                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-3675

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

JOSE M ANUEL A NAYA-A GUIRRE,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 1:10-cr-01094—James B. Zagel, Judge.



   A RGUED S EPTEMBER 24, 2012—D ECIDED JANUARY 10, 2013




 Before B AUER, F LAUM, and H AMILTON, Circuit Judges.
  H AMILTON, Circuit Judge. Appellant Jose Manuel Anaya-
Aguirre violated 8 U.S.C. § 1326(a) by illegally reen-
tering the United States after a prior deportation that
had followed a felony conviction in the United States.
He pled guilty and was sentenced to 48 months in
prison. Anaya-Aguirre argued in the district court that
he should receive a below-guideline sentence because
the Northern District of Illinois did not have a “fast-
2                                                   No. 11-3675

track” program. Fast-track programs in some districts
offer certain categories of defendants — including many
in immigration cases — shorter sentences in exchange
for very prompt guilty pleas, the waiver of nearly all trial
and appellate rights, and other conditions. While the
district court imposed a sentence that was below the
guideline range, it is clear that the downward variance
was not based on the lack of a fast-track program. Anaya-
Aguirre has appealed his sentence, arguing that the
district court erred by rejecting his fast-track mitigation
argument. We affirm.1
  We have jurisdiction over this appeal under 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291. We review de novo
questions of law, including those concerning alleged
procedural errors in sentencing. United States v. Vallar,
635 F.3d 271, 277-78 (7th Cir. 2011). We review discretion-
ary sentencing decisions for an abuse of discretion
judged by the reasonableness of the sentence. Gall v.
United States, 552 U.S. 38, 51 (2007); United States v.
Booker, 543 U.S. 220, 261 (2005). “A sentence is reasonable
if the district court gives meaningful consideration to


1
   At the time of Anaya-Aguirre’s sentencing, none of the
districts in the Seventh Circuit had fast-track programs. In
January 2012, however, the Department of Justice changed its
policy and now requires all districts prosecuting § 1326 viola-
tions to institute fast-track programs. See Memorandum
from Deputy Attorney General James M. Cole to All United
States Attorneys, Department Policy on Early Disposition or “Fast-
Track” Programs (Jan. 31, 2012), available at www.justice.gov/
dag/fast-track-program.pdf.
No. 11-3675                                               3

the factors enumerated in 18 U.S.C. § 3553(a).” United
States v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008).
  Anaya-Aguirre offers at least five separate arguments
for reversing the denial of his fast-track mitigation argu-
ment: two procedural arguments and a cluster of related
constitutional theories. On the procedural side, he
argues that the government should be estopped from
opposing his request for a downward variance because
the prosecutor affirmatively misled him about the
ability to make a fast-track disparity argument at sen-
tencing. He also argues that the district court incor-
rectly believed it did not have discretion to grant
him a downward variance based on the district’s lack
of a fast-track program.
  The several constitutional claims are all based on a
misunderstanding of our decision in United States v.
Ramirez, 675 F.3d 634 (7th Cir. 2011), which set forth
the circumstances in which a district court would need
to explain why it was rejecting a fast-track disparity
argument. Anaya-Aguirre incorrectly contends that
Ramirez created a set of “prerequisites” a defendant
must fulfill before he may argue for or receive a
downward variance based on a fast-track disparity.
He challenges some of these supposed prerequisites on
constitutional grounds, including due process, equal
protection, and self-incrimination, but the arguments are
based on that misunderstanding of Ramirez, which did
not impose any restraints on a defendant’s ability to
present mitigating arguments at sentencing nor limit
a district court’s discretion to accept fast-track disparity
arguments.
4                                                 No. 11-3675

   In explaining our rejection of these arguments, we
first briefly review this circuit’s approach to fast-track
disparity arguments, with particular attention to United
States v. Reyes-Hernandez, 624 F.3d 405 (7th Cir. 2010),
which granted sentencing courts the discretion to
consider fast-track disparity as part of their analysis of
sentencing factors under 18 U.S.C. § 3553(a). We then
discuss Ramirez, which guides sentencing courts’ review
of these arguments.


