Monday, September 18th, 2006

Government’s Refusal to Move for Third Acceptance Point under § 3E1.1(b) Subject to Same Constraints as Its Refusal to File § 5K1.1 Motion

United States v. Sloley, Docket No. 05-1748-cr (2d Cir. Sep. 15, 2006) (Walker, Cardamone, Sotomayor): This is an odd opinion that fails to answer what appears to be the central question on appeal: Whether the Government may refuse to move for the 3rd acceptance point, under U.S.S.G. § 3E1.1(b), for reasons other than the timeliness of the defendant’s guilty plea and its effect on the Government’s need to prepare for trial. (Disclosure: Colleen Cassidy of this Office litigated the case on appeal). The opinion chooses to answer, instead, some peripheral questions not really subject to serious dispute: (1) a Government motion is generally required to get the 3rd point under § 3E1.1(b); and (2) the Government’s refusal to file such a motion may not be based on unconstitutional motives and, in the case of a plea agreement, may not be rooted in bad faith. Because the Government’s refusal to move for the 3rd point here was based on its good-faith belief that the defendant falsely claim that he did not perjure himself at the suppression hearing, the Court affirms the sentence.

The problem with the opinion is that it fails to address the plain language of § 3E1.1(b), providing that a defendant qualifies for the 3rd point if (1) the offense level is 16 or greater; (2) the defendant has been granted the 2-levels for acceptance under § 3E1.1(a); and (3) the Government states in a motion 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 guilty plea, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently . . . .” U.S.S.G. § 3E1.1(b) (emphasis added); see id. comment. (n.6) (noting that Government motion is required under subsection (b) “[b]ecause the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial . . . .”). Here, the Government initially agreed to moving for the 3rd point in the plea agreement, but then reneged on this promise when Sloley disputed the application of a 2-level obstruction enhancement (which he had earlier agreed to in the plea agreement) based on his suppression hearing testimony. As the Court finds, “the record shows that Sloley’s reneging on his admission to perjury . . . is what led the government to conclude that he had not accepted responsibility to the prosecutor’s satisfaction.” Op.12.

The real question, then, is whether this particular reason — which has nothing to do with the timeliness of Sloley’s guilty plea and the avoidance of trial preparation for the Government — justifies the Government’s refusal to move for the 3rd point, in light of the Guideline’s plain language linking the motion to these particular concerns. Unfortunately, the Circuit fails to confront this difficult question, instead falling back upon generalities and platitudes — e.g., the obvious requirement that a Government motion is generally necessary to get the 3rd point — in affirming the sentence.

Nonetheless, the opinion does establish that the Government’s refusal to move for the 3rd point is subject to the same limits and constraints governing its refusal to file a 5K1.1 motion for substantial assistance. Op.9-12. That is, the Government may not refuse to move for the 3rd point because of unconstitutional reasons (e.g., the defendant’s race or religion) or based on bad faith.

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