A POWER AND A DUTY: PROSECUTORIAL DISCRETION
AND OBLIGATION IN UNITED STATES SENTENCING
GUIDELINE § 3E1.1(B)
Laura Waters †
TABLE OF CONTENTS
INTRODUCTION .................................................................................................................814
I.
BACKGROUND ............................................................................................................816
A. The Guidelines’ Role in Modern Federal Sentencing Procedure ..............816
B. A Closer Look at § 3E1.1: Acceptance of Responsibility and Timely
Notification of Intent to Plead Guilty .........................................................817
C. The Dispute: Prosecutorial Discretion vs. Obligation Under
§ 3E1.1(b) .......................................................................................................819
1. A Majority of Circuits Have Held That § 3E1.1(b) Allows
for Significant Prosecutorial Discretion ........................................820
2. A Minority of Circuits Have Held That § 3E1.1(b) Grants
Limited Discretion to and Imposes Certain Duties on
Prosecutors ........................................................................................823
II. SEARCHING FOR MEANING: TEXT, COMMENTARY, AND BEYOND ........................828
A. Explicating the Text, Commentary, and Structure of § 3E1.1 .................828
B. Legislative History: The Feeney Amendment and Its Lack of
Congressional Intent .....................................................................................832
C. The Rule of Lenity: Push Goes to the Defendant .......................................835
D. Context Matters: Policy and Efficiency Concerns Affecting
§ 3E1.1(b) .......................................................................................................836
1. Broader Judicial Review Places a Necessary Check on
Prosecutors’ Already Significant Power in the Sentencing
Process and Fosters Uniformity .....................................................836
†
Senior Notes Editor, Cardozo Law Review; J.D. Candidate (May 2013), Benjamin N.
Cardozo School of Law; B.S., Northwestern University, 2008. 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
814
CARDOZO LAW REVIEW
2.
[Vol. 34:813
The U.S.S.C. Wants to Incentivize Plea Bargains, Not
Discourage Them..............................................................................838
III. REMAINING CRITICISMS AND COUNTERARGUMENTS ............................................839
A. Booker Allows Judges to Deviate from the Guidelines, Acting as an
Escape Hatch .................................................................................................839
B. The Feeney Amendment’s Legislative History Can Be Interpreted to
Demonstrate Congress’ Intent to Give Prosecutors More, Not Less,
Discretion .......................................................................................................840
CONCLUSION......................................................................................................................842
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 626.
3 United States v. Gurley, 860 F. Supp. 2d 95, 117 (D. Mass. 2012).
4 Id.
5 18 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, 1194–
97 (2005).
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, § 3E1.1.
9 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.
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 http://www.ussc.gov/About_the_Commission/Overview_
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).
16 18 U.S.C. § 3553 (2006).
17 18 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].”).
18 543 U.S. 220 (2005).
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 § 3553. 22 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 245–46. 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 226–30. 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 227–28 (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. § 3553.
23 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, 570–71 (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).
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
See, e.g., U.S.S.G., supra note 6, § 2B3.1(a) (listing the base offense level for robbery).
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), 3E1.1.
27 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 324–405
months. Id. ch. 5, pt. A. But a one-point downward departure would put the same offender into
a range of 292–365 months, resulting in a forty month difference at the high end of the
guidelines range. Id.
31 Id. § 3E1.1.
32 Id. § 3E1.1(a).
33 Id. § 3E1.1(a) cmt. n.1.
34 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).
25
26
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. 41
Id.
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, 710–11 (7th Cir. 2009); United States v. Beatty, 538 F.3d 8, 13–16 (1st
Cir. 2008); United States v. Drennon, 516 F.3d 160, 161–62 (3d Cir. 2008); United States v.
Newson, 515 F.3d 374, 377–78 (5th Cir. 2008); United States v. Gunn, 215 F. App’x 785, 791–92
(11th Cir. 2007) (per curiam); United States v. Espinoza-Cano, 456 F.3d 1126, 1134–36 (9th Cir.
2006); United States v. Moreno-Trevino, 432 F.3d 1181, 1185–86 (10th Cir. 2005); United States
v. Wattree, 431 F.3d 618, 623–24 (8th Cir. 2005); United States v. Smith, 429 F.3d 620, 627–28
(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, 173–75 (2d Cir. 2011); United States v.
Divens, 650 F.3d 343, 345–47 (4th Cir. 2011).
