Circuit Split: Fourth Circuit Holds Government May Not Condition Motion for Third Acceptance Level on Appeal Waiver

United States v. Divens, No. 09-4967 (4th Cir. July 5, 2011) (Motz, Gregory, Shedd)

As you'll recall, the Fifth Circuit held in United States v. Newson that the Government may refuse to move for the third acceptance level under guideline §3E1.1(b) if a defendant refuses to enter a plea agreement containing an appeal waiver. Agreeing with the Ninth and Tenth Circuits, Newson held that the scope of the Government's discretion in this regard is the same as it is with motions for substantial assistance departures under §5K1.1.

Not so, says the Fourth Circuit in Divens. The text of §3E1.1 and its related commentary differ from that of §5K1.1.  The only discretion the Government has under §3E1.1(b) is in determining whether the defendant gave timely notification of his intention to plead guilty, such that it allowed the Government to allocate its resources efficiently and avoid having to prepare for trial. Conditioning a third-level motion on an appeal waiver is verboten.

The opinion notes that the First and Seventh Circuits share the Fifth Circuit's view, making the split at least 5 to 1.