Laura Waters TABLE OF CONTENTS

Transcription

1 A POWER AND A DUTY: PROSECUTORIAL DISCRETION AND OBLIGATION IN UNITED STATES SENTENCING GUIDELINE 3E1.1(B) Laura Waters TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. The Guidelines Role in Modern Federal Sentencing Procedure B. A Closer Look at 3E1.1: Acceptance of Responsibility and Timely Notification of Intent to Plead Guilty C. The Dispute: Prosecutorial Discretion vs. Obligation Under 3E1.1(b) A Majority of Circuits Have Held That 3E1.1(b) Allows for Significant Prosecutorial Discretion A Minority of Circuits Have Held That 3E1.1(b) Grants Limited Discretion to and Imposes Certain Duties on Prosecutors II. SEARCHING FOR MEANING: TEXT, COMMENTARY, AND BEYOND A. Explicating the Text, Commentary, and Structure of 3E B. Legislative History: The Feeney Amendment and Its Lack of Congressional Intent C. The Rule of Lenity: Push Goes to the Defendant D. Context Matters: Policy and Efficiency Concerns Affecting 3E1.1(b) Broader Judicial Review Places a Necessary Check on Prosecutors Already Significant Power in the Sentencing Process and Fosters Uniformity Senior Notes Editor, Cardozo Law Review; J.D. Candidate (May 2013), Benjamin N. Cardozo School of Law; B.S., Northwestern University, I would like to thank Professor Richard Bierschbach for sharing his insight and expertise throughout this endeavor; Nick Landsman-Roos, Elizabeth Langston, Alex Coven, and the Cardozo Law Review staff for their thoughtful edits and guidance; Emily Eng for pointing me in the right direction; and my parents, Natalie, and Ross for their unending support. 813

2 814 CARDOZO LAW REVIEW [Vol. 34: The U.S.S.C. Wants to Incentivize Plea Bargains, Not Discourage Them III. REMAINING CRITICISMS AND COUNTERARGUMENTS A. Booker Allows Judges to Deviate from the Guidelines, Acting as an Escape Hatch B. The Feeney Amendment s Legislative History Can Be Interpreted to Demonstrate Congress Intent to Give Prosecutors More, Not Less, Discretion CONCLUSION INTRODUCTION It is widely understood that prosecutors wield significant power in the criminal justice system. 1 And this extends beyond the areas most traditionally associated with prosecutorial discretion, such as deciding which cases to prosecute or what terms to include in plea offers. 2 In a May 2012 sentencing memorandum, Judge William G. Young, a federal district court judge in Massachusetts, lamented the increase in prosecutorial power at the sentencing stage, in large part because such an increase detracts from the judge s ability to adjust sentences as he sees fit. 3 As Judge Young wrote, [p]rosecutors run our federal criminal justice system today. Judges play a subordinate role necessary yes, but subordinate nonetheless. Defense counsel take what they can get. 4 It is against this backdrop of constantly increasing prosecutorial discretion that one must interpret the Federal Sentencing Guidelines (Guidelines), which continue to direct judges sentencing decisions at the federal level. 5 Certain Guidelines, such as U.S. Sentencing Guideline (U.S.S.G) 3E1.1 (3E1.1), 6 allow prosecutors an opportunity to impact a defendant s sentence level calculation by weighing in on whether a defendant s behavior warrants particular increases or decreases in 1 Robert H. Jackson, The Federal Prosecutor, 31 J. CRIM. L. & CRIMINOLOGY 3, 3 (1940); Mark Osler, This Changes Everything: A Call for a Directive, Goal-Oriented Principle to Guide the Exercise of Discretion by Federal Prosecutors, 39 VAL. U. L. REV. 625, 626 (2005). 2 See Osler, supra note 1 at United States v. Gurley, 860 F. Supp. 2d 95, 117 (D. Mass. 2012). 4 Id U.S.C. 3553(a)(4)(A)(i) (2006) ( The court, in determining the particular sentence to be imposed shall consider... the kinds of sentence and the sentencing range established for... the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines... issued by the [United States] Sentencing Commission.... ). 6 U.S. SENTENCING GUIDELINES MANUAL 3E1.1 (2011) [hereinafter U.S.S.G.]. For a more in-depth discussion of how sentences are calculated and adjusted, see Sharon Richardson, To Believe or Not to Believe... Is That the Question? Refusing to Apply Section 3E1.1 of the Federal Sentencing Guidelines to the Seemingly Unrepentant Defendant, 73 U. CIN. L. REV. 1191, (2005).

3 2012] A POWER AND A DUTY 815 sentence level. 7 The question, however, is how much discretion these provisions allow. This Note will focus specifically on 3E1.1, which allows for a reduction of the initial offense level based on the defendant s acceptance of responsibility for his crime. 8 It contains two subsections, 3E1.1(a) and 3E1.1(b). 9 The former bases eligibility for a reduction on the degree to which one has demonstrated an acceptance of responsibility. 10 The latter addresses how a defendant s timely guilty plea may qualify him for an additional reduction, listing several relevant criteria on which to base his eligibility for such a reduction. 11 The federal circuit courts disagree regarding the level of discretion 3E1.1(b) allows the government: whether the prosecutor is required to move for a reduction whenever the defendant meets the prescribed criteria or can instead withhold such a motion to encourage defendants to cooperate in other ways. 12 This Note argues that 3E1.1(b) requires the government to move for the reduction any time a defendant has met the enumerated eligibility requirements. While the prosecutor retains some discretion, it is limited to determining whether the defendant has met these criteria. 13 If the defendant has not met these criteria, then the decision not to move is warranted. But if he has, clearly and unequivocally, and the prosecutor still refuses to move, a judge may make the final decision as to whether the additional reduction was warranted. 7 See sources cited supra note 6. For example, the text of 3E1.1 reads as follows: (a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels. (b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating 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, decrease the offense level by 1 additional level. U.S.S.G., supra note 6, 3E1.1 (emphasis added). 8 U.S.S.G., supra note 6, 3E Id. 10 Id. 11 Id. 12 For example, a prosecutor might withhold a motion under 3E1.1 because a defendant challenged a fact in his presentence report (PSR) the document used to calculate his sentence thus requiring the prosecutor to prepare for a hearing on that issue, even though his timely notice of his intent to plead guilty still allowed the prosecutor to avoid preparing for trial. 13 Understanding prosecutorial discretion under 3E1.1(b) to allow prosecutors to decide whether a defendant s timely guilty plea enabled the government to avoid preparing for trial not only fits within a reasonable interpretation of the text as indicated by the phrase upon motion of the government but also makes sense. The government is undoubtedly best suited to judge whether the defendant s actions allowed it to avoid preparing for trial, so discretion in that determination is appropriate and fair.

