Saturday, August 13th, 2011

Point of Controversy

United States v. Lee, No. 10-493-cr (2d Cir. July 26, 2011) (Parker, Chin, CJJ, Korman, DJ)

For the many years, the third acceptance of responsibility point – although to be completely faithful to guideline lingo, it is a “level,” not a “point,” since “points” are for criminal history – was something of a given. As long as the defendant either confessed early on or pled guilty timely, the reduction was granted. Effective November 1, 2003, however, the Commission amended the language of this adjustment, guideline section 3E1.1(b), to require a government motion for the third point. The amended section indicates that such a motion 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.” This amendment was the result of a congressional directive in the PROTECT Act, and the Commission justified it on the theory that only the government knew whether its resources had truly been conserved.

There has been surprisingly little third-point litigation in the ensuing years. But this case resolves an important question about the adjustment over which there is a circuit split.

Defendant Lee pled guilty to a four-count drug indictment without much fanfare. He later objected to several facts contained in the PSR,and the district court scheduled a Fatico hearing. 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 refuse 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 circuit reversed. While a government motion is a “necessary prerequisite” to the third point, circuit precedent has indicated 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, since there was no plea agreement, only the first option was available, but the circuit found that it was met, although the court seemingly identified an alternative reason for granting the point: the government’s reason for not making the motion was based on an “unlawful” – although perhaps not unconstitutional – reason: the refusal was not permitted by the guideline itself, which addresses only avoiding preparing for “trial.” While Lee put the government to its burden at a Fatico hearing, 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 § 3E1.1 – which is binding – likewise limits the determination to whether the government has saved resources by avoiding preparing for trial.

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 PSR 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.”


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.

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