38 See Lee, 653 F.3d at 173; Divens, 650 F.3d at 345–46; DeBerry, 576 F.3d at 710; Beatty, 538
F.3d at 14; Drennon, 516 F.3d at 162–63; Newson, 515 F.3d at 378; Gunn, 215 F. App’x at 791–
92; 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 628.
39 See Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of
2003 (PROTECT Act), Pub. L. No. 108-21, § 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.
36
37
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 3E1.1.
1.
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,
See supra note 38.
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, 185–86
(1992) (internal quotation marks omitted)).
46 504 U.S. 181 (1992).
47 Id. at 185–86.
48 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.
42
43
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.
Wade, 504 U.S. at 185.
Id. at 185–86.
53 Id.
54 See, e.g., Beatty, 538 F.3d at 15.
55 United States v. DeBerry, 576 F.3d 708, 710–11 (7th Cir. 2009); Beatty, 538 F.3d at 13–16;
United States v. Drennon, 516 F.3d 160, 161–62 (3d Cir. 2008); United States v. Newson, 515
F.3d 374, 377–78 (5th Cir. 2008); United States v. Gunn, 215 F. App’x 785, 791–92 (11th Cir.
2007) (per curiam); United States v. Espinoza-Cano, 456 F.3d 1126, 1134–36 (9th Cir. 2006);
United States v. Moreno-Trevino, 432 F.3d 1181, 1185–86 (10th Cir. 2005); United States v.
Wattree, 431 F.3d 618, 623–24 (8th Cir. 2005); United States v. Smith, 429 F.3d 620, 627–28
(6th Cir. 2005).
56 See supra note 54.
57 Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of
2003 (PROTECT Act), Pub. L. No. 108-21, § 401(g), 117 Stat. 650, 667.
58 See, e.g., DeBerry, 576 F.3d at 710; Beatty, 538 F.3d at 13–14; Drennon, 516 F.3d at 161–
62; Gunn, 215 F. App’x at 791; Espinoza-Cano, 456 F.3d at 1134; Moreno-Trevino, 432 F.3d at
1185–86; Wattree, 431 F.3d at 623–24; Smith, 429 F.3d at 627.
59 576 F.3d 708 (7th Cir. 2009).
51
52
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. 67
60 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 710–11.
62 Beatty, 538 F.3d at 13–14. 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, 185–86 (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 162–163; Gunn,
215 F. App’x at 791–92; United States v. Newson, 515 F.3d 374, 378 (5th Cir. 2008); EspinozaCano, 456 F.3d at 1135–36; Moreno-Trevino, 432 F.3d at 1186; Wattree, 431 F.3d at 623–24;
Smith, 429 F.3d at 627–28.
64 See, e.g., DeBerry, 576 F.3d at 711; Newson, 515 F.3d at 378–79.
65 Newson, 515 F.3d at 378.
66 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, 174–75 (2d Cir. 2011).
67 Beatty, 538 F.3d at 10–12, 15–17. However, in its opinion, the court never explained
exactly why this was a legitimate government end. Id. at 14–16. 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.
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.” 71
2.
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. 76
432 F.3d 1181.
Id. at 1183–84, 1186–87.
70 Id. at 1187.
71 Id. at 1186.
72 United States v. Lee, 653 F.3d 170, 173–74 (2d Cir. 2011); United States v. Divens, 650
F.3d 343, 345–46 (4th Cir. 2011).
73 See Lee, 653 F.3d at 173–74; Divens, 650 F.3d at 348–49.
74 653 F.3d 170.
75 650 F.3d 343.
76 Lee, 653 F.3d at 174–75 (“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
68
69
824
CARDOZO LAW REVIEW
a.
[Vol. 34:813
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 3E1.1. 80 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 3E1.1. 84
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 344.
78 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 347.
81 Id. at 348–49.
82 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 345–47.
85 Id. at 345 (discussing U.S.S.G., supra note 6, § 3E1.1(b)).
86 Id.
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 § 3E1.1. 95
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
Id.
Id. (discussing U.S.S.G., supra note 6, § 3E1.1(b)).
89 Id. at 348.
90 Id.
91 Id. at 348–49. 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, 533–34 (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 349.