4 816 CARDOZO LAW REVIEW [Vol. 34:813 Part I of this Note lays out the specifics of this disagreement in detail. Part II explains the proper interpretation of 3E1.1(b) that prosecutors must move for the reduction where the defendant meets the requisite criteria listed in 3E1.1(b) based on the Guidelines text, structure, and legislative history, as well as policy concerns. Finally, Part III addresses remaining counterarguments and criticisms of this interpretation of 3E1.1(b). I. BACKGROUND A. The Guidelines Role in Modern Federal Sentencing Procedure To fully grasp the import of ensuring an accurate interpretation 3E1.1, one must first understand the role the Guidelines play in the modern federal sentencing process. In 1984, Congress established the Guidelines to encourage uniformity within sentencing, so that offenders who had been convicted of similar crimes would receive similar sentences. 14 Pursuant to federal law, the United States Sentencing Commission (U.S.S.C.), an independent agency in the judicial branch of the federal government, was created to write and publish the Guidelines, 15 though ultimately, judges are the final arbiters of what sentence a defendant will receive. 16 Congress originally provided that all sentences had to fall within the corresponding Guidelines range, removing virtually all judicial discretion from the sentencing process. 17 However, in 2005 the Supreme Court decided United States v. Booker, 18 holding that compliance with the Guidelines could not be mandatory, as that would violate 14 See 28 U.S.C. 994 (2006); An Overview of the United States Sentencing Commission, U.S. SENTENCING COMM N, 1, available at of_the_ussc/ussc_overview.pdf (last visited Oct. 21, 2012). Systemic uniformity, however, is not the only aim of the Guidelines. As explained by the U.S.S.C., the Guidelines should [1] incorporate the purposes of sentencing (i.e., just punishment, deterrence, incapacitation, and rehabilitation); [2] provide certainty and fairness in meeting the purposes of sentencing by avoiding unwarranted disparity among offenders with similar characteristics convicted of similar criminal conduct, while permitting sufficient judicial flexibility to take into account relevant aggravating and mitigating factors; [and (3)] reflect, to the extent practicable, advancement in the knowledge of human behavior as it relates to the criminal justice process. Id. 15 An Overview of the United States Sentencing Commission, supra note 14, at 1. In addition to setting the Guidelines, the U.S.S.C. also advises all three branches of government on efficient and effective sentencing practices and crime policy. Id. The Guidelines, as well as the policy statements, must be determined in accordance with 18 U.S.C. 994, which sets out the procedures for the U.S.S.C. s operations. 28 U.S.C. 994 (2006) U.S.C (2006) U.S.C. 3553(b)(1) (2006) ( Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) [the applicable sentencing guidelines for that level offense]. ) U.S. 220 (2005).

5 2012] A POWER AND A DUTY 817 defendants Sixth Amendment right to a trial by jury. 19 As a remedy, the Court excised 18 U.S.C. 3553(b)(1) the provision that had made the Guidelines compulsory rendering the Guidelines advisory. 20 But even after Booker the Guidelines have continued to serve a significant role in the federal sentencing process. 21 Courts must still take care to appropriately consider and apply the Guidelines throughout the sentencing process to fully comply with As a result, courts still calculate the appropriate sentencing level before coming to a final sentencing decision. 23 What is more, many federal judges operated under a system where the Guidelines were mandatory for much of their careers, and as such, still model their sentences on the range dictated by the Guidelines, despite Booker s impact. 24 B. A Closer Look at 3E1.1: Acceptance of Responsibility and Timely Notification of Intent to Plead Guilty Functionally, the Guidelines are structured so that specific crimes 19 Id. at Because at times the mandatory nature of the Guidelines would compel a judge to raise a defendant s sentence based on factors decided by the judge at a sentencing hearing, rather than determined by the jury at trial, the Supreme Court held that the mandatory nature of the Guidelines implicated and violated the Sixth Amendment. Id. In Booker, there were two defendants tried for unrelated crimes who found themselves in similar situations. Both cases had gone to trial, and the juries had convicted both defendants of crimes that necessitated certain sentences. But after the juries announced their verdicts, the Guidelines required the district court judges to make additional findings outside of those issues addressed at trial. Pursuant to the Guidelines, these findings then required the courts to add additional years onto the defendants sentences. Both defendants appealed, stating that their Sixth Amendment right to a jury trial had been violated with regard to those judge-determined findings of fact. Id. at The Supreme Court held in the defendants favor, reaffirming its decision in United States v. Apprendi, which stated that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, and applied this principle to the Guidelines. Id. at (quoting United States v. Apprendi, 530 U.S. 466, 490 (2000)). 20 Booker, 543 U.S. at 245 (striking down 18 U.S.C. 3553(b)(1), which had read that [e]xcept as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) [the applicable sentencing guidelines for that level offense] ). 21 See, e.g., Lynn Adelman & Jon Deitrich, Fulfilling Booker s Promise, 11 ROGER WILLIAMS U. L. REV. 521, 524 (2006). 22 See 18 U.S.C See Adelman & Deitrich, supra note 21, at 524 ( The first two steps in sentencing after Booker are the same as they were before Booker: courts must make a calculation under the applicable guidelines, resolving any factual disputes necessary to that determination, and consider any requests for departures from the result pursuant to the Sentencing Commission s policy statements. ). 24 See Norman C. Bay, Prosecutorial Discretion in the Post-Booker World, 37 MCGEORGE L. REV. 549, (2006); Mary Patrice Brown & Stevan E. Bunnell, Negotiating Justice: Prosecutorial Perspectives on Federal Plea Bargaining in the District of Columbia, 43 AM. CRIM. L. REV. 1063, 1088 (2006).

