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July 5, 2011

Fourth Circuit (splitting with other circuits) finds problem with appeal wavier demand for extra acceptance reduction

Hard-core sentencing fans (and perhaps only hard-core sentencing fans) should find very interesting and perhaps somewhat surprising a ruling today from the Fourth Circuit in US v. Divens, No. 09-4967 (4th Cir. July 5, 2011) (available here).  Here is the start of the opinion along with an excerpt from part of the opinion spotlighting why the Fourth Circuit is splitting from its sisters on this issue:

Lashawn Dwayne Divens pled guilty to possession with intent to distribute cocaine. Divens signed an acceptance of responsibility statement but declined to sign a plea agreement waiving certain rights to appellate review and collateral attack.  Solely because Divens would not waive these rights, the Government refused to move for an additional one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b).  Divens appeals, challenging the district court’s failure to compel the Government to move for the § 3E1.1(b) reduction.  For the reasons that follow, we vacate Divens’s sentence and remand for further proceedings consistent with this opinion.....

Section 3E1.1(a) of the Guidelines provides for a two-level decrease in a defendant’s offense level if he "clearly demonstrates acceptance of responsibility for his offense."... The district court awarded Divens the two-level reduction under § 3E1.1(a), but because the Government refused to file a motion under § 3E1.1(b), the court did not award Divens the additional one-level reduction provided by that subsection. The Government makes no claim that Divens does not qualify for a decrease.... [;] the Government’s sole contention is that Divens’s failure to sign the appellate waiver justifies the Government’s refusal to move for the additional one-level reduction under § 3E1.1(b)....

[In our view], under § 3E1.1(b) the Government retains discretion to refuse to move for an additional one-level reduction, but only on the basis of an interest recognized by the guideline itself — not, as with § 5K1.1, on the basis of any conceivable legitimate interest.

We recognize that this holding does not accord with that of other circuits.  See United States v. Deberry, 576 F.3d 708 (7th Cir. 2009); United States v. Johnson, 581 F.3d 994 (9th Cir. 2009); United States v. Beatty, 538 F.3d 8 (1st Cir. 2008); United States v. Newson, 515 F.3d 374 (5th Cir. 2008). Those courts have concluded that the Government may withhold a § 3E1.1(b) motion based on any rational interest. This conclusion relies heavily on cases interpreting § 5K1.1.

In our view, for the reasons explained above, the commentary to § 3E1.1(b) forecloses courts from relying on § 5k1.1 cases in interpreting § 3E1.1(b). This commentary, however, has received little attention from our sister circuits. Instead, those courts focus almost exclusively on the fact that Congress in 2003 amended § 3E1.1(b) to insert the governmental motion requirement. See PROTECT Act, Pub. L. No. 108-21, § 401(g). According to those courts, the mere fact of this 2003 amendment somehow demonstrates that Congress intended that the Government possess the wide discretion under § 3E1.1(b) that it enjoys under § 5K1.1. But nothing in the 2003 reforms evinces such an intent. After all, Congress could have amended the § 3E1.1(b) commentary so that it conformed to the commentary surrounding § 5K1.1. Congress declined to do so; it instead left unchanged § 3E1.1(b)’s mandatory commentary and inserted language suggesting that the Government’s newfound discretion applies only to the question of "whether the defendant has assisted authorities in a manner that avoids preparing for trial." U.S.S.G. § 3E1.1 cmt. 6.

July 5, 2011 at 05:12 PM | Permalink

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Comments

good for him for standing up to the federal govt's blackail and for the appeals court for standing with him!

Posted by: rodsmith | Jul 5, 2011 5:22:00 PM

A good and correct result for Mr. Divens. I wish I could say the same for Mr. Johnson. See n.2. Just because someone enters into a "conditional plea, preserving the right to appeal the denial of his suppression motion" does not also mean that he did not "timely notify" the government of his intention to plead guilty so as to avoid trial preparation.

I guess I'm not sure why the panel's rationale would not equally apply to a conditional plea, so long as that guilty plea was timely made.

Posted by: DEJ | Jul 5, 2011 6:21:55 PM

Right you are rod. At long last a court sees the waiver of appeal as the piece of crap it really is. I am sure that the inventor of this tool of intimidation, Mr. Bill Otis, will be mightily upset.

Posted by: Thomas | Jul 5, 2011 6:53:32 PM

"At long last a court sees the waiver of appeal as the piece of crap it really is."

Complete, arrant nonsense. The case does not come close to doubting or even slightly criticizing the validity of the waiver, since, to start with, there was no waiver entered. To the extent the waiver is mentioned at all, it's by way of citing with approval the original, and unquestioned, Fourth Circuit case endorsing it, United States v. Wiggins, 905 F.2d 51, 53-54 (4th Cir. 1990)(see slip op. at 5).