93 Id. at 348–49 (citing U.S.S.G., supra note 6, § 3E1.1 cmt. nn.2, 5, 6).
94 Id.
95 Id. at 345–46.
87
88
826
CARDOZO LAW REVIEW
[Vol. 34:813
enjoys more discretion under 5K1.1 than under 3E1.1. 96 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.” 105
Id.
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 346.
100 United States v. Lee, 653 F.3d 170 (2d Cir. 2011).
101 Id. at 172.
102 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
96
97
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 3E1.1. 115 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 172–73.
106 Id. at 173.
107 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, 345–48 (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 173.
113 Id. at 172–75.
114 464 F.3d 355 (2d Cir. 2006).
115 Id. at 360. The Sloley court also noted that prosecutorial discretion, “is subject, for
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 173.
117 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 § 59.03 (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).
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.6.
123 See Lee, 653 F.3d at 174; Divens, 650 F.3d at 346–47.
124 United States v. DeBerry, 576 F.3d 708, 710 (7th Cir. 2009); United States v. Beatty, 538
F.3d 8, 13–14 (1st Cir. 2008); United States v. Drennon, 516 F.3d 160, 162–63 (3d Cir. 2008);
United States v. Newson, 515 F.3d 374, 378 (5th Cir. 2008); United States v. Gunn, 215 F. App’x
785, 791–92 (11th Cir. 2007) (per curiam); United States v. Sloley, 464 F.3d 355, 359–360 (2d
Cir. 2006); United States v. Espinoza-Cano, 456 F.3d 1126, 1135–36 (9th Cir. 2006); United
States v. Moreno-Trevino, 432 F.3d 1181, 1185–86 (10th Cir. 2005); United States v. Wattree,
431 F.3d 618, 623–24 (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 97–98 (explaining that the use of the
830
CARDOZO LAW REVIEW
[Vol. 34:813
it allows for prosecutors to exercise discretion in deciding whether the
defendant has met the 3E1.1(b) requirements. But where the defendant
has met those requirements, based on the plain language and
commentary, it would conflict with the intent of the Guideline to refuse
to move for any other reason. The phrase “upon motion of the
government” does not exist in a vacuum.
The majority of courts’ reliance on using 5K1.1 as a guide for how
to interpret 3E1.1 is also flawed. As noted above, these courts seized on
the fact that both 5K1.1 and 3E1.1 required motions by the government
and, as such, they should be treated similarly. 128 This rationale seems to
implicitly rely on the familiar canon of construction known as in pari
materia, whereby like statutory provisions found in comparable
statutory schemes are applied the same way. 129 The majority’s apparent
reliance on an in pari materia argument is not, on its face,
inappropriate; however, the use of such a canon is only appropriate
where two or more statutes are sufficiently analogous.
For example, in Lorillard v. Pons, 130 the Supreme Court interpreted
the Age Discrimination in Employment Act (ADEA) analogously to the
Fair Labor Standards Act (FLSA), after which the ADEA was
modeled. 131 Indeed, the language of the relevant portions of the two
statutes was almost identical. 132 But interpretation based on analogy has
its limits, as Lorillard also demonstrated. 133 While approving of the
respondent’s comparison of ADEA and the FLSA, the Court rejected the
petitioner’s argument that ADEA should be interpreted akin to the Title
VII of the Civil Rights Act of 1964. 134 The Court recognized that there
were several “important similarities between the two statutes . . . both in
their aims . . . and in their substantive provisions,” but ultimately
decided that the text of the statutes made them too divergent to be
treated analogously. 135 The differences cited were not enormous. The
Court’s determination turned on such deviations as that ADEA’s text
discussed “legal or equitable relief,” but that Title VII “did not authorize
‘legal’ relief in so many words,” or that ADEA stated that employers
word “provides” in comment 6 of the § 3E1.1(b) commentary indicates an entitlement to that
reduction where a defendant meets the requisite criteria).
128 See supra, note 63.
129 See BLACK’S LAW DICTIONARY 862 (9th ed. 2009) (defining “in pari materia” as a canon
of statutory construction whereby statutes “relating to the same matter” may be “construed
together, so that inconsistencies in one statute may be resolved by looking at another statute on
the same subject”).
130 434 U.S. 575 (1978).
131 Id. at 580–83.
132 Id. at 583–84; see also Cartledge v. Miller, 457 F. Supp. 1146, 1155–56 (S.D.N.Y. 1978)
(interpreting the Employee Retirement Income Security Act (ERISA) anti-assignment statute
using prior interpretations of other statutes with anti-assignment provisions that were quite
similar).