6 818 CARDOZO LAW REVIEW [Vol. 34:813 correspond to a numerical level. 25 Those levels are adjusted up and down based on the presence of certain aggravating factors (such as possessing larger amounts of drugs, or using a firearm in committing a crime) and mitigating factors (such as acceptance of responsibility). 26 In addition to calculating the offense level, the judge will calculate the defendant s criminal history points, based on past conduct. 27 This number places the defendant into one of six criminal history categories. 28 The offense level is then matched up with the criminal history category to determine the recommended term of months of incarceration. 29 As a result, even a one-point downward departure can mean a difference of as many as forty months in prison. 30 Section 3E1.1 allows for a reduction of up to three points off the total offense level where a defendant accepts responsibility for his crimes. 31 Under 3E1.1(a), a defendant is entitled to a two-level decrease when he clearly demonstrates acceptance of responsibility for his offense. 32 Examples of this acceptance of responsibility include, among others, admitting one s culpability and turning oneself into the police after committing the crime. 33 Once past the threshold for a reduction under 3E1.1(a), subsection (b) provides that where the defendant has demonstrated sufficient acceptance of responsibility for his crime and his pre-reduction sentencing level is sixteen or above, 34 he may receive an additional onepoint downward departure if the government moves for such a reduction. 35 The government may move for that reduction where the 25 See, e.g., U.S.S.G., supra note 6, 2B3.1(a) (listing the base offense level for robbery). 26 For example, robbery has a base offense level of 20. Id. 2B3.1(a). But if the person discharged a firearm while committing that robbery, his sentencing level is increased by 7 levels. Id. 2B3.1(b)(2)(A). Most mitigating factors come from other provisions within the Guidelines, such as 3E1.1, which are considered once the offense level has been calculated based on the convicted offense and any other relevant attendant circumstances. Id. 1B1.1(a)(2) (5), 3E U.S.S.G., supra note 6, 1B1.1(a)(6). 28 Id. See also id. ch. 5, pt. A. 29 Id. 1B1.1(a)(7). 30 If a person s offense level is a 36, his sentence level as a Level VI offender is months. Id. ch. 5, pt. A. But a one-point downward departure would put the same offender into a range of months, resulting in a forty month difference at the high end of the guidelines range. Id. 31 Id. 3E Id. 3E1.1(a). 33 Id. 3E1.1(a) cmt. n An offense level of 16 corresponds with between twenty-one and fifty-seven months in prison, depending on the defendant s criminal history level. Id. ch. 5, pt. A. 35 As outlined in 3E1.1(b), [i]f the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating 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, decrease the offense level by 1 additional level. Id. 3E1.1(b).

7 2012] A POWER AND A DUTY 819 defendant has timely notified the prosecutor of his intent to plead guilty, and as a result has permitted the prosecution to avoid preparing for trial, such that the government and the court may re-allocate the resources they would have spent on that trial. 36 C. The Dispute: Prosecutorial Discretion vs. Obligation Under 3E1.1(b) A split has developed among the federal circuit courts concerning the extent of prosecutorial discretion allowed under 3E1.1(b), as arises when a defendant challenges a prosecutor s failure to move for the third-level reduction. 37 The central question is whether subsection (b) confers onto the defendant an entitlement to the reduction or merely provides the prosecutor with a means of rewarding a cooperative defendant, should he so choose. All circuits agree that the phrase upon motion of the government in subsection (b) indicates that a government motion is a pre-requisite for the judge to include the additional one-level reduction in its Guidelines calculation. 38 That phrase was added as part of a congressional amendment in 2003, which is known as the Feeney Amendment in recognition of the Congressman who proposed it. 39 Prior to that amendment, the provision called for a mandatory one-level reduction whenever a defendant met the requirements of subsection (b). 40 Accordingly, all courts have reasoned that the change demonstrates the legislature s intent to restrict the courts ability to award the third-level reduction without a motion by the prosecutor Id. 37 A majority of circuits have held that 3E1.1(b) gives prosecutors nearly unfettered discretion in moving or not moving for an additional one-point reduction. See United States v. DeBerry, 576 F.3d 708, (7th Cir. 2009); United States v. Beatty, 538 F.3d 8, (1st Cir. 2008); United States v. Drennon, 516 F.3d 160, (3d Cir. 2008); United States v. Newson, 515 F.3d 374, (5th Cir. 2008); United States v. Gunn, 215 F. App x 785, (11th Cir. 2007) (per curiam); United States v. Espinoza-Cano, 456 F.3d 1126, (9th Cir. 2006); United States v. Moreno-Trevino, 432 F.3d 1181, (10th Cir. 2005); United States v. Wattree, 431 F.3d 618, (8th Cir. 2005); United States v. Smith, 429 F.3d 620, (6th Cir. 2005). A minority of circuits have held that 3E1.1 allows for less prosecutorial discretion. See United States v. Lee, 653 F.3d 170, (2d Cir. 2011); United States v. Divens, 650 F.3d 343, (4th Cir. 2011). 38 See Lee, 653 F.3d at 173; Divens, 650 F.3d at ; DeBerry, 576 F.3d at 710; Beatty, 538 F.3d at 14; Drennon, 516 F.3d at ; Newson, 515 F.3d at 378; Gunn, 215 F. App x at ; United States v. Sloley, 464 F.3d 355, 360 (2d Cir. 2006); Espinoza-Cano, 456 F.3d at 1136; Moreno-Trevino, 432 F.3d at 1186; Wattree, 431 F.3d at 624; Smith, 429 F.3d at See Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No , 401(g), 117 Stat. 650, 667; David M. Zlotnick, The War Within the War on Crime: The Congressional Assault on Judicial Sentencing Discretion, 57 SMU L. REV. 211, 229 (2004). 40 PROTECT Act 401(g). 41 See supra note 38.

