Friday, February 29, 2008

Defendant's Refusal to Enter Plea Agreement Containing Appeal Waiver Justifies Government's Refusal to Move for Third Acceptance Level

United States v. Newson, No. 06-41115 (5th Cir. Jan. 22, 2008) (Higginbotham, Davis, Smith)

Newson pleaded guilty, without a plea agreement, to possession of marijuana with intent to distribute. The Government refused to move for the third acceptance level, candidly admitting that its only reason for doing so was because Newson declined to enter a plea agreement containing an appeal waiver. Newson objected and asked alternatively for a one-level departure. The district court overruled the objection, concluded that a departure was not authorized, and sentenced Newsom to 41 months' imprisonment---the low end of the Guidelines range. The court added that "if the third-level decrease had been available (thus changing the guideline range to 37 to 46 months), it would have imposed a 37-month sentence."

Newson appealed his sentence, challenging the Government's refusal to move for the third level on a couple of grounds. First, he argued that the PROTECT Act's amendment to the acceptance guideline, which made the third point conditional on a Government motion, "violates principles of separation of powers by shifting judicial power to the executive branch." The court rejected that argument, without much discussion. It followed the lead of an unpublished Fifth Circuit opinion which apparently held that since Booker "reaffirmed" Mistretta, "Booker forecloses the claim that §3E1.1(b) results in an unconsitutional violation of the separation-of-powers doctrine." According to the court, "[t]wo other circuits are in accord." (citing unpublished opinions).

Second, Newson argued that the Government's refusal to move for the third acceptance level "was irrational and punitive and not based on a legitimate governmental purpose." He also "contend[ed] that § 3E1.1(b)’s purpose is to prevent a waste of prosecutorial and judicial resources at the trial-court level and that the Guideline contains no nexus between post-judgment proceedings and a defendant’s timely pretrial action." The Government countered that 1) "§ 3E1.1(b) 'can reasonably be interpreted' to encompass not only the expenditure of the Government’s time and effort at the prejudgment stage but also in appellate or collateral-review proceedings," and that "conserving its resources in post-judgment proceedings serves a legitimate governmental interest[;]" and 2) "Newson’s desire to preserve his post-judgment rights shows that he has not 'accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner.'" (quoting guideline commentary).

The court first held that the third level cannot be awarded absent a Government motion. It then agreed with the Ninth and Tenth Circuits that the Government has the same discretion to to file a third-level motion as it does with a §5K1.1 substantial assistance motion. The court also agreed with the Tenth Circuit's conclusion that “a court can review the government’s refusal to file a Section 3E1.1(b) motion and grant a remedy if it finds the refusal was (1) animated by an unconstitutional motive, or (2) not rationally related to a legitimate government end.” Applying that standard here, the court asserted, with little supporting analysis, that "[t]he defendant’s refusal to waive his right to appeal is a proper basis for the Government to decline to make such a motion, as it is rationally related to the purpose of the rule and is not based on an unconstitutional motive."

Newsome also argued that his sentence was substantively unreasonable due to the district court's refusal to impose a below-Guidelines sentence equivalent to what the low end of the range would have been had the Government moved for the third level. The court held that Newsom failed to overcome the presumption of reasonableness because the district court was aware of its authority to depart or vary and saw no reason for doing so.

This decision is wrong, for a couple of reasons. First, the court's conclusion that the Government has discretion whether to move for the third level, just as it does under §5K1.1, is incorrect. That interpretation is not supported by the text of §3E1.1, and is inconsistent with the overall structure of §3E1.1. Recall that prior to the PROTECT Act, the third level was not discretionary; instead, it kicked in automatically once the court made two factual determinations: 1) that the defendant had accepted responsibility under subsection (a), thus entitling him to the first two levels, and 2) that the acceptance was sufficiently timely to allow the court and the Government to conserve resources. The court could not deny the third level on the ground that the defendant had sufficiently accepted responsibility for only two levels worth of relief, rather than three levels.

The post-PROTECT Act version of §3E1.1 is structured the same way. The only difference is in the identity of the fact-finder for fact #2; instead of the Court, it's the Government. There's nothing in the text of §3E1.1 or its accompanying commentary that suggests the PROTECT Act also changed the nature of the subsection (b) determination from a factual finding to a discretionary judgment. Thus, the third-level motion should be seen as more of a certification that the Government is required to make once the factual predicate exists. The guideline's unchanged structure also suggests that the Government's cannot withhold certification of the third level if it doesn't feel the defendant has sufficiently accepted responsbility, just as, prior to the PROTECT Act, a court could not reconsider the acceptance question anew when it came time to determine eligibility for the third level.

Second, even if the third-level motion is discretionary, it does not follow that a defendant's refusal to waive appeal is a legitimate basis for the Government to refuse to file the motion. The guideline and the commentary repeatedly refer to expenditure of resourses for "trial" preparation, not any and all resources that will be expended until the defendant ultimately completes his sentence and any term of supervised release. Although the background commentary does refer to a "defendant [who] has accepted responsbility in a way that ensures the certainty of his just punishment in a timely manner," a defendant's reservation of his right to appeal isn't inconsistent with that goal, especially when most appeals in this situation will involve sentencing error that won't manifest itself until after the defendant has pleaded guilty.

Let's hope Newson isn't the last word on this.

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