AMENDMENT 775

Amendment: The Commentary to §3E1.1 captioned “Application Notes” is amended in Note 6 by adding at the end of the paragraph that begins “Because the Government” the following as the last sentence: “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.”; and

by adding after the paragraph that begins “Because the Government” the following new paragraph:

“If the government files such a motion, and the court in deciding whether to grant the motion also determines that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, the court should grant the motion.”.

The Commentary to §3E1.1 captioned “Background” is amended in the paragraph that begins “Section 401(g)” by striking “the last paragraph” and inserting “the first sentence of the second paragraph”.

Reason for Amendment: This amendment addresses two circuit conflicts involving the guideline for acceptance of responsibility, §3E1.1 (Acceptance of Responsibility). A defendant who clearly demonstrates acceptance of responsibility for his offense receives a 2‑level reduction under subsection (a) of §3E1.1. The two circuit conflicts both involve the circumstances under which the defendant is eligible for a third level of reduction under subsection (b) of §3E1.1. Subsection (b) provides:

(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

The first circuit conflict involves the government’s discretion under subsection (b) and, in particular, whether the government may withhold a motion based on an interest not identified in §3E1.1, such as the defendant’s refusal to waive his right to appeal. The second conflict involves the court’s discretion under subsection (b) and, in particular, whether the court may decline to apply the third level of reduction when the government has moved for it.

These circuit conflicts are unusual in that they involve guideline and commentary provisions that Congress directly amended. See section 401(g) of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. 108–21 (the “PROTECT Act”); see also USSG App. C, Amendment 649 (effective April 30, 2003) (implementing amendments to the guidelines made directly by the PROTECT Act). They also implicate a congressional directive to the Commission not to “alter or repeal” the congressional amendments. See section 401(j)(4) of the PROTECT Act. Accordingly, in considering these conflicts, the Commission has not only reviewed public comment, sentencing data, case law, and the other types of information it ordinarily considers, but has also studied the operation of §3E1.1 before the PROTECT Act, the congressional action to amend §3E1.1, and the legislative history of that congressional action.

The Government’s Discretion to Withhold the Motion

The first circuit conflict involves the government’s discretion under subsection (b) and, in particular, whether the government may withhold a motion based on an interest not identified in §3E1.1, such as the defendant’s refusal to waive his right to appeal.

Several circuits have held that a defendant’s refusal to sign an appellate waiver is a legitimate reason for the government to withhold a §3E1.1(b) motion. See, e.g., United States v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009) (holding that “allocation and expenditure of prosecutorial resources for the purposes of defending an appeal is a rational basis” for such refusal); United States v. Deberry, 576 F.3d 708, 711 (7th Cir. 2009) (holding that requiring the defendant to sign an appeal waiver would avoid “expense and uncertainty” on appeal); United States v. Newson, 515 F.3d 374, 378 (5th Cir. 2008) (holding that the government’s interests under §3E1.1 encompass not only the government’s time and effort at prejudgment stage but also at post-judgment proceedings).

In contrast, the Fourth Circuit has held that a defendant’s refusal to sign an appellate waiver is not a legitimate reason for the government to withhold a §3E1.1(b) motion. See United States v. Divens, 650 F.3d 343, 348 (4th Cir. 2011) (stating that “the text of §3E1.1(b) reveals a concern for the efficient allocation of trial resources, not appellate resources” [emphasis in original]); see also United States v. Davis, 714 F.3d 474, 476 (7th Cir. 2013) (Rovner, J., concurring) (“insisting that [the defendant] waive his right to appeal before he may receive the maximum credit under the Guidelines for accepting responsibility serves none of the interests identified in section 3E1.1”). The majority in Davis called for the conflict to be resolved, stating: “Resolution of this conflict is the province of the Supreme Court or the Sentencing Commission.” Davis, 714 F.3d at 475 (per curiam). The Second Circuit, stating that the Fourth Circuit’s reasoning in Divens applies “with equal force” to the defendant’s request for an evidentiary hearing on sentencing issues, held that the government may not withhold a §3E1.1 motion based upon such a request. See United States v. Lee, 653 F.3d 170, 175 (2d Cir. 2011).

The PROTECT Act added Commentary to §3E1.1 stating that “[b]ecause the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing.” See §3E1.1, comment. (n.6). The PROTECT Act also amended §3E1.1(b) to provide that the government motion state, among other things, that the defendant’s notification of his intention to enter a plea of guilty permitted “the government to avoid preparing for trial and . . . the government and the court to allocate their resources efficiently . . . .”

In its study of the PROTECT Act, the Commission could discern no congressional intent to allow decisions under §3E1.1 to be based on interests not identified in §3E1.1. Furthermore, consistent with Divens and the concurrence in Davis, the Commission determined that the defendant’s waiver of his or her right to appeal is an example of an interest not identified in §3E1.1. Accordingly, this amendment adds an additional sentence to the Commentary stating that “[t]he 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.”

The Court’s Discretion to Deny the Motion

The second conflict involves the court’s discretion under subsection (b) and, in particular, whether the court may decline to apply the third level of reduction when the government has moved for it.

The Seventh Circuit has held that if the government makes the motion (and the other two requirements of subsection (b) are met, i.e., the defendant qualifies for the 2-level decrease and the offense level is level 16 or greater), the third level of reduction must be awarded. See United States v. Mount, 675 F.3d 1052 (7th Cir. 2012).

In contrast, the Fifth Circuit has held that the district court retains discretion to deny the motion. See United States v. Williamson, 598 F.3d 227, 230 (5th Cir. 2010). In Williamson, the defendant was convicted after jury trial but successfully appealed. After remand, he pled guilty to a lesser offense. The government moved for the third level of reduction, but the court declined to grant it because “regardless of however much additional trial preparation the government avoided through Williamson’s guilty plea following remand, the preparation for the initial trial and the use of the court’s resources for that trial meant that the § 3E1.1(b) benefits to the government and the court were not obtained.” Id. at 231. The Fifth Circuit affirmed, holding that the decision whether to grant the third level of reduction “is the district court’s — not the government’s — even though the court may only do so on the government’s motion.” Id. at 230.

This amendment amends the Commentary to §3E1.1 by adding the following statement: “If the government files such a motion, and the court in deciding whether to grant the motion also determines that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, the court should grant the motion.”

In its study of the PROTECT Act, the Commission could discern no congressional intent to take away from the court its responsibility under §3E1.1 to make its own determination of whether the conditions were met. In particular, both the language added to the Commentary by the PROTECT Act and the legislative history of the PROTECT Act speak in terms of allowing the court discretion to “grant” the third level of reduction. See USSG §3E1.1, comment. (n.6) (stating that the third level of reduction “may only be granted upon a formal motion by the Government”); H.R. Rep. No. 108–66, at 59 (2003) (Conf. Rep.) (stating that the PROTECT Act amendment would “only allow courts to grant an additional third point reduction for ‘acceptance of responsibility’ upon motion of the government.”). In addition, the Commission observes that one of the considerations in §3E1.1(b) is whether the defendant’s actions permitted the court to allocate its resources efficiently, and the court is in the best position to make that determination. Accordingly, consistent with congressional intent, this amendment recognizes that the court continues to have discretion to decide whether to grant the third level of reduction.

Finally, and as mentioned above, the Commission in its study of the PROTECT Act could discern no congressional intent to allow decisions under §3E1.1 to be based on interests not identified in §3E1.1. For that reason, this amendment indicates that, if the government has filed the motion and the court also determines that the circumstances identified in §3E1.1 are present, the court should grant the motion.

Effective Date: The effective date of this amendment is November 1, 2013.