8 820 CARDOZO LAW REVIEW [Vol. 34:813 As many of the circuits have pointed out, 42 the commentary to 3E1.1 states that, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing. 43 However, all courts also agree that despite this motion requirement, judges retain the authority to review the government s decision not to make such a motion. 44 What remains in dispute is on what grounds judges may intervene and grant the third-level reduction in the absence of a government motion in other words, the extent of prosecutorial discretion under 3E A Majority of Circuits Have Held That 3E1.1(b) Allows for Significant Prosecutorial Discretion A majority of circuits have determined that where the prosecutor withholds a motion under 3E1.1(b) and a defendant challenges that decision, the court may only override the government s decision not to file the motion in two circumstances: first, where the prosecutor s decision was based on an unconstitutional premise, such as the defendant s race or religion; and second, where withholding the motion was not rationally related to [some] legitimate Government end. 45 The courts borrowed this standard from the Supreme Court s holding in United States v. Wade, 46 an earlier case concerning the proper interpretation of another Guideline: U.S.S.G. 5K1.1 (5K1.1). 47 As with 3E1.1, 5K1.1 allows the government to move for a sentence-level reduction in certain circumstances. But 5K1.1 focuses not on the defendant s actions regarding his own proceedings, but on a defendant s substantial assistance in the prosecution of another person accused of a crime. 48 As such, it is known as the substantial assistance provision. 49 Section 5K1.1 lists five factors the prosecutor may consider in determining whether the defendant s actions warrant a reduction, 42 See supra note U.S.S.G., supra note 6, 3E1.1(b) cmt. n.6 (emphasis added). 44 See, e.g., United States v. Sloley, 464 F.3d 355, 360 (2d Cir. 2006) ( [W]e believe a prosecutor s discretion under 3E1.1(b), although broad in scope, has some limitation. ); United States v. Lee, 653 F.3d 170, 173 (2d Cir. 2011); United States v. Divens, 650 F.3d 343, 345 (4th Cir. 2011); United States v. Beatty, 538 F.3d 8, 15 (1st Cir. 2008). 45 See, e.g., Beatty, 538 F.3d at 14 (quoting Wade v. United States, 504 U.S. 181, (1992) (internal quotation marks omitted)) U.S. 181 (1992). 47 Id. at U.S.S.G., supra note 6, 5K1.1. As 5K1.1 reads: [u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. Id. 49 Beatty, 538 F.3d at 14.

9 2012] A POWER AND A DUTY 821 though the list is not exhaustive. 50 Based on the text and commentary of 5K1.1, the Wade Court held that 5K1.1 gives the Government a power, not a duty, to file a motion for a reduction in sentencing level. 51 But while recognizing the discretionary nature of a motion by the prosecutor under 5K1.1, the Court also emphasized certain limitations. 52 Specifically, a judge may intervene if the prosecutor s withholding of the motion arose from a motive that was either unconstitutional or not rationally related to a legitimate governmental end. 53 A majority of circuits have held that 5K1.1 and 3E1.1 are analogous because both require a motion by the government before the judge may award the reduction in his Guidelines calculation. 54 These courts have interpreted the language in 3E1.1 requiring a motion of the government to indicate that under 3E1.1, just as in 5K1.1, the government has a power not a duty to move for a reduction. 55 Therefore, because both provisions only bestow authority, rather than impose an obligation, 3E1.1 and 5K1.1 must confer on the government the same amount of discretion. 56 This rationale relies heavily on the Feeney Amendment, 57 which added the requirement of a government motion. 58 As the Seventh Circuit explained in United States v. DeBerry, 59 prior to 2003 a 50 See U.S.S.G., supra note 6, 5K1.1(a). The text of subsection (a) of the provision reads as follows: The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: (1) the court s evaluation of the significance and usefulness of the defendant s assistance, taking into consideration the government s evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; (5) the timeliness of the defendant s assistance. Id. 51 Wade, 504 U.S. at Id. at Id. 54 See, e.g., Beatty, 538 F.3d at United States v. DeBerry, 576 F.3d 708, (7th Cir. 2009); Beatty, 538 F.3d at 13 16; United States v. Drennon, 516 F.3d 160, (3d Cir. 2008); United States v. Newson, 515 F.3d 374, (5th Cir. 2008); United States v. Gunn, 215 F. App x 785, (11th Cir. 2007) (per curiam); United States v. Espinoza-Cano, 456 F.3d 1126, (9th Cir. 2006); United States v. Moreno-Trevino, 432 F.3d 1181, (10th Cir. 2005); United States v. Wattree, 431 F.3d 618, (8th Cir. 2005); United States v. Smith, 429 F.3d 620, (6th Cir. 2005). 56 See supra note Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No , 401(g), 117 Stat. 650, See, e.g., DeBerry, 576 F.3d at 710; Beatty, 538 F.3d at 13 14; Drennon, 516 F.3d at ; Gunn, 215 F. App x at 791; Espinoza-Cano, 456 F.3d at 1134; Moreno-Trevino, 432 F.3d at ; Wattree, 431 F.3d at ; Smith, 429 F.3d at F.3d 708 (7th Cir. 2009).

