In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3093

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

ALEJANDRO GALICIA-CARDENAS,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05-CR-18—J.P. Stadtmueller, Judge.

____________

No. 05-3486

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTELMO VEGA-LOPEZ,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 05-CR-068-S—John C. Shabaz, Judge.

____________
2 Nos. 05-3093 & 05-3486

Œ These two cases were scheduled to be argued before our panel

on February 8, 2006. On February 2, 2006, we vacated the

arguments after concluding that they were unnecessary. Thus, the

appeals are submitted on the briefs and the records. See Fed. R.

App. P. 34(a)(2).

ŒŒ This decision was originally released as an unpublished order.

Upon the government’s motion, we now issue it as a published

opinion.

SUBMITTED FEBRUARY 8, 2006Œ—DECIDED MARCH 24, 2006ŒŒ

____________

Before MANION, KANNE, and EVANS, Circuit Judges.

PER CURIAM. We consolidate these two cases for decision because they raise the same issue. In the first case,

Alejandro Galicia-Cardenas was charged in a singlecount indictment alleging that he entered the United States

without permission after having previously been deported

following a 1994 conviction for an aggravated

felony—second degree robbery in Los Angeles. GaliciaCardenas entered a guilty plea to the charge in the Eastern

District of Wisconsin. Vega-Lopez was charged with the

same offense, but his aggravated felony was a 1997 conviction for possession of marijuana for sale, ironically (we

assume) also in Los Angeles. He entered a guilty plea to the

charge in the Western District of Wisconsin. Vega-Lopez

appeals his sentence. The government appeals the sentence

Galicia-Cardenas received.

Both judges in these post-Booker cases appropriately

consulted the guidelines and treated them as advisory.

Vega-Lopez’s properly calculated guideline range was 27

to 33 months. The court imposed a sentence of 30 months.

Galicia-Cardenas, who had a prior conviction for a

crime of violence, fared worse under the guidelines as his
Nos. 05-3093 & 05-3486 3

properly calculated advisory range was 41 to 51 months.

His sentence, however, was 27 months, 3 months less than

the term Vega-Lopez received.

In sentencing Mr. Galicia-Cardenas, the judge concluded

that because the Eastern District of Wisconsin has not

implemented a fast-track program to prosecute illegal

reentry cases, the use of such programs in other districts

created an unwarranted sentencing disparity between

Galicia-Cardenas and other immigration offenders. As

a result, the judge adjusted Galicia-Cardenas’s sentence downward the equivalent of 4 levels and arrived

at the 27-month sentence. In sentencing Mr. Vega-Lopez,

the district court declined to bestow a similar benefit on

him because a fast-track program is not used in Wisconsin.

In 1994, the Southern District of California—a district

which saw more than 600,000 arrests annually at its border

with Mexico in the early 1990s—adopted an early disposition or “fast-track” program. See Alan D. Bersin, Reinventing Immigration Law Enforcement in the Southern District

of California, 8 Fed. Sentencing Rep. 254 (1996). Soon,

other “border” states followed suit with fast-track programs

of their own.

In 2003, Congress formally approved the use of fast-track

programs. As part of the “Prosecutorial Remedies & Other

Tools to End the Exploitation of Children Today Act” (the

“PROTECT Act”), Congress granted the Attorney General

the sole authority to create and implement fast-track

programs. See Pub. L. No. 108-21, § 401(m)(2)(B), 117 Stat.

650, 675 (2003).

Although the general goal of the PROTECT Act was to

reduce downward departures, Congress directed the

Sentencing Commission to promulgate a policy statement

authorizing a departure of not more than 4 levels when a

defendant resolved his case through a fast-track program

authorized by the Attorney General.
4 Nos. 05-3093 & 05-3486

In a recent decision, United States v. Martinez-Martinez,

2006 WL 722140 (7th Cir. March 23, 2006), we rejected a

claim that the defendant’s 41-month sentence (the low end

of the advisory guideline range) was unreasonable because

Indiana does not have a fast-track program. We went on to

observe, “Given Congress’ explicit recognition that fasttrack procedures would cause discrepancies, we cannot

say that a sentence is unreasonable simply because it

was imposed in a district that does not employ an early

disposition program.” By the same logic, we cannot say that

a sentence imposed after a downward departure is by itself

reasonable because a district does not have a fast-track

program. Because Martinez controls these cases, we must

affirm the sentence imposed in Vega-Lopez’s case (he raises

no other arguments suggesting that his sentence

is unreasonable) and vacate the sentence Mr. GaliciaCardenas received. Mr. Galicia-Cardenas must be resentenced without a credit for Wisconsin’s lack of a fast-track

program. Whether he deserves a sentence below the

advisory guideline range based on other factors is left to the

discretion of the district court.

IT IS SO ORDERED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-10-06