133 Lorillard, 434 U.S. at 583–85.
134 Id. at 580–85.
135 Id. at 584–85.
2012]
A POWER AND A DUTY
831
“shall be liable” for unpaid wages, while Title VII made such payment “a
matter of equitable discretion.” 136 But those seemingly small variances
were enough for the Court to reject treating the two statutes similarly. 137
Given such limitations on interpreting provisions in pari materia,
therefore, 5K1.1 and 3E1.1 are not sufficiently analogous to warrant
applying 5K1.1’s standard of review to 3E1.1. Such a conclusion should
be clear from examining the text of the two provisions. First, as noted by
the Divens court, the language used in application note 6 to 3E1.1—but
conspicuously absent from the application notes of 5K1.1—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 its own misconduct by taking the steps set forth in
subsection (b),” indicates an entitlement for defendants who have
fulfilled these requirements. 138 The same is true for application note six
for the initial version of 3E1.1, which states that “[s]uch a defendant has
accepted responsibility in a way that ensures the certainty of his just
punishment in a timely manner, thereby appropriately meriting an
additional reduction.” 139 And this note also has no sufficient corollary in
5K1.1. This indicates that the U.S.S.C. intended for prosecutors to enjoy
much wider discretion in 5K1.1 than in 3E1.1, such that an analogy to
5K1.1 does not make sense. 140 But beyond the Divens court’s in-depth
analysis remains another key difference between these two provisions:
their actual structures.
Section 5K1.1 merely states that the government may move for a
reduction when it decides “the defendant has provided substantial
assistance in the investigation or prosecution of another person who has
committed an offense,” and provides a non-exhaustive list of situations
136
137
138
n.6).
Id. at 584.
Id. at 584–585.
United States v. Divens, 650 F.3d 343, 346 (4th Cir. 2011) (quoting U.S.S.G § 3E1.1 cmt.
139 Id. (quoting U.S.S.G., supra note 6, § 3E1.1 cmt. background). The court further
explained in a footnote:
We recognize that these portions of the commentary originally accompanied a
version of § 3E1.1(b) that lacked the current requirement of a governmental motion.
See U.S.S.G. § 3E1.1(b) (2002). And unlike that requirement, which Congress in 2003
inserted into the Guidelines, see PROTECT Act, Pub.L. No. 108-21, § 401(g) (2003),
the mandatory language was drafted by the Sentencing Commission. But neither fact
weakens the commentary’s persuasive force, because Congress has delegated to the
Commission the authority to interpret the Guidelines, and Commission commentary
binds us “even though it is not reviewed by Congress.” Stinson v. United States, 508
U.S. 36, 46, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Indeed, Congress’s decision to
amend the commentary in 2003 but leave intact the existing mandatory language
provides additional evidence of congressional approval of that mandatory language.
See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Serv., 545 U.S. 967, 992–93,
125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).
Id. at 346 n.1.
140 Divens, 640 F.3d at 345–46.
832
CARDOZO LAW REVIEW
[Vol. 34:813
in which the government may consider making such a motion. 141 The
provision then leaves to the court’s discretion the extent of a reduction
such a motion would warrant. 142 Every element of the provision is
vague, so it fits that this provision is reviewed only for
unconstitutionality or a rational relationship to a legitimate government
objective. 143 There is little else for which it could be reviewed. 144
In contrast, 3E1.1 is significantly more specific. 145 It does not speak
in general terms the way 5K1.1 does, but instead lists the criteria for one
particular situation in which a third-level reduction would be
appropriate. 146 As a result, it is not unreasonable to infer that the
U.S.S.C. intended to require prosecutors to move for the reduction
when these criteria have been met.
As the Supreme Court held in Lorillard, having similar aims or
substance is not enough to draw a parallel between the interpretations of
two separate provisions if they are otherwise disparate. 147 It is clear that
3E1.1 and 5K1.1 have significant differences between them—similar to
those differences between ADEA and Title VII in Lorillard 148—and the
addition of a single phrase cannot be enough to bridge that gap.
B.
