a statutory maximum penalty of 24 months. The combined 30

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2. As-Applied Challenge

Finally, Andújar argues that even if charge-bargaining

programs are not per se contrary to Congressional intent, many such

programs are currently operated outside the bounds of the PROTECT

Act and U.S.S.G. § 5K3.1, therefore creating unwarranted

disparities for purposes of § 3553(a)(6). Specifically, he argues

that some programs are at odds with Congressional intent because

they provide more than a four-level departure from the Guidelines.

To support this claim, he relies on two items. First, Andújar

cites the decision in a single district court case, United States

v. Medrano-Duran, which examined how charge-bargaining fast-track

systems currently operate in many districts. 386 F. Supp. 2d at

946 ("The fast track districts that rely on charge-bargaining use

methodologies that permit far greater sentence reductions tha[n]

contemplated by Congress' directive in the PROTECT Act and the

Sentencing Commission's policy statement in § 5K3.1."). Next, he

offers the Interim Staff Report on Immigration Reform and the

Federal Sentencing Guidelines, which notes that some fast-track

programs charge an illegal reentry defendant with two counts of 8

U.S.C. § 1325 rather than a single count under 8 U.S.C. § 1326,

which carries a greater penalty. Interim Report, supra, at 31. 12
month maximum sentence is substantially lower than a violation of

§ 1326(b), which carries a maximum sentence of either 10 or 20

years, depending on the defendant's criminal history.

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A term of 30 months' imprisonment under § 1325 represents an eightlevel departure for a defendant who otherwise shares the same

criminal history and sentencing characteristics as Andújar. See

U.S.S.G. ch. 5, pt. A (sentencing table). Andújar thus argues that

disparities resulting from these unauthorized charge-bargaining

schemes are clearly "unwarranted."

In the face of Andújar's evidence on this point, the

district court declined to find that charge-bargaining programs in

fast-track districts had produced sentences outside the parameters

set by Congress. We agree with the district court's decision.

When a party contests a sentence based on the failure of the court

to consider a specific factor, that party must provide the factual

basis for its argument. Jiménez-Beltre, 440 F.3d at 519. This

obligation is most significant when the party has raised an asapplied challenge, which necessarily requires a concrete and

developed factual record for the court to consider. See Sam & Ali,

Inc. v. Ohio Dept. of Liquor Control, 158 F.3d 397, 399–400 (6th

Cir. 1998) (declining consideration of an as-applied, statutory

challenge because the plaintiffs had failed to develop a sufficient

factual record); McGuire v. Reilly, 260 F.3d 36, 47-48 (1st Cir.

2001) (noting, in the context of the First Amendment, that

plaintiffs remain free to challenge the Act, as applied, in a
-30-

concrete factual setting) (emphasis added); Carey v. Wolnitzek, No.

3:06-36-KKC, slip op. at 8 (E.D. Ky. Sept. 17, 2007) (rejecting an

as-applied challenge because the factual basis of plaintiff's claim

remained speculative).

As the government notes, Andújar's sole evidence that

these programs operate outside the bounds of the PROTECT Act was a

government submission in another case in another district, stating

that, by their terms, charge-bargaining fast-track programs can

lead to a sentence reduction greater than the four levels

specifically authorized by Congress in the PROTECT Act. Andújar

provided no evidence that charge-bargaining has, in fact, resulted

in any sentence reduction equivalent to a five level departure (or

more) in any particular case. Moreover, the government notes that

the Ashcroft Memorandum specifically provides that chargebargaining fast-track programs "should provide for sentencing

