AMENDMENT 820

Amendment: Section 3E1.1(b) is amended by inserting after “1 additional level.” the following: “The term ‘preparing for trial’ means substantive preparations taken to present the government’s case against the defendant to a jury (or judge, in the case of a bench trial) at trial. ‘Preparing for trial’ is ordinarily indicated by actions taken close to trial, such as preparing witnesses for trial, in limine motions, proposed voir dire questions and jury instructions, and witness and exhibit lists. Preparations for pretrial proceedings (such as litigation related to a charging document, discovery motions, and suppression motions) ordinarily are not considered ‘preparing for trial’ under this subsection. Post-conviction matters (such as sentencing objections, appeal waivers, and related issues) are not considered ‘preparing for trial.’ ”.

The Commentary to §3E1.1 captioned “Application Notes” is amended in Note 6 by striking “The government should not withhold such a motion based on interests not identified in §3E1.1, such as whether the defendant agrees to waive his or her right to appeal.”.

Reason for Amendment: This amendment responds to circuit conflicts over whether a reduction under subsection (b) of §3E1.1 (Acceptance of Responsibility), which requires a motion from the government, may be withheld or denied if a defendant moves to suppress evidence or raises sentencing challenges. The amendment addresses the circuit conflicts by providing a definition of the term “preparing for trial,” which appears in §3E1.1(b) and Application Note 6 to §3E1.1. The amendment also deletes hortatory language that the Commission previously added to Application Note 6 providing that the “government should not withhold such a motion based on interests not identified in §3E1.1, such as whether the defendant agrees to waive his or her right to appeal.” See USSG App. C, amend. 775 (effective Nov. 1, 2013).

The amendment defines “preparing for trial” as “substantive preparations taken to present the government’s case against the defendant to a jury (or judge, in the case of a bench trial) at trial.” The amendment further provides examples of actions that ordinarily indicate preparing for trial (such as preparing witnesses for trial, in limine motions, proposed voir dire questions and jury instructions, and witnesses and exhibit lists). The amendment further provides that preparations for pretrial proceedings (such as litigation related to a charging document, discovery motions, and suppression motions) ordinarily are not considered preparing for trial, and that post-conviction matters (such as sentencing objections, appeal waivers, and related issues) are not considered preparing for trial.

As Justices Sotomayor and Gorsuch observed in 2021, the conflict as to whether a suppression hearing is a valid basis for denying a §3E1.1(b) reduction is both longstanding and has a potentially significant impact on defendants. See Longoria v. United States, 141 S. Ct. 978, 979 (2021) (statement of Sotomayor, J., with whom Gorsuch, J. joins, respecting the denial of certiorari, “emphasiz[ing] the need for clarification from the Commission” on this “important and longstanding split among the Courts of Appeals over the proper interpretation of § 3E1.1(b)”). Three circuits (the Third, Fifth, and Sixth Circuits) have permitted the government to withhold a §3E1.1(b) motion based on a suppression motion, while five circuits (the First, Second, Ninth, Tenth, and D.C. Circuits) have held that a reduction may not be denied based on a suppression motion. Compare United States v. Longoria, 958 F.3d 372 (5th Cir. 2020), cert. denied, 141 S. Ct. 978 (2021), United States v. Collins, 683 F.3d 697 (6th Cir. 2012), and United States v. Drennon, 516 F.3d 160 (3d Cir. 2008), with United States v. Vargas, 961 F.3d 566 (2d Cir. 2020), United States v. Price, 409 F.3d 436 (D.C. Cir. 2005), United States v. Marquez, 337 F.3d 1203 (10th Cir. 2003), United States v. Marroquin, 136 F.3d 220 (1st Cir. 1998), and United States v. Kimple, 27 F.3d 1409 (9th Cir. 1994).

Similarly, the First, Third, Seventh, and Eighth Circuits have held that the government may withhold a §3E1.1(b) motion based on sentencing challenges, while the Second and Fifth Circuits have held that it may not. Compare United States v. Adair, 38 F.4th 341 (3d Cir. 2022), United States v. Jordan, 877 F.3d 391 (8th Cir. 2017), United States v. Sainz-Preciado, 566 F.3d 708 (7th Cir. 2009), and United States v. Beatty, 538 F.3d 8 (1st Cir. 2008), with United States v. Castillo, 779 F.3d 318 (5th Cir. 2015), and United States v. Lee, 653 F.3d 170 (2d Cir. 2011).

These conflicts have resulted in variation in §3E1.1(b) motion practice across—and even within—judicial districts. In some jurisdictions, defendants receive the additional reduction as a matter of course, even if they assert pre-trial or post-conviction challenges. In others, the §3E1.1(b) motion has been withheld based on motions to suppress, sentencing challenges, or other grounds. Because the sentencing impact of losing one additional level under §3E1.1(b) can be significant, the practice in the latter districts has had a chilling effect, deterring defendants from pursuing certain evidentiary and sentencing challenges.

The Commission promulgated this amendment to decrease variation between jurisdictions in applying §3E1.1(b). The amendment also aims to minimize any deterrent effect on defendants’ ability to exercise their constitutional rights. See also §3E1.1, comment. (n.2) (allowing consideration for the adjustment where a defendant exercises constitutional rights to trial to raise a constitutional challenge to a statute or challenge the applicability of a statute to the defendant’s conduct).

In promulgating this amendment, the Commission recognizes that these circuit conflicts involve guideline and commentary provisions that Congress directly amended, and that Congress also directed the Commission not to “alter or repeal” the congressional amendments. See Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. 108–21, § 401(g), (j)(4), 117 Stat. 650. In recognition of this limitation, the amendment defines a term that the congressional amendments did not define—“preparing for trial”—without altering or repealing the amendments that Congress made.

Effective Date: The effective date of this amendment is November 1, 2023.