The United States Sentencing Commission recently released proposed amendments to the Federal Sentencing Guidelines. Among the proposed changes, including changes relating to [insert list here], is a proposed change to the guidelines regarding acceptance of responsibility. The Commission, through this proposed amendment, seeks to reconcile to conflicting circuit opinions regarding the interpretation of the existing guideline.
The proposed amendment addresses not the two-level reduction for a defendant who accepts responsibility, generally by virtue of entering a guilty plea, but the additional third level reduction, the likes of which is available to a defendant only at the discretion of the United States Attorney’s Office.
The language of §3E1.1(b) currently reads:
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.
A split has occurred in the interpretation of this provision relating to whether or not the Court has the discretion to apply the 1 additional level reduction under this Section. As the Commission noted, the Seventh Circuit, in United States v. Mount, 675 F.3d 1052 (7th Cir. 2012), held that if the government moves for the additional 1-level reduction, and all other requirements under that Section are met, the Court must apply the enhancement, affording no discretion to the Court.
The Commission has proposed to adopt the Fifth Circuit’s view in United States v. Williamson, 598 F.3d 227, 230 (5th Cir. 2010), that where the Government makes a motion for the additional 1-level reduction, the ultimate decision lies within the Court’s discretion.
Accordingly, the Commission seeks to Amend note 6 of the Commentary to §3E1.1 to add the following:
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.
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.
As demonstrated here, the Commission also seeks to add the additional language that the motion is not to be withheld by the Government in an instance where a Defendant does not agree to waive his right to an appeal. This also seeks to resolve a split among the circuits, by adopting the Fourth and Seventh Circuits’ position in United States v. Divens, 650 F.3d 343 (4th Cir. 2011), and United States v. Davis, __ F.3d __ (7th Cir. April 9, 2013)(finding that the government’s insistence that the Defendant waive his right to an appeal in order to qualify for the additional reduction does not serve the interests of §3E1.1).
If adopted this amendment as a whole will be bittersweet for defense counsel. While the additional layer of discretion as to whether or not to apply the additional enhancement can only serve to reduce the number of instances where the enhancement will actually be given, the amendment preventing the requirement that a defendant waive his right to appeal in order to receive the enhancement will certainly be valuable to defense counsel when negotiating plea deals.