I. Fast-Track Sentences
  Fast-track programs are a bargain for both defendants
and overworked prosecutors, especially in districts with
high volumes of immigration violations. The defendant
receives a sentence below the guideline range while the
prosecution secures a swift and final conviction and
punishment. The defendant facilitates the process by
pleading guilty promptly and waiving the right to trial
and appeal. In exchange, the prosecution agrees to recom-
mend a below-guideline sentence. See U.S.S.G. § 5K3.1.
For a thorough treatment of the history of fast-track
programs, see, e.g., Reyes-Hernandez, 624 F.3d at 409-12;
Jane L. McClellan & Jon M. Sands, Federal Sentencing
Policy Guidelines & the Policy Paradox of Early Disposition
Programs: A Primer on “Fast-Track” Sentences, 38 Ariz. St. L.J.
517, 517-24 (2006).
  As fast-track programs evolved based on caseload
pressures, especially in southern border districts, the
details differed from one district to another. After
No. 11-3675                                                 5

Congress embraced fast-track sentencing in the PRO-
TECT Act of 2003, the Attorney General imposed five
requirements that all defendants seeking a fast-track
sentence must satisfy: (1) plead guilty “within a
reasonably prompt period after the filing of federal
charges, to be determined based upon practice in the
district;” (2) agree to the government’s factual account
of the offense; (3) forfeit the right to make all motions
authorized by Federal Rule of Criminal Procedure
12(b)(3); (4) waive the right to appeal; and (5) waive
the opportunity to challenge the conviction under
28 U.S.C. § 2255, except for ineffective assistance
of counsel claims. See Memorandum from the At-
torney General to All United States Attorneys, Depart-
ment Principles for Implementing an Expedited Disposition
or “Fast-Track” Prosecution Program in a District
(Sept. 22, 2003), available at http://www.justice.gov/ag/
readingroom/ag-092203.pdf (hereinafter 2003 DOJ Memo-
randum).


II. Fast-Track Sentencing Disparities and the Seventh Circuit
  Until very recently, there have been no fast-track pro-
grams in any districts in the Seventh Circuit, so a
number of defendants who might have been eligible
for fast-track sentencing if they had been prosecuted
in other districts argued that the lack of a formal fast-
track program was a mitigating factor for their sen-
tences. In Reyes-Hernandez, we overruled an earlier
decision and held that district courts in the Seventh
Circuit can properly use their post-Booker discretion to
6                                                   No. 11-3675

consider such arguments. 624 F.3d 405, 417-19 (7th Cir.
2010). We said at that time that a defendant making
the fast-track disparity argument “must first 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. There quickly followed a number of appeals
in which defendants had made fast-track mitigation
arguments and district courts had rejected them, some-
times with little or no discussion.2
  In Ramirez, decided after Anaya-Aguirre’s sentencing,
we answered a narrow question arising in the wake of
Reyes-Hernandez: “As this court made clear in United
States v. Reyes-Hernandez, 624 F.3d 405 (7th Cir. 2010),
district courts may consider a fast-track argument, but
they are not required to consider one. This opinion ad-
dresses a different question — when is a district court
obliged to comment on a fast-track argument.” 675 F.3d
at 641 n.2. We held: “unless the defendant has shown
that he is similarly situated to persons who actually
would receive a benefit in a fast-track district,” the
district court is not required to provide reasons for re-
jecting the fast-track disparity argument. Id. at 636.
Thus, Ramirez explained when a district court must
address the argument explicitly. It did not limit
a district court’s discretion or ability to consider any



2
  See, e.g., United States v. Abasta-Ruiz, 409 Fed. Appx. 949 (7th
Cir. 2011); United States v. Vazquez-Pita, 411 Fed. Appx. 887 (7th
Cir. 2011); United States v. Morant-Jones, 411 Fed. Appx. 885 (7th
Cir. 2011).
No. 11-3675                                              7

mitigation arguments, including those based on fast-
track disparities.
  Under Ramirez, a district court must address a fast-
track disparity argument explicitly only when the defen-
dant has made a sufficient evidentiary showing that
he would be eligible for fast-track treatment in
a district with such a program. This holding was not
revolutionary but common-sense: “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 con-
tention.” 675 F.3d at 641. To establish that factual
predicate such that the sentencing court must take the
time to comment on the argument, the defendant must
show that he acted exactly like the defendant in a fast-
track district. Ramirez instructed sentencing courts that,
absent this evidentiary showing of the defendant’s
actions, the court would not err by concluding that a fast-
track argument is “illusory” and therefore “may be
passed over in silence.” Id. at 636.
  On this point, Ramirez only repeated what should
have been evident. To succeed on a fast-track mitigation
argument or to appeal successfully the silent rejection
of such an argument, defendants must show that they
are “similarly situated” to defendants in fast-track
districts. “That means 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
8                                             No. 11-3675

