Judge Rakoff asserts USSG § 3E1.1(b) is "effectively an unconstitutional penalty" on Sixth Amendment trial rights

A helpful colleague made sure I saw the notable new opinion handed down earlier this week by SDNY Judge Jed Rakoff in US v. Tavberidze, No. 23-cr-585-03 (SDNY Mar. 10, 2025) (available here).  Long-time readers likely know that Judge Rakoff has been complaining, in various ways in various fora, about the severity to the federal sentencing guidelines, mandatory minimum sentencing statutes and the "trial penalty" for many years.  But in this new Tavberidze ruling, Judge Rakoff focuses his particular attention on one aspects of the guidelines' reduction under § 3E1.1 for "Acceptance of Responsiility."

The Tavberidze ruling merits a read in full to appreciate its many nuances (and arguably tentative nature).  Here are a few paragraphs providing a taste from the start and close of the opinion: 

Why do so few cases go to trial? One reason is the so-called “trial penalty.” Since a prosecutor typically charges -- and is currently required to charge at the outset  -- the most serious crimes she can prove, a plea bargain to a lesser charge reduces the risk of the often much higher penalty a defendant would face if convicted at trial. And given the prevalence of legislatively-prescribed mandatory minimum prison terms, there is little a judge can do about this in many cases. Moreover, even in those cases where the charges do not carry mandatory minimum prison terms, the Sentencing Guidelines (“Guidelines”) effectively reinforce the trial penalty by reducing the offense level calculation by two points if the defendant “clearly demonstrates acceptance of responsibility” by pleading guilty, and by a third point if, in the Government's view, the defendant has pled guilty quickly enough to permit the prosecutor to avoid preparing for trial. U.S.S.G. § 3E1.1. While the underlying theory of the two-point reduction is that a guilty plea evidences, and rewards, a defendant's remorse, the third point reduction is justified simply on the ground of saving prosecutorial resources. See id. at cmts. 1 & 6....

In due course, the defendant was convicted by a jury and will be sentenced shortly. It follows from the practice of this Court outlined above that the Court, though required to calculate the range of months of imprisonment recommended by the Guidelines, will disregard the three points effectively added to the offense level that would have been removed if the defendant had pleaded guilty. But on further reflection, the Court has reached the conclusion that one of those three points, effectively added to the calculated offense level because of the failure of the defendant to save the Government resources, pursuant to section 3E1.1(b) of the Guidelines, ought not even be included in the Guidelines calculation at all, because in reality it is an unconstitutional penalty imposed on a defendant for exercising his constitutional right to trial. The Court thus issues this pre-sentence Opinion to inform the parties of this conclusion, so that, if the Government disagrees, it can be heard at the time of sentencing....

Because of the odd way in which section 3E1.1 as a whole is phrased -- as a reduction in offense level for a defendant's not exercising his constitutional right to go to trial -- the remedy for the Court's conclusion that section 3E1.1(b) is unconstitutional is to reduce the penalty thereby effectively imposed on those who choose not to avail themselves of the “benefit” of section 3E1.1(b). The Court therefore concludes that in this, and indeed every case in which a defendant chooses to go to trial but is convicted by a jury, or in which the defendant simply chooses to consider going to trial until after the Government has already started preparing for trial, the formal calculation of the offense level must be reduced by one point, because the effect of not giving the one-point reduction to someone who chose to exercise, or considered exercising, his right to go to trial rather than save the Government some time and money is effectively an unconstitutional penalty on all who made that choice.

Whether the other, two-point reduction authorized by section 3E1.1(a) for those who plead guilty and thereby allegedly show their remorse is nonetheless itself an unconstitutional penalty imposed for their exercise of their constitutional right to trial is an issue the Court need not reach in this case, since the Court, for the discretionary and policy reasons stated at the outset of this Opinion, will in any case treat Mr. Tavberidze as having the equivalent of a Guidelines range three points less than what the formal Guidelines calculation would otherwise mandate.