10 822 CARDOZO LAW REVIEW [Vol. 34:813 defendant could have claimed that he was entitled to a reduction under subsection (b) whenever he fulfilled the listed requirements. 60 But, this rationale continues, the amendment expanded prosecutorial discretion considerably so that only an unconstitutional motive or one not rationally related to a legitimate government end could constitute an abuse of discretion warranting relief. 61 Likewise, in United States v. Beatty, the First Circuit held that the 2003 amendment s motion requirement created a parallel between 3E1.1 and 5K1.1, such that the same standard of judicial review should apply to both. 62 Using the Wade standard in the 3E1.1(b) context significantly truncates the situations in which a defendant can challenge a prosecutor s refusal to move for the third-level reduction, since to overcome the defendant s challenge, government need only prove that its decision was rationally related to a legitimate governmental end. 63 The ease of meeting this standard can be illustrated by examining the variety of situations in which courts have upheld a prosecutor s choice not to move for the third-level reduction. In several cases, courts approved the Government s refusal to move because a defendant would not waive all of his appellate rights to challenge his conviction and sentence. 64 Because appeals can be costly for the government, the Fifth Circuit held in United States v. Newson that wanting to save those resources was a legitimate government end. 65 And in Beatty, the First Circuit held that a defendant s challenge to Government findings in his pre-sentencing report (PSR) 66 was a legitimate basis for the prosecutor s decision not to move for a reduction because combating that challenge would cost time and money See, e.g., DeBerry, 576 F.3d at 710 ( Until subsection (b) was amended in 2003 to specify that the relief granted must be in response to a motion by the government, the defendant was entitled, just as subsection (a) entitles defendants, to relief if the criteria were met. The amendment turned subsection (b) into a license for prosecutorial discretion. A duty was converted to a power. ). 61 Id. at Beatty, 538 F.3d at According to the Beatty court, the Guideline as amended gives the government discretion-akin to its discretion under the substantial assistance provision of the [G]uidelines... to determine whether to file such a motion. Id. at 14 (citing Wade v. United States, 504 U.S. 181, (1992) (describing prosecutorial discretion under U.S.S.G., supra note 6, 5K1.1)). 63 DeBerry, 576 F.3d at 711; Beatty, 538 F.3d at 15; Drennon, 516 F.3d at ; Gunn, 215 F. App x at ; United States v. Newson, 515 F.3d 374, 378 (5th Cir. 2008); Espinoza- Cano, 456 F.3d at ; Moreno-Trevino, 432 F.3d at 1186; Wattree, 431 F.3d at ; Smith, 429 F.3d at See, e.g., DeBerry, 576 F.3d at 711; Newson, 515 F.3d at Newson, 515 F.3d at A pre-sentencing report is a document drawn up by the Government prior to sentencing, which assists in the calculation of a defendant s sentencing level. United States v. Lee, 653 F.3d 170, (2d Cir. 2011). 67 Beatty, 538 F.3d at 10 12, However, in its opinion, the court never explained exactly why this was a legitimate government end. Id. at Instead, it merely explained why a legitimate government end in this case did not require the Government to be conserving trial resources. Id. at 15.

11 2012] A POWER AND A DUTY 823 Perhaps the most dramatic example can be found in United States v. Moreno-Trevino. 68 There, the Tenth Circuit approved a prosecutor s decision not to move for the third-level reduction based solely on a notation in the PSR of an illegal immigrant that indicated the defendant who was being deported as part of his plea agreement had made statements indicating that he intended to (illegally) re-enter the United States to visit his children. 69 The court held that this was a legitimate government end because prosecutors have an interest in showing that they will only file for reductions under 3E1.1(b) where defendants fully co-operate and intend to abide by their plea agreements. 70 Thus, by some courts accounts, virtually any time a prosecutor argues that not moving for a third-level reduction under 3E1.1(b) was intended to incentivize certain behavior preferable to the government, that could be considered a legitimate government end A Minority of Circuits Have Held That 3E1.1(b) Grants Limited Discretion to and Imposes Certain Duties on Prosecutors A minority of circuits have determined that prosecutors do not have such substantial leeway. The Second and Fourth Circuits both handed down rulings in July of 2011 holding that where a defendant meets the objective criteria for the third-level reduction listed in the text of the Guideline, he is entitled to the third-level reduction. 72 In other words, where the defendant s timely notification of his intention to plead guilty has enabled the government to conserve and reallocate resources that it otherwise would have spent preparing for trial, the prosecutor must move for the third-level reduction. 73 While these opinions do not mirror each other precisely, their reasoning overlaps in many ways, with the Second Circuit in United States v. Lee 74 even citing the Fourth Circuit s opinion in United States v. Divens 75 for support in its decision F.3d Id. at , Id. at Id. at United States v. Lee, 653 F.3d 170, (2d Cir. 2011); United States v. Divens, 650 F.3d 343, (4th Cir. 2011). 73 See Lee, 653 F.3d at ; Divens, 650 F.3d at F.3d F.3d Lee, 653 F.3d at ( A recent decision of the Fourth Circuit is instructive. In United States v. Divens... [r]elying on the plain language of 3E1.1(b) and its commentary, the Fourth Circuit held that the government could not refuse to make the motion on this basis. The court held that 3E1.1(b) instructs the Government to determine simply whether the defendant has timely entered a plea of guilty and thus furthered the guideline s purpose in that manner. It does not permit the Government to withhold a motion for a one-level reduction because the defendant has declined to perform some other act to assist the Government. These

