Thursday, August 12, 2010

Court May Deny Third Acceptance Point, Even if Government Moves for It

United States v. Williamson, 598 F.3d 227 (5th Cir. 2010) (Smith, Clement, Owen)

Post-PROTECT Act, a government motion is a necessary condition for the third acceptance point under guideline §3E1.1(b). But it is sufficient? No.

Williamson went to trial on a 50+ gram crack charge a few years ago. He was convicted. On appeal, the Fifth Circuit reversed his conviction due to a Batson violation during jury selection. On remand, he pleaded guilty—with an agreement—to a one-count superseding information charging him with PWID 5+ grams of crack. The government also filed a motion for the third acceptance point. But the PSR only gave Williamson 2 points for acceptance. The district court adopted the PSR, over Williamson's objection.

On appeal, Williamson argued that "§ 3E1.1(b) . . . does not give the district court independent authority to conclude that hte reduction is unwarranted where the government has filed a motion asking for it." In support, Williamson pointed to the text of § 3E1.1(b) itself, as well as an application note, that make clear that a government motion is a precondition to the third point. According to Williamson, "[those] passages . . . make it plain that it is the government that determines whether a defendant warrants an additional oine-point reduction and that upon a motion stating such, the court has no choice but to grant it."

Not so, said the court. The reasons:
  • While it's true that the guideline requires a government motion, "there is no additional language precluding a role for the court in determining whether the plea 'thereby permitt[ed] the government to avoid preparing for trial and permitt[ed] the government and the court to allocate their resources efficiently.'"
  • Although the commentary states that "'the Government is in the best position to determine whether the defendant has assisted authorities . . . ,'" that's only by way of explaining why the motion is required.
  • Another comment explains that the "'sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility.'" That comment does not, by its terms, limit its reach to only the initial 2-point determination.
  • An unpublished Fifth Circuit decision held as such. A Second Circuit case suggests the same thing [although Williamson appears to be reading too much into it]. And the Eighth Circuit has remanded a case for "'"content specific" findings regarding the one-level acceptance of responsibility,' suggesting that the sentencing court has a role in determining whether the § 3E1.1(b) criteria are met."
Thus, both the government and the court must agree that the third point is warranted.

Williamson also argued that, even if the district court can deny the third point, it was error to do so here.
The [district] court overruled Williamson’s objection to the PSR, finding that (1) his guilty plea did not significantly assist the government, because it would not have taken many resources to prepare for a retrial; (2) he did not timely notify the government of his intent to plead guilty, because the case initially went to trial; and (3) he did not use the court’s resources efficiently.

Not error, says the court of appeals. The district court may consider the fact that Williamson decided on a trial the first go-round, and pleaded guilty only after getting a second bite at the apple. Plus, the court had to expend resources on the first trial, so it had a basis for finding awarding the third point would not comport with §3E1.1(b)'s efficiency rationale.



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