New York Federal Criminal Practice Blog
October 16, 2008

Some Recent Decisions of Note on Fast Track Disparity and Unconstitutionality of Gun Possession Laws

Fast Track Disparity

As explained by Judge Sweet in United States v. Paulino-Melende, 08 cr 176 (RWS), 2008 WL 4553148 (S.D.N.Y. October 8, 2008), fast-track disparity is created by the existence in some districts but not others of a “fast track program” whereby an individual charged with illegal re-entry agrees to quick removal, thus saving the Government resources, and in return receives a substantially lower sentence than would otherwise be dictated by the Guidelines.  Quoting SDNY Judge Kaplan, Judge Sweet points out “it is difficult to imagine a sentencing disparity less warranted than one which depends upon the accident of the judicial district in which the defendant happens to be arrested.”  Rejecting this unwarranted disparity (and relying in part on the Sentencing Commission’s own acknowledgement of the disparity, as well as a criminal history double-counting issue that occurs in illegal re-entry cases), he imposed a sentence that was approximately half of the low end of the applicable guideline range. 

Gun Possession

In United States v. Erwin, 07-CR-556 (LEK), 2008 WL 4534058 (N.D.N.Y. October 6, 2008), a defendant charged with various crimes relating to his purchase of a firearm while subject to an order of protection argued an “outright ban on the possession of a simple shotgun” by someone “only alleged to be the subject of an order of protection fails to pass constitutional muster” under the Supreme Court’s recent right-to-bear-arms holding in District of Columbia v. Heller, 128 S.Ct. 2783 (2008)].  Pointing out that in Heller, the Court held that “nothing in our opinion should be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms,” Judge Kahn denied the motion to dismiss the indictment.  He pointed out that the provision at issue in Erwin’s case, 18 U.S.C. § 922(g)(8), “is not an outright ban on firearm possession like the situation in Heller,” but rather a temporary ban “as long as the underlying state court order is in effect.”  Moreover, the ban is “narrowly tailored” to the “compelling government interest” of “[r]educing domestic violence.”


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