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.” Id.
  Anaya-Aguirre argues, though, that Ramirez created a
new set of requirements for arguing the absence of a fast-
track program as a mitigating factor. This reading of
Ramirez is wrong. Ramirez did not create a set of affirma-
tive acts that the defendant must complete before the
judge would be permitted to consider a fast-track
disparity argument. We now turn to the specific facts
of this case and the district court’s rejection of Anaya-
Aguirre’s fast-track mitigation argument.


III. The Proceedings Here
  Anaya-Aguirre, a Mexican citizen, illegally reentered
the United States and was picked up by immigration
officials on December 21, 2010. He was arrested and
charged with violating § 1326(a) shortly thereafter. A
grand jury indicted him on January 13, 2011. On Janu-
ary 27, 2011, Anaya-Aguirre’s attorney sent an email to
the prosecutor saying in pertinent part that Reyes-
Hernandez “states that a fast track sentence is applicable
where a defendant waives pre-trial motions, an appeal
and a 2255 other than ineffective assistance and a defen-
dant must be eligible for fast track if it was available.
Can you draw a plea agreement based on fast track sen-
tencing?” The government responded on February 1,
2011 explaining, “Regarding the Fast-Track. Our district
No. 11-3675                                                  9

does not have it and our office will not draft plea agree-
ments as if we did. However, as the opinion in Reyes-
Hernandez states, the fact that our district does not have
a fast-track program can be argued as a 3553(a) factor
at sentencing.” Prior to this email exchange, the gov-
ernment had offered Anaya-Aguirre a plea agreement
which he rejected, in part, because “it did not offer him
any benefits.” The government’s email therefore also
informed Anaya-Aguirre’s attorney that “the plea agree-
ment I sent to you won’t be revised.”
  On May 10, 2011, four months after Anaya-Aguirre’s
indictment, he changed his plea to guilty but without a
plea agreement with the government. The guilty plea
did not include a waiver of any of his appellate rights.
At his sentencing on November 9, 2011, Anaya-Aguirre
submitted a “waiver of rights for fast track sentencing.”
He offered this waiver ten months after his indictment
and six months after his guilty plea.3
  In his sentencing memorandum, Anaya-Aguirre
argued for a below-guideline sentence based on the lack


3
  In his brief, Anaya-Aguirre claims that he attempted to waive
his relevant trial and appellate rights in his attorney’s email
requesting a fast-track sentence. Def. Br. at 18-19. This claim
lacks merit. We will not read a waiver of such fundamental
rights implicitly based on an ex post assertion made on ap-
peal. More to the point, such a waiver would prove wholly
unenforceable, which would not satisfy the requirements in
the fast-track districts. See 2003 DOJ Memorandum (requiring
that “defendant enter into a written plea agreement that
includes” all relevant waivers).
10                                               No. 11-3675

of a fast-track program in the Northern District of
Illinois and his purported eligibility for such a program.
The government opposed the idea, arguing that Anaya-
Aguirre had failed to act as if he were in a fast-track
district. The district court rejected Anaya-Aguirre’s fast-
track disparity argument but imposed a below-guideline
sentence on other grounds.


IV. Legal Analysis
  We turn now to Anaya-Aguirre’s legal arguments, first
the estoppel and procedural arguments, and then the
constitutional arguments.


  A. Estoppel
   Anaya-Aguirre argues that that the government should
be estopped from opposing a fast-track variance because
of its response to his attorney’s original request for a fast-
track plea agreement. He contends he was misled by the
prosecutor’s response, which said that the Northern
District of Illinois did not have a fast-track program
but that Anaya-Aguirre could raise the issue at sen-
tencing pursuant to Reyes-Hernandez. The government
argued that, as Reyes-Hernandez itself had explained, a
defendant making a fast-track disparity argument “must
first have been eligible for fast-track status had it been
available and show that he would have in fact pursued
the option . . . .” 624 F.3d at 420. Anaya-Aguirre had
failed to make those showings.
No. 11-3675                                             11

