### In the



# United States Court of Appeals

For the Seventh Circuit

No. 09

‐ 3932

U NITED S TATES OF A MERICA

,

Plaintiff

‐ Appellee

,

v.

S ERGIO S ANDOVAL R AMIREZ

,

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

U NITED S TATES OF A MERICA

,

Plaintiff

‐ Appellee

,

v.

F RANCISCO O CAMPO

‐ P INEDA

,

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

U NITED S TATES OF A MERICA

,

Plaintiff

‐ Appellee

,

v.

L UIS A. M ANDUJANO

‐ G ONZALEZ

,

Defendant

‐ Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:09 CR 586

‐ 1— Amy J. St. Eve

, Judge.

A RGUED A PRIL 27, 2011

— D ECIDED J ULY 20, 2011

A MENDED D ECEMBER 23, 2011 *

Before C UDAHY

, E VANS **

, and T INDER

, Circuit Judges.

P ER C URIAM

. 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.

*

This opinion is being released initially in typescript form.

**

Circuit Judge Terence T. Evans died on August 10, 2011, and

did not participate in the amended decision of this case, which

is being resolved by a quorum of the panel under 28 U.S.C. §

46(d).Nos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689 3

§ 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

demonstrates 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opinion, but four nonprecedential orders offer helpful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 fast

‐ track

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 be eligible to receive a fast

‐ track sentence in at least

one district offering the program and submit the likely

imprisonment range in that district. Unless and until the

defendant meets these preconditions, his “disparity”

argument is illusory and may be passed over in silence.

Moreover, a defendant would be well advised to provide

information on eligibility and the likely imprisonment range

in any other district in which he would qualify for a fast

‐ track sentence and also provide a candid assessment of the

number of programs for which he would not qualify. This4 Nos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689

type of information might strengthen the defendant’s

disparity argument and would prove very useful to the

sentencing court. Such information would allow the

sentencing court to appreciate the extent of the disparity, if

any, that would result if the defendant was not given a sentencing break. Of course, the government would be free

to argue that the defendant would be ineligible for a

reduction in a fast

‐ track district, that the likely imprisonment

range in any district where he would be eligible would be

different from that suggested by the defendant, and that any

fast

‐ track disparity would not warrant a lower sentence

anyway.

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 unwarrantedNos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689 5

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 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 fast

‐ track 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 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.6 Nos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689

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 Reyes

‐ Hernandez

, 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 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.Nos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689 7

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 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 fast

‐ track 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

‐ track8 Nos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689

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 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 fast

‐ track 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. 1 He

1

Ramirez too makes an ancillary argument. He points out that

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

,Nos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689 9

insists that touching a teenager’s breasts does not require the

use or threat of physical 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 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

608 F.3d 331, 335 (7th Cir.), cert. denied

, 131 S. Ct. 647 (2010).10 Nos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689

“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 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 toNos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689 11

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 Reyes

‐ Hernandez 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 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 (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.12 Nos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689

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 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 Fast

‐ Track

Dispositions District

‐ by

‐ District Relating to Illegal Reentry

Cases, reprinted in 21 F ED

. S ENT ’ G R EP

. 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 of 2 levels; the Western District of Texas offers

only 1 level. Id. at 344, 347. And still other districts employNos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689 13

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 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 arguments14 Nos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689

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.

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 answerNos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689 15

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 fast

‐ track 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 government 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 fast

‐ track 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,16 Nos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689

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 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 F ED

. R. C RIM

. 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 fast

‐ track 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

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 programsNos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689 17

for which he would not be eligible. This information is

important 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. But we stop short of requiring Ocampo to have

disclosed this information to the district court. Of course, the

government would have been free to argue that the likely

benefit in the district or districts where Ocampo was eligible

would have been different from that which he suggested, or

that he would not have been eligible for a reduction in other

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 plea colloquy, establish

that he would be eligible to receive a fast

‐ track sentence in at

least one district offering the program, and submit the likely

imprisonment range in that district. Unless the defendant

complies with each of these steps, the sentencing court will

be free to reject the argument without comment. Of course,

district courts have the discretion to ask both the defendant

and the government for additional relevant information and

such information may be made an additional prerequisite to

consideration of the defendant’s argument. For example, the

government would likely want to produce an assessment of

the number of programs for which the defendant would not

qualify. And given these preconditions to a colorable claim18 Nos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689

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 fast

‐ track 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 Reyes

‐ Hernandez 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 Reyes

‐ Hernandez when

he urged the district court to abandon 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 Reyes

‐ Hernandez 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.Nos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689 19

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 have provided several sources of

information regarding fast

‐ track policies. 2 We further 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

2

Defendants may use a variety of sources to obtain the

necessary information. Of course, defendants may first look to

publicly available plea agreements. There are several

memoranda discussing fast

‐ track district programs. See 21 F ED

.

S ENT ’ G R EP

. 339 (2009); Memorandum from the Deputy

Attorney General to U.S. Attorneys (Dec. 28, 2009), available at

http://www.fd.org/pdf_lib/Fast%20Track%20Ogden%20mem

o%2012.28.09.pdf (last visited Dec. 14, 2011). Articles also

discuss district programs’ requirements. See, e.g.

, Ingrid V.

Eagly, Prosecuting Immigration

, 104 N W

. U. L. R EV

. 1281, 1322

n.251 & 254 (2010) (citing interviews with Federal Defender in

District of New Mexico and “Panel Representative” in the

Southern District of California); James F. Smith, United States

Immigration Law as We Know It: El Clandestino, the American

Gulag, Rounding Up the Usual Suspects

, 38 U.C. D AVIS L. R EV

. 747,

785 n.167 (2005) (citing interview with Federal Defender in the

Northern District of California).20 Nos. 09

‐ 3932, 10

‐ 2190 & 10

‐ 2689

that appears to be the case.

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 A FFIRM

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

M ODIFIED to clarify that his participation in the Inmate

Financial Responsibility Program is voluntary.