12 824 CARDOZO LAW REVIEW [Vol. 34:813 a. United States v. Divens: Breaking the Mold In Divens, the defendant, Lashawn Dwayne Divens, pleaded guilty to a narcotics offense. 77 He signed an acceptance of responsibility statement but declined to waive certain appellate rights. 78 The Fourth Circuit determined that the prosecution s refusal to move for the thirdlevel reduction under 3E1.1 was motivated solely by Divens declining to waive these rights. 79 The Divens court then held that a prosecutor s refusal to move for the third-level reduction may not turn on a reason not clearly stated in 3E Because a refusal to waive appellate rights does not affect whether the government has to prepare for trial which is all 3E1.1(b) addresses the court held that the prosecution had abused its discretion in refusing to move for the reduction on those grounds. 81 The court provided several explanations for its position. First, the text of 3E1.1 discusses only whether the defendant s timely notification of his intent to plead guilty allowed the government to save and reallocate resources it would have otherwise spent preparing for trial, rather than for appeals or other hearings. 82 Second, the provision s commentary indicated that the U.S.S.C. was concerned only with the conservation of trial resources. 83 Finally, the Divens court challenged the proposition proffered by the majority of circuits that 5K1.1 was properly analogous to 3E Turning first to the textual arguments, the Divens court focused on the phrase by timely notifying authorities of his intention to enter a guilty plea, 85 explaining that this sentence indicates that there is one specific form of assistance a defendant could provide that would warrant a third-level reduction: timely notification to the government of his intention to plead guilty. 86 The Guidelines do not require a observations apply with equal force here. (citations omitted)). 77 Divens, 650 F.3d at Id. 79 Id. The Government had argued at the sentencing hearing that its refusal to move for the reduction was motivated by its desire to avoid defending a complete appeal, which was a legitimate government purpose within the meaning of 3E1.1. Id. Divens objected, but the district court found that the decision whether to move for the third-level reduction was completely in the discretion of the Government. Id. 80 Id. at Id. at Id. at 348. As the court explained, [s]ection 3E1.1(b)... instructs the Government to determine simply whether the defendant has timely entered a plea of guilty and thus furthered the guideline s purposes in that manner. It does not permit the Government to withhold a motion for a one-level reduction because the defendant has declined to perform some other act to assist the Government. Id. 83 Id. 84 Id. at Id. at 345 (discussing U.S.S.G., supra note 6, 3E1.1(b)). 86 Id.

13 2012] A POWER AND A DUTY 825 defendant to do anything more than provide such timely notification in order to qualify for the reduction. 87 The Fourth Circuit found further support in the next phrase of the provision, which reads, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently. 88 The use of the word thereby, the court wrote, means by that means, and refers back to the phrase about timely notifying authorities of his intention to enter a guilty plea. 89 Thus, the Fourth Circuit reasoned, the U.S.S.C. s concern in this provision was whether the defendant enabled the prosecutor to avoid preparing for trial and thus to re-allocate those resources. 90 Additionally, the use of the word court which the Fourth Circuit construed as referring to the district court rather than courts which would include the district and appellate courts indicated that an interest in conserving appellate resources was beyond the scope of the statute. 91 Next addressing 3E1.1(b) s commentary, the Fourth Circuit explained that several notes indicated that the U.S.S.C. was concerned only with the conservation of trial, rather than appellate, resources. 92 Comment two refers to the U.S.S.C. s intent to relieve the Government of meeting its burden of proof at trial ; comment five refers only to the sentencing not appellate judge; and comment six discusses the importance of notifying the authorities of one s intent to plead guilty so that the court may schedule its calendar efficiently. 93 Thus, the court explained, all of the relevant commentary discusses only trial procedures, to the exclusion of appellate proceedings. 94 Finally, the Divens court explained that the 5K1.1 standard of review could not properly be applied to the interpretation of 3E Despite the parallel language predicating any reduction on a motion of the government, the court interpreted the text and the commentary of both provisions as evincing the U.S.S.C. s intent that the government 87 Id. 88 Id. (discussing U.S.S.G., supra note 6, 3E1.1(b)). 89 Id. at Id. 91 Id. at The court rejected the government s argument that a desire to conserve appellate resources is sufficiently related to the government interest in conserving trial resources to fall within the reach of the provision. Id. As the court wrote, compliance with the Guidelines requires courts to apply the language of the provisions as written, focusing on the specific factors articulated in the guideline itself, and not basing its determinations on some other criterion that it believes to be closely related to the textual requirement. Id. at 349 (citing Massachusetts v. EPA, 549 U.S. 497, (2007) (strictly limiting discretion to the statutory question and not to related policy judgments )). The Divens court thus clarified that 3E1.1 should be construed strictly to concern only trial preparation, rather than appellate preparation, or any other seemingly analogous expenditure of resources. 92 Id. at Id. at (citing U.S.S.G., supra note 6, 3E1.1 cmt. nn.2, 5, 6). 94 Id. 95 Id. at

