Today the Second Circuit vacated a sentence as procedurally unreasonable because the sentencing judge withheld the third point of a Guideline reduction for acceptance of responsibility. The summary order in United States v. Reyes, No. 16-2936 (Winter, Lynch, Droney) (appeal from Townes, J., EDNY), is available here.
Mr. Reyes was sentenced to life imprisonment after pleading guilty to conspiracy to commit bank fraud and second-degree obstruction of justice murder. The government consistently stated that he deserved a full three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The district court granted a two-level reduction under § 3E1.1(a), but denied an additional one-level reduction under § 3E1.1(b) on the ground that Mr. Reyes lied during his sentencing testimony about whether he was present when the murder was committed. (The defendant maintained at sentencing that he hired someone to kill a witness to a bank fraud scheme, but told a confidential source in a recorded telephone conversation that he committed the murder himself.)
The panel concluded that the district court lacked authority to deny the reduction under § 3E1.1(b). Subsection § 3E1.1 (b) provides for a one-level reduction if a defendant qualifies for a two-level acceptance of responsibility reduction under subsection (a) and (1) otherwise has an offense level of 16 or greater and (2) the government moves for the reduction and states that the defendant “assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty.” U.S.S.G. § 3E1.1(b). The Second Circuit has previously held that “[a]pplication of subsection (b) is not discretionary” and that it is therefore legal error for a district court to deny the reduction upon a government motion. United States v. Rood, 281 F.3d 353, 356 (2d Cir. 2002). Accordingly, the district court erred in this case. The panel vacated Mr. Reyes’s sentence and remanded to allow the district court to make additional findings under § 3E1.1(b) — including a finding as to whether the government formally moved for a reduction — to determine whether Mr. Reyes qualifies for a reduction under that subsection.
One might expect the government to jealously guard its authority to provide defendants as it sees fit with a §3E1.1(b) reduction. In Rood, for example, the government conceded both that the district court erred in denying a §3E1.1(b) reduction and that remand for resentencing was required. See id. The government made no such concessions in this case, however, and argued in its reply brief that the district court acted within its discretion in denying the reduction. See Reyes, No. 16-2936, Gov’t Brief at 23-29. Practitioners should thus be mindful of the non-discretionary nature of §3E1.1(b) and take care to contest its denial without relying on the government to assert its prerogative to have the reduction granted.