  There are three traditional elements of estoppel:
“(1) misrepresentation by the party against whom
estoppel is asserted; (2) reasonable reliance on that mis-
representation by the party asserting estoppel; and
(3) detriment to the party asserting estoppel.” United
States v. Gatewood, 965 F.2d 413, 417 (7th Cir. 1992).
When a party seeks to estop the government, the
party must also show that the government committed
affirmative misconduct, which requires “more than
mere negligence.” Gibson v. West, 201 F.3d 990, 994 (7th
Cir. 2000) (citation omitted). If any one of these elements
is not satisfied, the estoppel claim fails. Anaya-Aguirre’s
estoppel argument fails because he cannot show affirma-
tive misconduct or misrepresentation by the govern-
ment, nor can he show reasonable reliance.


   1. No Affirmative Misconduct
  Anaya-Aguirre has not shown affirmative misconduct
by the prosecutor. The prosecutor’s response to Anaya-
Aguirre’s first request for a fast-track plea agreement
pointed out that the Northern District of Illinois had
no such program but that Seventh Circuit case law
would allow the defendant to make the argument at sen-
tencing. There was nothing at all deceptive about
this response. The prosecutor went so far as to direct
defense counsel to the relevant case, though both
lawyers were already familiar with it. The prosecutor
was not required to provide defense counsel a detailed
and precise account of the applicable law; he could
look that up for himself. The prosecution did not
12                                              No. 11-3675

mislead the defendant or his counsel and did not secure
any unfair advantage. Furthermore, the prosecutor’s
argument at sentencing, to the effect that Anaya-Aguirre
had failed to show he could have qualified for fast-
track status under any program in any other district,
was both accurate and fair, and it was consistent with
the teaching of Reyes-Hernandez.


     2. No Misrepresentation or Reasonable Reliance
  Anaya-Aguirre argues that the prosecutor’s email led
him to believe that the government would not oppose a
fast-track sentence based on his failure to plead guilty
promptly and to waive his trial and appellate rights
because the government would not draft a fast-track
plea agreement. We see neither misrepresentation
nor reasonable reliance on a false statement or promise.
The email was an accurate and concise explanation of
the law at the time: The Northern District of Illinois did
not have a fast-track program, and after Reyes-Hernandez,
defendants were free to argue for a downward variance
on that basis at sentencing. Both counsel were familiar
with Reyes-Hernandez and each could read it for himself.
The prosecutor did not discourage defense counsel
from preparing to make the showing that Reyes-
Hernandez required: that the defendant would have
been eligible for fast-track status if it had been available
and that he would have pursued that course. 624 F.3d
at 420.
No. 11-3675                                           13

 B. Procedural Error
  Anaya-Aguirre argues next that the district court
made an error of law because it believed it did not have
the discretion to reduce his sentence based on the fast-
track disparity argument. In response to the fast-track
argument, the district court noted that the legal land-
scape concerning the consideration of fast-track dis-
parities at sentencing in non-fast-track districts was
unclear before Ramirez. The district court compared the
situation to two Supreme Court decisions decided the
day of the hearing in which habeas relief had been denied
despite state courts’ legal errors because the law was
unclear at the time.
 In reference to these cases the district court explained
why the estoppel argument failed:
   The Supreme Court said you still don’t get habeas
   corpus because the statute says if the law is not
   clearly defined at the time of the decision you make,
   then we honor your decision. And, indeed, in one
   case, the Supreme Court said, basically, the Ohio
   Supreme Court was wrong but they couldn’t have
   known that they were wrong at the time they made
   it, and the habeas corpus was denied. And this is,
   roughly, the position we’re in here.
Anaya-Aguirre claims the district judge referred to
these two cases not by way of analogy in relation to the
estoppel issue but instead because the judge believed
“that the two Supreme Court opinions cited above pre-
cluded him from considering a fast-track sentence.”
Def. Br. at 20.
14                                           No. 11-3675

  We are not persuaded that the district judge misunder-
stood his authority. The veteran district judge showed
that he knew he had the discretion to adjust the sentence
downward based on the lack of a fast-track program,
explaining that it would be “an argument for a variance
in the guideline.” The judge correctly acknowledged
that the argument was not a legal argument so much as
an argument for an exercise of his discretion to sen-
tence below the guideline range, and the judge actually
exercised that discretion to sentence below the range
on other grounds. The district judge did not legally err
in his understanding of fast-track disparity mitigation
arguments at sentencing.


