Judges Are Always the Last to Know: Circuit Forgets Its Own Decision Rejecting Fast-Track Disparity Argument in Illegal Reentry Cases

United States v. Marvin Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006) (Miner, Leval, Calabresi): We had to do a double-take at the publication date of this opinion after reading it. Here's why. Pereira argued on appeal (though he did not do so in the district court) that his 62-month sentence for unlawful reentry after deportation, imposed in the E.D.N.Y., was unreasonable because "the district court did not consider the disparity between his sentence and those received by defendants convicted of unlawful reentry in jurisdictions with fast-track programs." Op. 14. This precise argument, of course, was rejected two months ago by the Circuit in United States v. Mejia, 461 F.3d 158 (2d Cir. 2006) (click here for our unhappy discussion).

Apparently, however, judges of the Circuit do not always read their own opinions. Rather than rejecting Pereira's argument with a one-sentence cite to Mejia, this particular Panel first discussed in detail the plain-error standard, Op. 14-15, and then concluded that the defendant could not meet this standard because "[a]t this time, there is no binding precedent from either the Supreme Court or our Court with respect to the issue of sentencing disparities arising from fast-track programs." Op.15. Oy.

For a fleeting moment, we wondered whether Mejia had been overruled or withdrawn sub silentio. No such luck; a quick Westlaw check confirmed Mejia's continuing vitality. Someone at 40 Foley (or, more accurately, 500 Pearl) simply blew it.

In any event, the opinion also holds that a New York youthful offender adjudication could trigger a 16-level enhancement under the reentry Guideline (§ 2L1.2), where the conviction occurred in an adult court and the defendant served his sentence in an adult prison. Op. 11-12. This aspect of the decision simply extends the reasoning of cases such as United States v. Jones, 415 F.3d 256 (2d Cir. 2005) and United States v. Cuello, 357 F.3d 162 (2d Cir. 2004), to the reentry Guideline. (Click here for our critique of that misguided line of cases).

Postscript: Professor Berman has offered other criticisms of this decision (click here). He complains principally that the Court's casual affirmance of Pereira's above-the-range sentence as "reasonable" is inconsistent with the searching approach it has used to reverse otherwise similar but below-the-range sentences as unreasonable in cases such as Rattoballi. I don't disagree, but my cynicism about the Circuit's behavior in this realm (In sum: "Above the range? OK! Below the range? Bad!") prohibits further commentary in this family-friendly forum.