Refusing To Compare Apples and Oranges: Why the Fourth Circuit Got It Right in United States v. Divens

BY Tziporah Schwartz Tapp

In United States v. Divens, the Fourth Circuit reviewed a defendant’s appeal challenging the district court’s decision at sentencing that allowed the Government to withhold an extra acceptance of responsibility reduction under the United States Sentencing Guidelines (“Guidelines”) section 3E1.1(b). The Fourth Circuit reached a “very interesting and perhaps somewhat surprising” result: it vacated the defendant’s sentence and remanded the case for further proceedings. The court ruled that the Government could not base its refusal to move for the extra acceptance of responsibility reduction on a defendant’s refusal to waive appellate rights. It refused to analogize section 3E1.1(b) to section 5K1.1. Section 5K1.1 provides for a downward departure upon a Government’s motion stating “that the defendant has provided substantial assistance” to the Government. In doing so, the Fourth Circuit split with the First, Fifth, Seventh, and Ninth Circuits, which all allow the Government broad discretion under section 3E1.1(b). The Fourth Circuit narrowed the Government’s discretion under section 3E1.1(b) to determine whether the defendant “timely” entered a “plea of guilty.”

This Recent Development argues that, despite creating a circuit split, the Fourth Circuit’s refusal to allow prosecutors to condition the extra sentence reduction on a defendant’s waiver of the right to appeal was correct. The court’s analysis is logical, clear, and furthers the Guidelines’ purpose of conserving scarce trial resources. Divens also reinforces other objectives that the criminal adjudication system values: predictability and certainty in federal sentencing. The extra acceptance of responsibility reduction is an adjustment that allows a defendant to “reduce his offense level and, ultimately, his advisory sentencing range” by assisting “authorities in the investigation or prosecution of his own misconduct by” either “timely providing complete information to the [G]overnment concerning his own involvement in the offense” or by “timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the [G]overnment to avoid preparing for trial and permitting the court to allocate its resources efficiently.” In Divens, the precise legal issue was whether the government has the power to condition a section 3E1.1 motion on the refusal by a defendant to waive appellate rights. The Fourth Circuit split with its sister circuits when it decided that section 3E1.1(b) should not be read to place near-unreviewable discretion, a la section 5K1.1, in the government over section 3E1.1 motions. The decision in Divens reflects a new analysis of section 3E1.1(b) that relies on the plain language of the Guidelines and their commentary instead of congressional intent. The Fourth Circuit’s approach has already guided the Second Circuit’s analysis in United States v. Lee, and the circuit split raises interesting questions about the acceptance of responsibility scheme that the U.S. Supreme Court should resolve.

DOWNLOAD PDF | 90 N.C. L. Rev.1267 (2012)

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