 C. Substantive “Requirements” in Ramirez
  Anaya-Aguirre claims that several of the supposed
requirements Ramirez places on defendants who want
to raise fast-track disparity arguments at sentencing are
unconstitutional. He argues that the “requirement” that
a defendant inform the sentencing court of districts in
which he would not be eligible for a fast-track sentence
violates his Fifth Amendment privilege against self-
incrimination. He also argues that the supposed require-
ment that the defendant enter into a plea agreement
with the government to argue a fast-track disparity
violates the procedural and equal protection aspects of
the Fifth Amendment Due Process Clause. Finally, he
argues that “this court lacks the authority to impose
prerequisites for fast track.” Although we are skeptical
about these arguments for various reasons, we address
No. 11-3675                                            15

and reject these theories together because they are all
based on the same mistaken view that Ramirez placed
obligations on the defendant. It did not.
   Ramirez spelled out the circumstances under which
it would and would not be an error for a district judge
to reject a fast-track disparity mitigation argument
without giving reasons on the record. As we said in
Ramirez, itself, “[n]othing in this opinion precludes a
district court judge from considering a mitigation argu-
ment.” 675 F.3d at 641 n.2. Anaya-Aguirre’s rights could
not have been infringed in any of the ways he claims.
Ramirez simply clarified what constitutes a fast-track
disparity argument with enough substance to require
the district court to respond to it.
  Anaya-Aguirre argues that if Ramirez requires defen-
dants to tell the sentencing court where the defendant
would not be eligible for a fast-track sentence, that re-
quirement violates the defendant’s Fifth Amendment
privilege against self-incrimination. The relationship of
the privilege against self-incrimination to a defendant’s
voluntary decision to make a mitigating argument
at sentencing for which he clearly has the burden of
proof is tenuous at best. It is not unusual or unconstitu-
tional to require or at least to expect a defendant who
seeks leniency in sentencing to accept responsibility and
to be candid with the court about his crime. But even
if there were a theoretical foundation for this argu-
ment, again, Ramirez does not require the defendant to
do anything, nor does it create prerequisites or require-
ments that a defendant must meet before being able
to present this argument in mitigation.
16                                            No. 11-3675

  Even the narrow issue Ramirez addressed does not
require the defendant to tell the sentencing court in
which districts he would not be eligible for a fast-track
sentence. Ramirez states that 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 pro-
grams for which he would not qualify.” 675 F.3d at 636.
This is a recommendation, not a requirement, and this
claim therefore fails without needing further analysis.
The same logic disposes of Anaya-Aguirre’s claim that
Ramirez is unconstitutional because it requires a plea
agreement with the government; it requires no such thing.
  The argument that this court lacks the authority to
impose prerequisites for fast-track sentences fails for
the same reasons. We have never imposed requirements
that a defendant must fulfill before making a fast-track
disparity argument at sentencing. Defendants may
make any arguments they wish, and district judges
retain broad discretion in considering arguments in
aggravation and mitigation. In Ramirez we established
only a framework telling sentencing judges when they
need to address specifically this particular mitiga-
tion argument. We thus reject all of these arguments
by Anaya-Aguirre.


 D. Due Process and “Retroactive” Application of Ramirez
 Finally, Anaya-Aguirre argues that his sentence was
unconstitutional on the theory that the district court
No. 11-3675                                          17

applied the expectations of Ramirez retroactively. The
short answer to that argument is that we applied the
ruling in Ramirez to the appellants in the Ramirez
appeals themselves. Moreover, Anaya-Aguirre failed to
satisfy even the known expectations already set forth in
the Reyes-Hernandez opinion: that he show he would
have been eligible for fast-track status and that he
would have opted for that approach. In fact, he did not.
He did not plead guilty promptly, but waited four
months after indictment to do so. He did not offer a
waiver of appellate rights at that time, waiting another
six months until he was sentenced to offer such a
waiver. Even then he did so in only a conditional way.
He also did not show that he had met the Attorney Gen-
eral’s original minimum criteria for eligibility, which
includes accepting the government’s version of the
offense. See 2003 DOJ Memorandum (listing five
universal requirements defendant must satisfy to be
eligible for a fast-track sentence). Anaya-Aguirre’s due
process theory thus fails without even exploring some
of the more fundamental problems with the theory.
 The judgment of the district court is A FFIRMED.




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