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Criminal Practice – Sentencing – Prosecutorial Discretion – Acceptance of Responsibility

U.S. v. Divens (Lawyers Weekly No. 11-01-0686, 13 pp.) (Motz, J.) No. 09-4967, July 5, 2011; USDC at Charleston, W.Va. (Goodwin, J.) 4th Cir. Click here for the full-text opinion.

Holding: In order to qualify for a one-level sentence reduction for acceptance of responsibility, a defendant need only timely notify prosecutors of an intention to enter a guilty plea; departing from a standard adopted by other circuits, the 4th Circuit says a district court erred in denying the sentence reduction when the government made no motion because the defendant refused to sign a plea agreement waiving appeal and post-conviction review.

The 4th Circuit vacates a drug defendant’s sentence and says the government can only refuse to move for this sentence reduction based on an interest recognized by the sentencing guideline at issue, USSG ¤ 3E1.1(b).

The government’s sole contention is that defendant’s failure to sign the appellate waiver justifies the government’s refusal to move for the additional one-level reduction under USSG ¤ 3E1.1(b). Although ¤ 3E1.1(b) provides for an additional one-level reduction “upon motion of the government,” the government itself recognizes that its discretion to act is limited.

If this court applies to sentence reductions under ¤ 3E1.1(b) the standard developed in Wade v. U.S., 504 U.S. 181 (1992), and U.S. v. Butler, 272 F.3d 683 (4th Cir. 2001), for application of a different condition for sentence reduction under USSG ¤ 5K1.1, defendant could not prevail. But we have left this question open. Commentary to ¤ 3E1.1(b) indicates the government does not possess the wide discretion afforded by ¤ 5K1.1 in deciding whether to move for the additional one-level reduction provided in ¤ 3E1.1(b).

Under ¤ 3E1.1(b), the government retains discretion to refuse to move for an additional one-level reduction, but only on the basis of an interest recognized by the guideline itself – not, as with ¤ 5K1.1, on the basis of any conceivable legitimate interest.

We recognize that this holding does not accord with that of other circuits, which have concluded the government may withhold a ¤ 3E1.1(b) motion based on any rational interest. In our view, the commentary to ¤ 3E1.1(b) forecloses courts from relying on ¤ 5K1.1 cases in interpreting ¤ 3E1.1(b). Our sister circuits focus almost exclusively on the fact that Congress in 2003 amended ¤ 3E.1(b) to insert the governmental motion requirement. Congress could have amended the ¤ 3E1.1(b) commentary to conform to the ¤ 5K1.1 commentary, but it declined to do so. We cannot agree with our sister circuits that Congress’s insertion into ¤ 3E1.1(b) of the government motion requirement reveals an intent to confer upon the government the wide discretion provided it under ¤ 5K1.1.

The government argues that an appellate waiver like the one it wanted from this defendant serves its interest in avoiding the expense and uncertainty of having to defend the conviction and sentence on appeal and collateral review. This may be so but ¤3E1.1(b) simply does not require a defendant to provide the prosecution with the type of assistance that might reduce the “expense and uncertainty” attendant to an appeal. Instead, it provides that a defendant earns an additional one-level reduction by providing the government one specific form of assistance, by timely notifying authorities of an intention to enter a guilty plea. The guideline does not permit the government to withhold a motion for a one-level reduction because the defendant declined to perform some other act to assist the government. The government is not allowed to withhold the motion on the basis of its interest in conserving appellate resources. The government also has offered no evidence suggesting that appellate waivers actually do further Congress’s purpose in amending ¤ 3E1.1(b).

Finally, when a defendant has unconditionally pled guilty, his refusal to sign such an appellate waiver has no impact on his ability to challenge his conviction or on the government’s need to “anticipate” such a challenge. The plea in and of itself limits his grounds for appeal, restricting subsequent attacks on a conviction to the question of whether the plea was both counseled and voluntary.

We vacate defendant’s sentence and remand for additional proceedings. If the government cannot provide a valid reason for refusing to move for an additional one-level reduction under USSG ¤ 3E1.1(b) and continues to refuse to move for such a reduction, the district court should order the government to file the motion.

Vacated and remanded.


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