FILED
Sep 18 2012
United States District Court
Northern District of Ohio
General Order
GENERAL ORDER NO. 2012-18
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
)
APPROVAL OF THE ILLEGAL )
REENTRY FAST-TRACK PROGRAM ) ORDER NO. 2012-18
AND POLICY FOR THE NORTHERN )
DISTRICT OF OHIO )
)
A majority of the judges of this Court, by mail vote taken pursuant to Sixth
Amended Administrative Order No. 95-22, approved the Illegal Reentry Fast-Track
Program Policy and Procedures for the Northern District of Ohio.
IT IS SO ORDERED.
FOR THE COURT
Solomon Oliver, Jr.
Chief Judge
United States District Court
NORTHERN DISTRICT OF OHIO ILLEGAL REENTRY FAST-TRACK PROGRAM
POLICY AND PROCEDURES
Effective March 1, 2012
[Revised 8-28-12]
Introduction
In accordance with the directives and guidance contained in
the memorandum from Deputy Attorney General James Cole dated
January 31, 2012 relating to the implementation of a new national
fast-track program, effective March 1, 2012 defendants who are
charged under 8 U.S.C. § 1326 with illegal reentry into the
United States after having previously been removed are
potentially eligible for a downward departure from the total
offense level (TOL) found by the District Court (after
application of the adjustment for acceptance of responsibility).
Those with a criminal history category (CHC) of V or below and
who have no prior felony convictions for a serious violent
offense and are otherwise not disqualified are potentially
eligible for a four-level downward departure from the TOL; those
with a CHC of VI who otherwise are not disqualified are
potentially eligible for a two-level downward departure, with
supervisory approval and on a case-by-case basis, after
considering the interest of public safety. Set forth below are
the eligibility requirements for a downward departure pursuant to
this fast-track program, as well as certain specified
disqualifiers.
Eligibility Requirements
In order to qualify for a four-level downward departure, a
defendant charged with a violation of 8 U.S.C. § 1326 must:
1. Absent exceptional circumstances (such as the denial of
adequate assistance of counsel or a substantial delay in
necessary administrative procedures), agree within 30 days of
being taken into custody on the illegal reentry charge to enter
into a written plea agreement with the government. In order to
facilitate a defendant’s expeditious determination whether to
plead guilty, AUSAs should provide discovery at the defendant’s
first appearance in court, or as soon thereafter as is
practicable.
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2. Enter into a written plea agreement with the government
that includes the following terms:
a. the defendant agrees to a factual basis that
accurately reflects his or her offense conduct and stipulates to
the facts related to the prior conviction(s) and removal(s);
b. the defendant agrees not to file any of the motions
described in Fed.R.Crim.P. 12(b)(3);
c. the defendant agrees to waive the right to argue
for a departure or variance under 18 U.S.C. § 3553(a);
d. the defendant agrees to waive the right to appeal
and the opportunity to challenge his or her conviction under 28
U.S.C. § 2255, except on the claims of ineffective assistance of
counsel or prosecutorial misconduct;
e. the defendant agrees not to contest detention or
request a preliminary hearing until a decision has been made that
the defendant will not participate in, or is not eligible for,
the fast track program; and
f. the defendant agrees to waive the timeline
requirements set out in local rule 32.2 regarding presentence
reports and sentencing proceedings. Additionally, the defendant
agrees to waive the objection period and agrees to handle all
objections at sentencing.
g. the defendant, based upon his own knowledge of the
facts associated with the prosecution, does not require full
disclosure and examination of the A-File or otherwise extensive
additional discovery.
Disqualifiers
Defendants who might otherwise qualify for a two- or four-
level downward departure under the specified criteria above may
be disqualified from participation in the fast-track program
under the following circumstances:
1. the defendant previously has been convicted of a serious
violent felony, an offense related to firearms, or a narcotics
offense involving drug trafficking or possession of narcotics in
trafficking amounts;
2. the defendant previously has been removed from the
United States four or more times prior to the instant illegal
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reentry offense;
3. the defendant previously has been convicted under 8
U.S.C. § 1326 for illegal reentry or other immigration-related
offenses;
4. the defendant previously participated in a fast-track
program;
5. the defendant is part of an independent federal criminal
investigation;
6. the defendant is under any form of court or correctional
supervision; or
7. the circumstances at the time of the defendant’s arrest
or the nature and extent of his or her previous criminal record
(including consideration of original charges as well as final
dispositions) warrant disqualification from the fast-track
program and a supervisor has approved such ad hoc
disqualification.
