In U.S. v. Vega-Castillo, No. 07-12141 (Aug. 19, 2008) (2-1, Barkett, J., dissenting), the Court rejected the argument that the sentencing court erred when it declined to consider the "disparity" created by unavailability of a "fast-track" disposition program in the district in which the defendant was convicted for illegal reentry, and sentenced. The Court noted that its prior precedent had held that this "disparity" was not a valid consideration, because it was "implicit" in Congressional policy. The Court held that the United States Supreme Court’s decision in Kimbrough did not abrogate prior precedent, because Kimbrough dealt with crack/powder disparities, not the "fast-track" disparity. Kimbrough therefore merely pit "reasoning against holding," not "holding against holding."
