Government Cannot Refuse to Move for Third Point of Acceptance Due to Sentencing Litigation

United States v. Castillo, 779 F.3d 318 (5th Cir. Feb. 26, 2015) (Benavides, Prado, Graves)

Castillo pled guilty to bank robbery of over $1,000.  The PSR held her accountable for stealing $690,000 and added 14 levels to the base offense level.  Castillo filed written objections, denying that she confessed to stealing $690,000 and arguing that the evidence showed an amount between $70,000 and $120,000, justifying only an 8-level increase.  The district court held a hearing, heard testimony, and adopted the loss amount in the PSR.  The Government then refused to move for the third point of acceptance, despite the representation in the PSR that it would so move at the time of sentencing.  The Government argued that it had been essentially taken to the task of trial and had not saved any resources.

The panel reviewed the language of U.S.S.G. § 3E1.1(b), Amendment 775 (Government cannot refuse to move for the third point if the defendant does not waive appeal), and sister circuits’ decisions.  The panel found that the Government can refuse to file a § 3E1.1(b) motion based on any interest identified in § 3E1.1(a) or (b).  Those interests, however, do not include preparing for a sentencing hearing.

Despite those clear findings, the majority went on to limit this holding only to good faith disputes: “[I]f the defendant has a good faith dispute as to the accuracy of the factual findings in the PSR, it is impermissible for the government to refuse to move for a reduction under § 3E1.1(a) simply because the defendant requests a hearing to litigate the issue.”  Since the district court did not find that Castillo litigated the issue in good faith, the panel vacated the sentence and remanded for determination of that fact issue.

Judge Graves concurred in part and dissented in part.  He reasoned that Castillo was entitled to a resentencing regardless of a finding of good faith because the plain language of § 3E1.1 focuses on trial, not sentencing, preparation as a reason to withhold a motion for the third point.  Given the plain language of the guideline, Judge Graves argued it is unnecessary to reach the constitutional issue of a defendant’s due process right to challenge PSR findings, which is the context in which the Second Circuit discussed the good faith requirement.

So, continue to litigate sentencing issues (in good faith) without fear of losing the third point of acceptance of responsibility.