Procedures and Definitions
The determination whether a defendant satisfies the
eligibility requirements for participation in the fast-track
program, or whether a defendant is rendered ineligible based on
one or more of the specified disqualifiers, shall be made by the
United States Attorney’s Office alone. In so doing, it may
consider any information that it deems relevant and reliable,
without limitation, including court records, criminal records,
law enforcement investigative reports, and law enforcement
intelligence information.
The term “serious violent felony” as used herein includes,
but is not limited to, murder, kidnapping, voluntary
manslaughter, forcible sex offenses, child exploitation offenses
(including those involving the possession, receipt, distribution
or production of child pornography and any contact sex offenses
with minors), drug trafficking offenses, firearms offenses, or
any other offenses which otherwise reflect a history of serious
violent crime.
A. Availability of full presentence report procedures
A Fast-Track Discovery Package will be provided to the
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defense attorney at the initial appearance. A duplicate copy of
that discovery will be provided to a representative of the
Pretrial Services and Probation Office together with a stamped
copy of the complaint and arrest warrant and a cover sheet
designating the case as a potential fast-track prosecution. The
cover sheet will include contact information for the case agent,
who should expect a call from the assigned probation officer
regarding the contents of the alien’s official records, commonly
referred to as the A-File.
Within approximately one business day, an officer will
be assigned to the defendant’s case and be responsible for
preparing the presentence report. With a waiver of local Rule
32.2 timelines and the district judge’s acquiescence in
permitting the objection period to be waived, presentence reports
for the typical Fast-Track case will be disclosed to all parties
and the court 7 days prior to sentencing but no less than 45 days
from the date of initial appearance. If the court requires the
objections to be submitted and reviewed by probation, an
additional fourteen days will be added to the process.
Timely preparation of the presentence report is dependent
upon the U.S. Pretrial Services and Probation Office being able
to interview the defendant in a timely fashion. Defense counsel
are to make a reasonable effort to be available for the
interview, which may be conducted as early as the date of the
arraignment.
The waiver of the formal reporting of objections to the
officer does not alleviate the defense attorney’s responsibility
to review the entire report with his or her client prior to the
sentencing date. Any objections by either party should be
submitted to the court in writing or as part of any written
sentencing memorandum.
B. Discovery Procedures
The discovery package defense counsel will receive at the
initial appearance will contain the following information: Prior
deportations, including notice of charges, any order of removal,
and warrant of removal (for reinstatements, the reinstatement
order and the warrant of removal); any and all Brady material in
the possession of the prosecution team; information regarding the
current encounter, including Record of Deportable Alien or other
investigative reports; any statement made by the defendant;
police report(s)(if applicable); fingerprint card(s); and prior
criminal record documents, including (if available) indictment,
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plea, and sentencing journal entries.
Involvement in the Fast-Track Program does not relieve
defense counsel of his or her discovery obligations, including
the obligation to review all discovery received and to consult
with the defendant about the same.
C. Preliminary Examinations, Detention Hearings, and
Waivers
The defendant shall waive the preliminary examination and
Pretrial detention hearing at the initial appearance, reserving
the right to those hearings if a defendant opts out of
participation in the program. The required waiver form shall
provide for the following additional waivers:
1. The waiving of the 30 day time limit for filing the
criminal indictment or information and an extension of 15
additional days for such filing;
2. The defendant’s Consent to the Court’s Inspection
of Presentence Report Prior to Plea of Guilty, Nolo Contendre, or
Finding of Guilt, and
3. The waiving of the time limits of Local Rule 32.2
including the 14 day period associated with the filing of
objections and a formal response to those objections by the
Pretrial Services and Probation Officer.
Additionally, Defense counsel shall be provided a separate
Waiver of Indictment which needs to be returned to the USAO
within 14 days (ideally within 7 days) of the initial appearance
to facilitate the filing of the criminal information.
D. Criminal Information
Upon receipt of the signed waiver of indictment, the AUSA
shall prepare and file a criminal information charging the
offense of Illegal Reentry following Removal.
Ordinarily, the criminal information will be filed within 10
days of receipt of the notice from the defendant of his/her
desire to participate in the program.
E. Arraignment and Plea Procedures
See the attached standard plea agreement for use in fast-
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track cases. This form will be used to draft the plea agreement.
It is anticipated that the plea of guilty will be made at the
arraignment if that proceeding is set before the district judge.
The plea agreement will provide for a four-level or two-level
reduction in the sentencing guidelines.
