United States v. Divens: Divens pled guilty to distributing cocaine, signed his acceptance of responsibility letter, but declined to sign a plea agreement that would waive his right to appellate review and collateral attack. The Government subsequently refused to give Divens a third-level reduction for acceptance of responsibility under sect. 3E1.1(b).
At the time of sentencing, Divens objected to the pre-sentence report Guidelines calculation, acknowledging that the district court could only award the third level reduction upon motion of the Government, and the Government argued that its refusal to move for the additional reduction was "rationally related to the purposes of the guidelines" because it allowed the Government to avoid defense of "a complete appeal" and to "allocate its resources to other matters."
The Fourth Circuit broke with other circuits in determining that the Government does not enjoy the discretion it does under sect. 5K1.1 in sect. 3E1.1, finding that sect. 3E1.1 does not require that a defendant provide the prosecution with assistance that must reduce "expense and uncertainty" at attends an appeal. Nothing in sect. 3E1.1 permits the Government to withold the third level reduction on the basis of an interest in conserving appellate resources. Next, the Fourth Circuit disagreed with the Government that courts should interpret the guidelines in a manner that facilitates the Government's pursuit of appellate waivers. Third, the Fourth Circuit held that when a defendant pleads guilty unconditionally in a timely fashion, that defendant's refusal to sign an appellate waiver has no impact on the ability to challenge a conviction or on the Government's need to "anticipate" such a challenge.
Congrats to Jonathan Byrne in the Southern District of West Virginia!!!
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