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United States v. Rodriguez

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Before Boudin, Chief Judge, Torruella, Circuit Judge, and Selya, Senior Circuit Judge.

In United States v. And£jar- Arias, 507 F.3d 734 (1st Cir. 2007), a panel of this court held that sentencing disparity attributable to the selective inauguration of so- called “fast-track” programs for the processing of immigration crimes could not form the basis for a variant sentence. Id. at 739. This appeal requires us to gauge the continued validity of And£jar-Arias in light of the Supreme Court’s subsequent decisions in Gall v. United States, 128 S.Ct. 586 (2007), and Kimbrough v. United States, 128 S.Ct. 558 (2007).

After careful evaluation of the effect of those decisions on a sentencing court’s discretion, we conclude that they undermine the interpretive approach followed in a number of earlier cases in this and other circuits, including And£jar-Arias. In fidelity to the Supreme Court’s new gloss, we abrogate And£jar-Arias to the extent that it is inconsistent with this opinion, vacate the sentence appealed from, and remand for resentencing.

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