If available, the assigned probation officer may seek to
have the initial interview with the defendant conducted
immediately before or following the arraignment if the court-
assigned interpreter is available. This procedure will expedite
the preparation of the presentence report.
The parties will recommend that sentencing be set by the
court no sooner than 49 days following the initial appearance.
F. Sentencing and Presentence Reports
The parties may request the assigned district court judge to
set the sentencing hearing at the earliest date which will allow
for timely disclosure of the presentence report (at least four
days prior to the sentencing to allow for the filing of
objections and the court’s review of the presentence report, but
not sooner than 49 days from the initial appearance).
All objections shall be made in writing to the court and
filed prior to the sentencing date. There will be no first
discloure of the report for the purpose of making written
objections with the pretrial services and probation officer since
that extra disclosure procedure requires an additional fourteen
days.
G. Referral for Removal from the United States
The AUSA will notify the Enforcement and Review Office (ERO)
(charged with the physical removal of aliens from the United
States) of the projected date of release of the defendant from
the sentence of imprisonment (to facilitate an expeditious
removal from the United States). Defendant should cooperate with
ERO’s requests for assistance in obtaining any necessary travel
documents.
H. Non-Fast-Track cases
1. Cases which do not qualify for the Fast-Track
Program will be treated in accordance with usual practices of the
United States Attorney’s Office for the handling of criminal
cases.
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2. If a defendant opts not to participate in the
Fast-Track Program, the defendant will proceed without the
benefit of the departure recommendation associated with the
program.
a. The USAO will immediately notify the United
States Pretrial Services and Probation Office that the defendant
has chosen not to participate in the Fast-Track program.
b. A normal full Presentence Report will be
prepared pursuant to local rule.
3. If defense counsel requests, the assigned
prosecutor will consult with the Chief or Deputy Chief of the
Major and Cyber Crimes Unit of the USAO to confirm that the
defendant does not qualify for participation in the Fast-Track
Program.
a. If the defendant opts out of the program or
fails to qualify for or to fully comply with the requirements of
the program, the USAO will consistently object to variances and
departures based on fast-track policy considerations.
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NOTICE TO DEFENSE ATTORNEY
FAST-TRACK PROGRAM FOR EXPEDITED RESOLUTION OF
“ILLEGAL REENTRY FOLLOWING REMOVAL” PROSECUTIONS
IN THE NORTHERN DISTRICT OF OHIO
Your client is the subject of a criminal complaint charging
illegal reentry following removal. The United States Attorney’s
Office for the Northern District of Ohio (USAO) has identified
your client as being a potential candidate for expedited
prosecution pursuant to this district’s Fast-Track Program. The
Fast-Track Program is not for everyone, including those
defendants seeking to--
-- proceed to trial on the elements of the offense,
-- contest the elements of the offense through pretrial
motions,
-- conduct a full review of the A-File or otherwise
seeking extensive discovery of contested issues, or
-- challenge available evidence through suppression
motions.
However, defendants charged with being illegally present in
the United States following removal often express a desire for an
expedited resolution of the criminal case and to take advantage
of a shorter sentence than normally would apply to such a charge.
For those defendatns, the Fast-Track Program may provide an
opportunity for an expedited resolution of the criminal charges
with exposure to a shorter term of imprisonment.
Your client has been identified as a potential candidate for
participation in our Fast-Track Program. As such, you may wish
to consider waiving the preliminary examination and pretrial
detention hearings while you review the attached fast-track
discovery package and to waive the time limits set out in Local
Rule 32.2 to facilitate the production of a presentence report at
an earlier time than ordinarily is available.
The discovery package you will receive at the initial
appearance will contain the following information: Prior
deportations, including notice of charges, any order of removal,
and warrant of removal (for reinstatements, the reinstatement
order and the warrant of removal); any and all Brady material in
the posession of the prosecution team; information regarding the
current encounter, including Record of Deportable Alien or other
investigative reports, any statement made by the defendant,
police report(s)(if applicable), and fingerprint card(s); and
prior criminal record documents, including (if available)
indictment, plea, and sentencing journal entries.
A fast-track participation waiver of rights form is required
to be executed within one week of arrest. The form will include:
1. Waiver of pretrial detention hearing;
2. Waiver of preliminary examination;
3. Waiver of 30-day speedy indictment provision with an
extension of 15 days for filing of an indictment or
criminal information;
4. Waiver of Local Rule 32.2 and waiver of disclosure of
report for objections; and
5. Request for preparation of a presentence report and
authorization to disclose the report to the court prior
to the filing of the criminal information and the
entering of a plea of guilty.