14 826 CARDOZO LAW REVIEW [Vol. 34:813 enjoys more discretion under 5K1.1 than under 3E Of specific import was that the commentary to 3E1.1 but not to 5K1.1 states that [s]ubsection (b) provides an additional 1-level decrease in offense level for a defendant... who has assisted authorities in the investigation or prosecution of his own misconduct by taking the steps set forth in subsection (b). 97 This language, the Divens court explained, indicates that once the prosecution has determined that the defendant has met the specific requirements of subsection (b) i.e. allowing the government to avoid preparing for trial this third level reduction becomes an entitlement. 98 That 5K1.1 contains no corresponding commentary indicates that it includes no such entitlement. 99 b. United States v. Lee: Reinforcing the Divide In Lee, the Second Circuit relied on many similar arguments in reaching its holding that where a defendant has met all of the enumerated requirements of subsection (b), the defendant is entitled to the third-level reduction. 100 There the defendant, Chris Lee, pleaded guilty to all four counts of an indictment charging him with narcotics violations, but objected to several findings within the PSR. 101 In particular, he challenged a finding that he had threatened to kill specific drug couriers out of fear they would cooperate with the police. 102 A hearing known in New York as a Fatico hearing 103 was scheduled to determine the reliability of statements made by the government in the PSR. 104 At the sentencing hearing, the government refused to move for the additional one-point reduction under 3E1.1, arguing that having to prepare for the PSR was akin to preparing for trial Id. 97 Id. at 346 (quoting U.S.S.G., supra note 6, 3E1.1 cmt. n.6). 98 Id. The Divens court also addressed in a footnote that while this commentary language existed prior to the 2003 addition of the phrase upon motion of the government, the Commission did not adjust the commentary language after that amendment, despite their right to do so. Id. at 350 n.1. And because the commentary is controlling, this may not be simply discounted as an oversight. Id. 99 Id. at United States v. Lee, 653 F.3d 170 (2d Cir. 2011). 101 Id. at Id. 103 Fatico hearings originated from an evidentiary hearing performed in United States v. Fatico, 579 F.2d 707 (2d Cir. 1978). The Second Circuit has described the purpose of a Fatico hearing as a hearing which is used to determine whether under due process the sentencing judge can properly rely on statements made by the Government typically in the presentence report. United States v. Borello, 766 F.2d 46, 60 n.23 (2d Cir. 1985). 104 Lee, 653 F.3d at 172. The night before Lee s Fatico hearing, however, he withdrew all of his objections, except for his objection to the finding that he had threatened to kill the drug couriers, and the hearing was rescheduled and limited to that question. Id. At the hearing, the district court found against Lee, determining that he had indeed made the threats. Id. 105 Id. The district court denied Lee s request for the third point reduction because the

15 2012] A POWER AND A DUTY 827 On appeal, the Second Circuit held that this rationale for refusing to move for the third-level reduction was unlawful. 106 While the court agreed with the government that a government motion is technically required in order for the court to grant the third point, it stated that in two circumstances a sentencing court may grant the reduction without the government s motion (1) where the government s refusal to move is based on an unconstitutional motive, or (2) where a plea agreement leaves the decision to move to the government s discretion and the government acts in bad faith. 107 And yet, the Second Circuit held that the government could not refuse to move for the reduction simply because they had been forced to prepare for a Fatico hearing, despite the fact that this falls outside those two enumerated circumstances. 108 This indicates that there are situations in which the prosecution s refusal to move is not unconstitutional, but still violates 3E1.1(b). The Lee court s rationale in many ways paralleled the Fourth Circuit s explanation in Divens. 109 First, the plain language of 3E1.1(b) only explicitly mentions the prosecution s resources saved regarding the preparation for trial, not pre-trial hearings. 110 Second, the commentary for 3E1.1 indicates that the government motion is required not to give the government unlimited discretion, but to allow them to note whether the defendant s actions allowed them to avoid preparing for trial. 111 But unlike the Fourth Circuit, the Lee court avoided directly addressing whether adopting the standard of review used for 5K1.1 was required in 3E1.1 cases. 112 The Lee court did not mention 5K1.1 once in its opinion. 113 Yet, in a prior opinion, U.S. v. Sloley, 114 the Second Circuit stated that it would look to 5K1.1 for guidance in determining whether a motion by the prosecutor was required under 3E While the Lee government had not moved for the reduction, and Lee had not argued that the government s refusal to move had been without good faith. Id. at Id. at Id. (citing United States v. Sloley, 464 F.3d 355, 360, 361 (2d Cir. 2006)). 108 Id. at 174. The Lee court also explained that in the specific instance of a Fatico hearing, it would be especially problematic to allow the government to penalize those defendants who are pleading guilty but want to challenge a finding in the PSR. Id. As the court wrote, the purpose of a Fatico hearing is to determine the veracity of the government s claims against the defendant in his PSR, and thus, [i]f there is a good faith dispute as to the accuracy of factual assertions 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. Id. 109 United States v. Divens, 650 F.3d 343, (4th Cir. 2011). 110 Lee, 653 F.3d at 174. ( A Fatico hearing is not a trial, and Lee s post-plea objections to the PSR did not require the government to prepare for trial. (quoting U.S.S.G., supra note 6, 3E1.1(b))). 111 Id. at 174 (explaining that the prosecutor may determine whether the defendant has assisted authorities in a manner that avoids preparing for trial (emphasis added by the court) (quoting U.S.S.G., supra note 6, 3E1.1 cmt. n.6) (internal quotation marks omitted)). 112 Id. at Id. at F.3d 355 (2d Cir. 2006). 115 Id. at 360. The Sloley court also noted that prosecutorial discretion, is subject, for