You don't have to be a lawyer to know that the Supreme Court has repeatedly held that a criminal defendant can elect to waive many important constitutional and statutory rights during plea bargaining. See United States v. Mezzanatto, 115 S. Ct. 797, 801 (1995); Tollett v. Henderson, 411 U.S. 258, 267 (1973); Blackledge v. Allison, 431 U.S. 63, 71 (1977, cert. denied, 116 S. Ct. 548 (1995). It helps, however, if your understanding of law has advanced beyone the seventh grade "piece of crap" stage.

Consistent with these SCOTUS cases, the courts of appeals have upheld the validity of a sentencing appeal waiver. See, e.g., United States v. Allison, 59 F.3d 43, 46 (6th Cir. 1995); United States v. Schmidt, 47 F.3d 188, 190 (7th Cir. 1995); United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994), cert denied, 115 S. Ct. 1957 (1995); United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993), cert. denied, 115 S. Ct. 652 (1994); United States v. DeSantiago-Martinez, 980 F.2d 582, 583 (9th Cir. 1992), amended, 38 F.3d 394 (1994), cert. denied, 115 S. Ct. 939 (1995); United States v. Melancon, 972 F.2d 566, 567-568 (5th Cir. 1992); United States v. Rivera, 971 F.2d 876, 896 (2d Cir. 1992); United States v. Rutan, 956 F.2d 827, 829-830 (8th Cir. 1992).

The Fourth Circuit itself has upheld the waiver in circumstances far more vexing from the defendant's point of view than existed in the present case, see United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).

As I say, you don't have to be a lawyer to know any of this. It helps, however, to take at least a slight interest in the truthfulness of what you claim, rather than making the delusional, if indignant, assertion that what YOU think is what the COURT thinks.

Posted by: Bill Otis | Jul 5, 2011 8:54:40 PM

well bill what i can almost guarantee is if you asked ANY of the people who WROTE THE CONSTUTION if you could legally FORFIT a RIGHT they would either have laughed at you of KILLED you for treason!

Posted by: rodsmith | Jul 6, 2011 2:05:02 AM

I can't say as I blame Mr. Otis for championing the use of appelate waivers in plea bargains. In theory, bargains are just that: an agreement on terms based on what both sides are willing to accept. Requirement of appeals waiver isn't blackmail, but it certainly uses lop-sided leverage to ensure that your beloved conviction rate isn't damaged by kick back from the circuit court level.

The issue at bar is whether the government can retaliate against a defendant who accepts responsibility for his actions but does not accept the terms given to him by prosecutors who use Mr. Otis' appeals waiver stipulation in a plea agreement.

U.S.S.G. §3E1.1 reductions for acceptance of responsibility are entirely separate from §5K1.1 assistance to prosecution. Using §5K1.1 arguments to justify retributionary denial of a §3E1.1 motion for acceptance of responsibility is flawed. Its also just plain mean.

I send my gratitude to the 4th Circuit for at least separating the two types of reductions.

Posted by: Eric Matthews | Jul 6, 2011 2:48:02 AM

I always knew Judges Motz and Gregory were hard core liberal, but I thought Judge Shedd was pretty conservative.

What's hard to understand: "Therefore, when a defendant has unconditionally
pled guilty, his refusal to sign such an appellate waiver has no impact on his ability to challenge his conviction or on the Government’s need to "anticipate" such a challenge."

To me and the rest of the circuits- UNCONDITIONALLY - means unconditionally. Only in the now turned liberal 4th circuit does it mean maybe yes maybe no. Clueless. Guaranteed reversal.

Posted by: DeanO | Jul 6, 2011 7:58:11 AM

well my problem with the agreements is pretty simple.

IF the STATE thinks their cases are so weak as to NOT be able to withstand review that they resort to BLACKMAIL to get these agreements.

MAYBE they don't need to be taking the cases!

Posted by: rodsmith | Jul 6, 2011 11:13:41 AM

"The case does not come close to doubting or even slightly criticizing the validity of the waiver, since, to start with, there was no waiver entered.

Excuse me. Of course, there was no waiver entered. Was that not the point? Divens REFUSED to sign the waiver and the court ruled that the refusal cannot be held against him. Is that not considered to be even a little critical of the waiver process? Does it not say, just a little bit, that the prosecutor cannot use the intimidation factor of saying to the defendant that if you don't cave in to this blackmail and waive your constitutional rights, we will bury you?