You can anticipate the criminal information to be filed
within one week of the receipt of the signed waiver of
indictment. The ability to prepare the presentence report within
45 days depends upon the timely receipt from you of requested
documents and the ability of the probation office to conduct the
interview of your client on or as near as possible to the
arraignment date.
Please find attached hereto a copy of the Policy and
Procedures for the NDOH Fast-Track Program for more details and a
sample plea agreement.
Any questions regarding this program can be directed to the
assigned AUSA or to AUSA Phillip J. Tripi at 216-622-3769.
Deputy Criminal Division Chief Sharon Long supervises the
program.
[Notice form revised 8-28-12]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA, ) CASE NO.
)
Plaintiff, ) MAGISTRATE JUDGE
)
-vs- )
)
____________________________, ) WAIVERS AND CONSENTS
) RELATED TO FAST-TRACK
Defendant. ) PROGRAM
)
I, __________________________, request to have my case resolved pursuant to the
(Name of Defendant)
Northern District of Ohio Fast-Track Program. I understand that to accomplish an expedited
resolution of my criminal matter, there are a number of waivers and consents associated with the
program. By signing this document, I voluntarily agree to the waivers and consents provided
below.
WAIVER OF DETENTION HEARING
I, the above-named defendant, having been accused of violating Title 8, United States
Code, Section 1326(a), being advised of the nature of the charge and of my rights and under
advice of counsel, hereby waive in open court my right to a detention hearing and consent that I
be held without bail pursuant to 18 U.S.C. § 3142. I reserve the right to have a hearing at a later
Defendant’s Initials ______
2
time if I choose not to participate in the fast-track program. I understand that I will be detained in
the custody of the U.S. Marshal.
WAIVER OF PRELIMINARY HEARING
I, the above-named defendant, understand that I have been charged with an offense in a
criminal complaint filed in this court. A magistrate judge has informed me of my right to a
preliminary hearing under Fed. R. Crim. P. 5. I agree to waive my right to a preliminary hearing
under Fed. R. Crim. P. 5. I reserve the right to request the hearing at a later time if I choose not to
participate in the fast-track program.
DEFENDANT’S CONSENT TO COURT’S INSPECTION OF PRESENTENCE REPORT
PRIOR TO PLEA OF GUILTY, NOLO CONTENDERE, OR FINDING OF GUILT
AND WAIVER OF TIMELINE REQUIREMENTS IN LOCAL RULE 32.2
I, the above-named defendant, hereby consent to a presentence investigation by the
probation office of the United States District Court and review of my presentence report by a
judge presiding over my case at any time, including the time prior to entry of a plea of guilty or
nolo contendere or a finding of guilt.
I understand that this investigation is being conducted as a pre-plea report (prior to plea or
conviction), and that disclosure of this pre-plea report meets the criteria pursuant to Local Rule
32.2 for full disclosure and objection periods. I further understand that the Probation Office will
Defendant’s Initials ______
3
modify the report only upon order of the sentencing judge. Accordingly, I hereby waive my right
to a second objection period, should the report be modified by order of the Court.
I hereby agree to waive the timeline requirements set out in Local Rule 32.2 regarding
presentence report and sentencing proceedings. Additionally, I agree to waive the objection
period and agree to handle all objections at sentencing.
DEFENDANT’S CONSENT TO WAIVE TIMELINE REQUIREMENT FOR
FILING OF INDICTMENT OR INFORMATION AND EXTENSION OF TIME
I, the above-named defendant, hereby agree to waive the 30-day timeline requirement set
out in 18 U.S.C. § 3161(b) regarding the filing of any information or indictment following the
arrest of an individual on criminal charges. Additionally, I agree to a 15-day extension of the
time period for a total of 45 days from the date of my criminal arrest on the complaint charging
me with illegal reentry following deportation for the filing of the criminal information or
indictment.
Defendant’s Initials ______
4
DEFENDANT’S ACKNOWLEDGMENT
I have read, or had read to me, all of the consents and waivers identified in this document
and fully understand them. No promise has been made to me as to what the final disposition of
my case will be.
____________________________
Defendant
____________________________
Counsel for Defendant
Defendant is ordered detained in custody of U.S. Marshal.
It is so ordered that any criminal information or indictment be filed within 45 days of the
criminal arrest of the defendant.
APPROVED AND ORDERED:
__________________________
United States Magistrate Judge
________________________
Date (Form revised August 28, 2012)