16 828 CARDOZO LAW REVIEW [Vol. 34:813 court cited Sloley in discussing the standard for abuse of discretion, 116 it did not address Sloley s assertion that 5K1.1 could be useful in interpreting 3E1.1. It remains to be seen if the Lee court s silence on this issue will be read by the district courts as a rejection of Sloley s seeming endorsement of the analogy to 5K1.1. At the very least, however, Lee avoided reaffirming Sloley s reasoning on this point. II. SEARCHING FOR MEANING: TEXT, COMMENTARY, AND BEYOND As evidenced above, there are reasonable arguments for the varying interpretations of 3E1.1(b). However, this Part will explain why 3E1.1(b) must be interpreted to allow for less prosecutorial discretion, rather than more. Some of this reasoning aligns with the rationale set forth by the Second and Fourth Circuits, such as elements of the textual analysis of the provision. But much of the following analysis explores other components of statutory interpretation that are crucial for divining the true meaning of the provision, such as the legislative history of the Feeney Amendment, the influence of the rule of lenity, 117 and several policy concerns central to this debate. A. Explicating the Text, Commentary, and Structure of 3E1.1 In interpreting any ambiguous statute, one should turn first to the text of the provision in dispute. 118 In the context of the Guidelines, this also includes any commentary published alongside the provision. 119 The reading of 3E1.1(b) proposed by this Note is a clear and straightforward reading of not only the text of the provision, but also its commentary. The plain language of 3E1.1 evinces a singular focus on whether a defendant s notification of his intent to plead guilty allows the example, to the same limits to which a prosecutor s discretion under 5K1.1 is subject. That is, in all cases, a prosecutor cannot refuse to move on the basis of an unconstitutional motive, such as a defendant s race or religion. Id. Still, the Sloley court is not clear that 3E1.1 must be treated similarly as 5K1.1, but merely that the treatment of 5K1.1 could be used as guidance. Id. 116 Lee, 653 F.3d at The rule of lenity is a canon of construction used in statutory interpretation which espouses the principle that ambiguous penal statutes should be interpreted in favor of those against whom the government seeks to impose that penalty. NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION (5th ed. 1992). 118 See W. Va. Univ. Hosps. v. Casey, 499 U.S. 83 (1991) ( Where a statutory term presented to us for the first time is ambiguous, we construe it to contain that permissible meaning which fits most logically and comfortably into the body of both previously and subsequently enacted law. ). 119 See Stinson v. United States, 508 U.S. 36, 38 (1993) (holding that accompanying commentary that explains a Guideline is also controlling unless it is unconstitutional, violates a federal statute, or clearly contradicts that Guideline).

17 2012] A POWER AND A DUTY 829 government to avoid expending unnecessary costs preparing for trial. 120 While the U.S.S.C. or Congress could easily have changed the language of the entire provision to include appeals, pre-trial evidentiary hearings, or any other proceeding for which the prosecutor would have to prepare, it did not. 121 Further, the commentary only discusses the effect of defendants conduct on trial preparation, giving no indication that a downward departure under 3E1.1 should be contingent on a defendant s willingness to assist the government in other ways. 122 As the Second and Fourth Circuits correctly explained, this indicates that the U.S.S.C. intended for this reduction to be denied only where the defendant s behavior did not allow the government to avoid preparing for trial. 123 That all of this language and commentary was simply ignored by those circuits that would argue otherwise indicates that such an interpretation is difficult to rebut. 124 As noted in Part I.C.1, those circuits instead focus on the phrase upon motion of the government 125 as the key to properly interpreting this provision, asserting that its addition trumps all else in the statute and grants prosecutors almost blanket discretion to move or not move. 126 While the phrase indisputably indicates Congress and the U.S.S.C. s intent that the prosecution have a say in whether a defendant is rewarded for his cooperation, this Note submits that the inclusion of this phrase should be read less expansively than a majority of courts would interpret it. Rather than granting prosecutors nearly unfettered discretion, it merely indicates that the prosecution is the best party to decide whether the defendant s notification of his intent to plead guilty came early enough to prevent the prosecution from wasting time and money preparing for a trial that would not actually happen. 127 As such, 120 U.S.S.G., supra note 6, 3E1.1(b) (2011) ( upon motion of the government stating 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 (emphasis added)). 121 See United States v. Lee, 653 F.3d 170, 174 (2d Cir. 2011); United States v. Divens, 650 F.3d 343, 347 (4th Cir. 2011). 122 U.S.S.G., supra note 6, 3E1.1(b) cmt. n See Lee, 653 F.3d at 174; Divens, 650 F.3d at United States v. DeBerry, 576 F.3d 708, 710 (7th Cir. 2009); United States v. Beatty, 538 F.3d 8, (1st Cir. 2008); United States v. Drennon, 516 F.3d 160, (3d Cir. 2008); United States v. Newson, 515 F.3d 374, 378 (5th Cir. 2008); United States v. Gunn, 215 F. App x 785, (11th Cir. 2007) (per curiam); United States v. Sloley, 464 F.3d 355, (2d Cir. 2006); United States v. Espinoza-Cano, 456 F.3d 1126, (9th Cir. 2006); United States v. Moreno-Trevino, 432 F.3d 1181, (10th Cir. 2005); United States v. Wattree, 431 F.3d 618, (8th Cir. 2005); United States v. Smith, 429 F.3d 620, 628 (6th Cir. 2005). 125 U.S.S.G., supra note 6, 3E1.1(b). 126 See supra, note 124 for a sampling of how these courts have addressed this issue. 127 U.S.S.G., supra note 6, 3E1.1(b) cmt. 6 (explaining that a government motion is required [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 ); see also United States v. Divens, 650 F.3d 343, 346 (4th Cir. 2011); supra notes (explaining that the use of the