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In determining the non-Guidelines sentence to be imposed in this case, it is appropriate to consider how other courts have approached the fast-track disparity issue. In this District, on October 28, 2005, the Honorable Kimba M. Wood imposed a non-Guidelines sentence based upon the unwarranted sentencing disparity in illegal reentry cases. See United States v. Vernal Mark Deans, 03 Cr. 387(KMW). Judge Wood found that most fast-track illegal reentry jurisdictions on average reduce a sentence by four offense levels, and accordingly rejected the Guidelines range of seventy-seven to ninety-six months and imposed a sentence of fifty-one months. This Court previously has utilized the equivalent of a four-level reduction in the offense level in determining the length of non-Guidelines sentences.  Santos-Nuez, 2006 WL 1409106, at *6; Santos, 406 F. Supp. 2d at 329, Linval, 2005 WL 3215155, at *7. 



Accordingly, after accounting for the effects of the fast-track disparity, Gutierrez-Hernandez is more appropriately sentenced at the equivalent of an offense level of 2 [rather than 6]. Under the Guidelines, an offense level of 2 and a Criminal History Category of V result in a range of zero to 6 months.

Gutierrez-Hernandez is also well worth checking out for the citations contained therein.  Judge Sweet does a very nice job (as he always does) of laying our the relevant authority -- in this case, authority supporting the notion that fast-track disparity is becoming a well-established basis for non-Guidelines sentences.