reductions that are commensurate with" the four-level reduction

authorized under U.S.S.G. §5K3.1. Ashcroft Memorandum, supra, at

*3. Without evidence that prosecutors in individual districts

have deviated from this requirement, Andújar's argument that

charge-bargaining fast-track programs result in unwarranted

sentence disparities must fail, and we need not address whether

such outcomes would constitute unwarranted disparities under

§ 3553(a)(6).
-31-

Moreover, even if we agreed with the premise of Andújar's

argument – that charge-bargaining fast-track programs fall outside

the parameters of the PROTECT Act – we fail to see how his argument

justifies the remedy he seeks. That is, we do not believe that the

appropriate response to unauthorized prosecutorial action in some

fast-track districts is to require judges in other districts to

consider ad hoc downward variances that would equalize sentences at

the level resulting from the unauthorized actions. See Pérez-Pena,

453 F.3d at 243, n.3 ("[A]llowing sentencing courts to determine

whether they should sentence non-fast-track defendants as if they

had been fast-tracked would produce 'unwarranted sentence

disparities' between similarly situated non-fast-track defendants,

some of whom would benefit from the existence of others' fast-track

deals and some of whom would not."). To find otherwise would be to

allow judges to ignore the decisions of United States Attorneys and

the Attorney General to not have such a program in a specific

district and to disregard Congressional intent on the proper scope

of such programs. See Albert Llosas Barrueco, Fast-Tracking United

States v. Booker: Why Judges Should Not Fix Fast Track Disparities,

6 Conn. Pub. Int. L.J. 65, 105 (2006) ("[J]udges are ill-advised to

impose Fast Track programs by judicial mandate. Such decisions have

the inescapable result of invading the province of the prosecutor

by delivering the discretion to charge and establish enforcement

policies into the hands of judges."). If Congress agrees with
-32-

Andújar's criticism of the fast-track regime as applied, it is in

the best position to reshape the system. 

E. Equal Protection

Andújar also argues that fast-track sentence disparities

violate his constitutional right to equal protection under the

Fifth and Fourteenth Amendments. While our review of

constitutional claims is generally plenary, United States v.

Proctor, 166 F.3d 396, 401 (1st Cir. 1999), we review only for

plain error because Andújar raises this argument for the first time

on appeal. See United States v. Olano, 507 U.S. 725, 732-33

(1993).

Andújar cites no case law in support of his equal

protection claim; any error, therefore, could not qualify as

"plain." See Id. at 734. Moreover, he has failed to show any

constitutional deficiency. Because his challenge does not

implicate a suspect class, Andújar must show that there is no

rational basis for the legislated distinction – in this case

between the treatment of illegal reentry defendants in fast-track

districts and of similar defendants in Massachusetts. Naeem v.

Gonzales, 469 F.3d 33, 38 (1st Cir. 2006) (citing Heller v. Doe,

509 U.S. 312, 320 (1993)). Where, as here, Congress has made its

purpose explicit, Andújar must show the statutory purpose has been

implemented in a manner "so attenuated as to render the distinction

arbitrary or irrational." City of Cleburne v. Cleburne Living
-33-

Ctr., 473 U.S. 432, 446 (1985). Andújar has failed to meet these

burdens.

Indeed, we have already denied a claim presenting a

facial equal protection attack on fast-track programs. MeléndezTorres, 420 F.3d at 52-53 (concluding that the incidence of fasttrack programs in some states and not others could rationally be

related to different incidences of crime across districts,

different prosecutorial needs, or a determination that the absence

of such a program increases deterrence). We believe that these

justifications apply with equal strength in this case. Further,

for the same reasons we rejected Andújar's as-applied challenge to

fast-track disparities, we find that such programs have not been

implemented in a manner that is "so attenuated as to render the

[Congressionally established] distinction arbitrary or irrational."

Cleburne, 473 U.S. at 446. We conclude, therefore, that fast-track

programs, as applied, are rationally related to the Congressional

goal of protecting prosecutorial resources.

III.

We may quickly dispatch Andújar's claim that AlmendarezTorres is no longer persuasive precedent. We rejected a similar

argument in United States v. Jiménez-Beltre, 440 at 520 ("Whatever

the continuing validity of Almendarez-Torres, we have previously

held that we are bound to follow it until it is expressly

overruled.") (citation omitted), and have since repeated that
-34-

conclusion many times. See, e.g., United States v. Shoup, 476 F.3d

38, 46 n.5 (1st Cir. 2007); United States v. Coplin, 463 F.3d 96,

105 (1st Cir. 2006); United States v. Peralta, 457 F.3d 169, 172

(1st Cir. 2006). We find nothing new in Andújar's argument that

requires us to reopen this issue. 

Affirmed.