The guidelines are a sentencing scheme by which levels are accorded to different factors such as the nature of the crime, the amount of drugs or money involved in the crime, the role played by the defendant in the crime, and whether he “accepted responsibility” which is looked upon favorably. Each factor determines levels and when those levels are added together, the sum correlates to a guideline number, which in turn correlates to range of time within which someone could or should be sentenced to. The courts have decided that this range is not mandatory but “advisory” so a judge in fact could sentence a defendant to a lower or higher sentence than the guideline range recommends.
Acceptance of Responsibility is a term of art that is used for pleading guilty in Federal court and entitles a defendant to a reduction in “levels” or “points” as they are informally called, and thus reduce the sentence. Two levels are automatically accorded to the defendant for pleading guilty, a third is given if the defendant pleads guilty in a “timely” manner, a determination left exclusively in the hands of the prosecutor according to the law. How much discretion the prosecutor has on this issue has rarely been debated or addressed by courts.
Finally, a case has addressed this “third point” issue. For many years, the third “acceptance of responsibility point” – “level,” to be completely faithful to guideline language– was something of a given. As long as the defendant either confessed early or pled guilty timely, the reduction was granted. Later on the guideline was amended to give the prosecutor the power to grant the third point. Effective November 1, 2003, the amended section indicated that a motion by the prosecutor should state “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.” But as will be seen this power is not unfettered, is subject to scrutiny, and in reality is not much of a power.
Defendant Lee pled guilty to a four-count drug indictment without much fanfare. He later objected to several facts contained in the PSR, as he was entitled to do, and the district court scheduled a Fatico hearing (a hearing where the sides must prove what they contend). On the eve of the hearing, the defendant withdrew all but one of the objections, and a pared down hearing went forward on that single objection, which the court resolved in the government’s favor. At sentencing, the government refused to move for the third acceptance point, over Lee’s objection, and the district court refused to compel it. The court imposed a very long, but bottom-of-the-range sentence based on the range resulting from a two-level adjustment.
On appeal, the court of appeals reversed. While a government motion is a “necessary prerequisite” to the third point, the court of appeals for the 2d circuit now holds that a district court can still grant the point if the government’s refusal is based on an unconstitutional motive, or a plea agreement leaves it to the government’s discretion and the government acts in bad faith.
Here, there was no plea agreement, (yet another defendant with the good sense to plead to the indictment when not satisfied with the government’s offer), so only the first option was available, and notwithstanding that the circuit found that the error was of constitutional dimension, the court identified as well another reason for granting the point: the government’s position was “unlawful” – if not unconstitutional. The refusal was not permitted by the “third point” guideline itself, which addresses only avoiding preparing for “trial.”
While Lee put the government to its burden at a Fatico hearing (proving what it claims for sentencing purposes), he undisputedly pled guilty early on and “spared the government from ‘preparing for trial.’” Thus, under the “plain language” of the guideline, “the government’s refusal” was “not justified.” The court also noted that the commentary to the Guideline, § 3E1.1 – which is binding on courts – likewise limits the determination to whether the government has saved resources by avoiding preparing for trial. Thus the message is, that there is more flexibility in getting the third point than a defendant may think. In my experience, most prosecutors go along with this flexibility often according the third point anyway even if when the plea is entered after a deadline to do so has passed.
Finally, and most interestingly – see comments below – the court also held that a defendant has a “due process right to reasonably contest errors in the Presentence Report that affect his sentence” – and that “a defendant should not be punished for doing so.” If there is a “good faith dispute” as to a material fact in the PSR, “the defendant’s request that the dispute be resolved is not a permissible reason for the government to refuse to make the § 3E1.1(b) motion, even if resolution of the dispute requires an evidentiary hearing. The court, not the government, imposes sentence, and the court is entitled to a full and accurate record – as are the parties.”
Comment
There are several interesting issues raised by this opinion. First, it forces consideration of the oddity of the whole acceptance of responsibility scheme at all. A sentence is supposed to be consistent with the goals of sentencing set forth in § 3553(a)(2), and none of those goals seem to have anything at all to do with whether the government – or the court, for that matter – was inconvenienced by the need to prepare for, or even conduct, a trial.
A second important point is this: since the inception of the guidelines, the circuit has held to the fiction that institutionalizing lower sentences for defendants who plead guilty does not “punish” going to trial, which would be unconstitutional, it “rewards” pleading guilty, which is not. What’s the difference? None, of course, or at least none that can be articulated. And this decision clearly implodes that whole line of reasoning, since it expressly holds that denying a defendant the third point for contesting a material sentencing fact – or at least doing so in “good faith” – “punishes” him for doing so. This decision should accordingly open the door to a similar argument that a defendant who goes to trial with a “good faith” claim that he should be acquitted is entitled to all three acceptance of responsibility points.
Finally, a close look at the rationale of the amended third point language reveals yet another oddity. The stated purpose of the amendment is to help conserve the resources of both the government and the court. While it is true that the government knows best whether it has expended resources, it is not in a better position than the court itself to know whether the court was inconvenienced by an untimely plea. Accordingly, the guideline should permit the court to impose the third point on its own if it concludes that no significant judicial resources were consumed by an untimely plea of guilty.
Another point is that notwithstanding the prosecutor’s actions, a savvy judge can always get around the issue by imposing a non-guideline sentence.
Thanks to Steve Stasinger of the Federal Defenders Office, N.Y. who wrote this article.
David@davidzapp.com