Oh well, I did say up front that Bill would be upset at any criticism of his pet project and claim to fame and his typical distractionary rant confirms it LOL.

Posted by: Thomas | Jul 6, 2011 12:32:07 PM

"Of course, there was no waiver entered. Was that not the point?"

No, it was not the point. The point was made quite clear, and this was it (quote-unquote): "At long last a court sees the waiver of appeal as the piece of crap it really is."

And continuing: "Divens REFUSED to sign the waiver and the court ruled that the refusal cannot be held against him. Is that not considered to be even a little critical of the waiver process?"

Even if it were "a little critical of the waiver process," that is a laughably far cry from the original, blustering claim that the Court "sees the waiver of appeal as the piece of crap it really is."

My, my. From "piece of crap" to "a little critical." That wonderfully soft-peddled fifty mile retreat would be a joke if it were less sleazy.

But that's not the main thing. The main thing is that there is NO REASON WHATEVER to think that the Court's opinion is critical of the waiver "process," much less the waiver itself, which is what I was talking about.

And why does the comment provide no reason? Because none exits!

"Does it not say, just a little bit, that the prosecutor cannot use the intimidation factor of saying to the defendant that if you don't cave in to this blackmail and waive your constitutional rights, we will bury you?"

Notice that the hot-button words employed (intimidation, blackmail, bury) are all supplied by the commenter, not the Court. If the Court had used them, of course he would gleefully quote them. He doesn't because he can't -- proving, as I noted, that's he's too superior to be able to distinguish between what he thinks and what the Court thinks.

Notice also that the high-horse lecture is given without discussing, citing to or even acknowledging the existence of ANY of the numerous cases I cited. And why is that? Because, if you have enough attitude, you don't need to know any law! Far out!!!

It's too bad. If the author had even a slight interest in educating himself rather than holding forth, he would know that THERE IS NO CONSTITUTIONAL RIGHT TO APPEAL, and still less is there a Constitutional right to appeal one's sentence. His line about, if you don't "waive your constitutional rights, we will bury you," is intended to be an expression of indignation but is actually an expression of breathtaking ignorance of Constitutional law.

So what we have here is the typical distraction from substantive legal analysis, accomplished by the usual brew of ad hominem snark, ignorance of the law, back-peddling and deceit.

Impressive.

Posted by: Bill Otis | Jul 6, 2011 2:11:48 PM

"My, my. From "piece of crap" to "a little critical." That wonderfully soft-peddled fifty mile retreat would be a joke if it were less sleazy."

Not a retreat at all and that is your distractionary jump not mine. The waiver is still a piece of crap as is any "sleazy" document used to threaten and intimidate someone into giving up his or her rights. As in "if you don't sign this waiver we will deny all other consideration for reduction of offense level" or exactly what happened in this case. The waiver is nothing but a tool of intimidation and rather than crowing repeatedly about being its "inventor", you should be ashamed for dreaming up such a travesty.

"Because, if you have enough attitude, you don't need to know any law! Far out!!!

Maybe so but just because some egotistical clown or group of the same thinks it is legal does not necessarily make it so. As in this case the Fourth Circuit "recognized that this holding does not accord with that of other circuits" and yet they ruled differently. What may be "legal" is not always considered the same by every reader. Laws are changed every day and now and then, they are declared unconstitutional.

"If the author had even a slight interest in educating himself rather than holding forth, he would know that THERE IS NO CONSTITUTIONAL RIGHT TO APPEAL"

Is this yet another distraction Bill? I don't remember making any comment about a "constitutional" right to appeal. However, as a general comment is there a constitutional right to trial? Is that right often waived as part of a plea deal that includes a waiver of the "right" to appeal? If there are no rights of appeal, why be so dead set on having every defendant waive the "right"? There is also no freestanding constitutional right not to be framed as stated by some of your federal brethren in a recent Supreme Court case and, using tools like the waiver, federal prosecutors are doing a good job of it.

"So what we have here is the typical distraction from substantive legal analysis, accomplished by the usual brew of ad hominem snark, ignorance of the law, back-peddling and deceit.'

This is just too good. Here we have the master of distraction and diversion accusing someone else of dealing in diversion and topping it off with name-calling and accusations of ignorance and deceit. There is no deceit at all. Just a statement of my OPINION that the waiver is a piece of crap. This case is based on yet another OPINION of those who sit on the Fourth Circuit Court. It is Bill's OPINION that is most often presented here and when anyone disagrees, they get the treatment seen in Bill's comments here. A little beneath you Bill but not at all unexpected.

Posted by: Thomas | Jul 6, 2011 5:39:45 PM

Me (quoting Thomas): "From 'piece of crap' to 'a little critical.' That wonderfully soft-peddled fifty mile retreat would be a joke if it were less sleazy."

Thomas: "Not a retreat at all and that is your distractionary jump not mine."

Thomas disavows his own words. Far out.

Thomas: "I don't remember making any comment about a 'constitutional' right to appeal."

Thomas shows his memory to be even more deficient than his manners. At Jul 6, 2011 12:32:07 PM, Thomas writes, referring to the detested waiver of appeal provision, "Does [the Court] not say, just a little bit, that the prosecutor cannot use the intimidation factor of saying to the defendant that if you don't cave in to this blackmail and waive your constitutional rights, we will bury you?"

I guess someone else must have typed in "...waive your constitutional rights," since Thomas can't recall making any comment about such rights.

But enough.

I invite Thomas to debate me live and in-person on the question. The issue will be: "Resolved, the waiver of sentencing appeal provision in federal plea agreements should be banned." Thomas will take the affirmative, and I, the negative.

The debate will be held before an audience of law students at Georgetown Law Center, where I will arrange to get a room. (If Thomas has a better suggestion, I'm all ears, but it's going to be at an accedited law school).

My own experience is that live debates tend to be a good test of whether snark, arrogance and aggressive ignorance work to win over audiences, but maybe that's just me.

Because Thomas is not a lawyer and has no courtroom experience of which I am aware, he may, at his option, bring a lawyer or law professor with him to help present his case.

The debate will be scheduled for a day and time of mutual convenience, and will last one hour. There will be time provided for audience questions. It will also be taped, so that it can be linked and re-played on this site and on Crime and Consequences.

By his repeated superior and insulting remarks, Thomas has made it more than clear that he regards his postion on the issue, not to mention his intelligence, candor and overall character, as markedly better than mine (thus the constant speaking down). The debate will be his chance to demonstrate these superior personal virtues, and of course the higher wisdom of his position on the question, and thus put me to shame. I see no reason for him not to jump at the chance.

I await his response.

Posted by: Bill Otis | Jul 7, 2011 12:38:18 AM

LOL, Got your dander up huh Bill. Exactly the idea. Only gave you a little taste of your own distractionary, misdirection, taking words out of context, mischaracterization, twisting words, tactics. Take your "debate" and stick it. You are a blowhard who will never concede the fact that just because you say it is right so does not make it so.

The waiver is still a piece of crap that you should be ashamed of fostering on the legal profession. Of course, taking the most simplistic approach, there is nothing wrong with making a plea agreement between the government and the accused and if the accused "chooses" to waive his/her right to appeal, that is ok. But nothing is "simple" when dealing with a prosecutor and there are many, perhaps excluding yourself I'll give you the benefit of the doubt, who have and continue to use the waiver of certain "rights" whether constitutionally guaranteed or not, to bludgeon the accused. The waiver is held over the accused persons head like a sword. If the accused were to choose a trial over a plea, there are certain reductions in offense level that may be due and would be granted without much discussion. Why then, should the prosecutor, in a plea agreement be allowed to threaten the accused with having these reductions withheld if they refuse to sign the waiver? This case is an example and the court said no. Is this not blackmail, is this not intimidation, is this not prosecutorial malfeasance? I say that it is. You see, the problem is not with the concept of the waiver; the problem is with the lowlife prosecutors who misuse it with impunity knowing full well that they will never be called on their misconduct. In addition, if they are called on it they know that they are immune.

Debate, on your turf at my expense, what a joke. Get a life, you are not nearly as important as you think. Answer enough for you?

Posted by: Thomas | Jul 7, 2011 3:49:42 PM

1. Then make your own proposal as to site and terms.

2. I do not invite you to debate because I think I'm important (or you are). I invite you to debate because the ISSUE is important, as you seem to agree.

3. The reason a live debate with an audience is an especially useful forum is that it discourages its participants from indulging silly, diversionary and ad hominem motives like "getting your dander up," and encourages staying on the LEGAL TOPIC.

4. I suspect that one important reason you refuse to debate is that you find it more in keeping with the manners you were apparently reared with to say, in Internet anonymity, such things as, "Take your 'debate' and stick it," and "Get a life, you are not nearly as important as you think."

This kind of thing is juvenile, and that's being charitable. Do you really not understand that? Live debates require adults. Chronologically, you are an adult, and I strongly suspect you can act like one when you want to. Why not give it a try? As I said, it will give you the ideal opportunity to show me up for the amoral, heartless, rules-bending, bloodlusting cretin you take me to be.

The invitation remains open, with your suggestions welcome, as noted above. I shall await your response.

Posted by: Bill Otis | Jul 7, 2011 4:43:55 PM

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