Legislative History: The Feeney Amendment and Its Lack of
Congressional Intent
Despite their discussion of how adding the phrase “upon motion of
the government” in 2003 affected the interpretation of the provision,
neither side of the debate attempted to divine any congressional intent
from the legislative history surrounding that amendment. This may be
because very little legislative history exists. However, what does exist
undermines the majority’s argument that the amendment signaled
Congress’ desire to expand prosecutorial discretion under 3E1.1, as this
Part will explain. Thus, it is inappropriate to treat this provision as
U.S.S.G., supra note 6, § 5K1.1 (emphasis added).
Id. § 5K1.1(a).
143 United States v. Beatty, 538 F.3d 8, 14–15 (1st Cir. 2008).
144 Id.
145 U.S.S.G., supra note 6, § 3E1.1(b).
146 Id. Note that the provision does not address situations where the prosecution feels that
the defendant has substantially assisted the government in some general way: the text clearly
states “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.” Id. § 3E1.1(b) (emphasis added). This is not to be confused
with 5K1.1, where the provision allows for a motion by the government “stating that the
defendant has provided substantial assistance in the investigation or prosecution of another
person who has committed an offense.” Id. § 5K1.1. This provision is much more general, and
thus it follows that a decision not to move for a level-reduction should meet with much less
scrutiny by the courts.
147 Lorillard v. Pons, 434 U.S. 575, 584–85 (1978).
148 Id.
141
142
2012]
A POWER AND A DUTY
833
though Congress had a specific purpose in mind while voting on the
bill.
The Feeney Amendment was attached as a rider to the immensely
popular Amber Alert Bill just before the House voted on the Bill. 149 As a
result of the last-minute nature of this addition, the House Judiciary
Committee was unable to hold a hearing on the proposed changes, the
U.S.S.C. was unable to contribute any formal input—as it normally
would have—and the Amendment received negligible floor debate. 150
Additionally, because the Amber Alert Bill was a measure to reduce
child sex crimes, some members who actively opposed the Feeney
Amendment voted for the Bill despite their misgivings, as the primary
content of the Bill made it difficult to vote against it. 151
What is more, the amendment was enacted in a highly unorthodox
manner. 152 Up until this point, Congress had never amended the text of
any of the Guidelines, 153 instead leaving the writing and amending to the
U.S.S.C. 154 But the Feeney Amendment bypassed the U.S.S.C. entirely,
without anyone in Congress notifying the agency about it in advance. 155
As a result, members of the U.S.S.C., including the Commissioner,
voiced their dissatisfaction with the amendment proposal process,
particularly their regret that there had not been more debate on the
issue so that they could have been involved in deciding whether to make
such a change. 156
In fact, the Feeney Amendment as originally proposed by
Representative Feeney was written not by Congress or the U.S.S.C., but
by the U.S. Department of Justice. 157 Representative Feeney later
referred to himself as “the ‘messenger’ of the amendment bearing his
name,” which had actually been drafted by two Justice Department
officials, an Associate Deputy Attorney General and a counsel to the
House Judiciary Committee, the latter having also been an Assistant
149 Zlotnick, supra note 39, at 229. The amendment was named after freshman Congressman
Tom Feeney, who introduced it at the urging of the Department of Justice and Jim
Sensenbrenner, the Chairman of the House Committee of the Judiciary at the time.
Id. at 229; CONGRESSMAN JIM SENSENBRENNER, U.S. HOUSE OF REPRESENTATIVES,
http://sensenbrenner.house.gov/biography/ (last visited November 20, 2011).
150 Zlotnick, supra note 39, at 229.
151 Id. For example, Senator Edward M. Kennedy “expressed ‘deep concern’” about the
Feeney Amendment, but voted for the Bill anyway. Id. at 229 n.127.
152 Id. at 229.
153 Id. at 232.
154 Id.
155 Laurie P. Cohen & Gary Fields, Ashcroft Intensifies Campaign Against Judges' Soft
Sentences, WALL ST. J., Aug. 6, 2003, at A1.
156 Id. (“Members of the Sentencing Commission viewed the Feeney amendment as an endrun around the independent agency, which was never notified about it in advance. ‘Clearly,
you’d like to have had a lot more debate,’ says Commissioner Michael O’Neill, a criminal law
professor at George Mason University.”)
157 Zlotnick, supra note 39, at 229.
834
CARDOZO LAW REVIEW
[Vol. 34:813
U.S. Attorney in Virginia. 158 As a result, some commentators have gone
so far as to call the passage of this amendment a “sneak attack on the
independence” of federal judges by the Department of Justice. 159
Some might argue that, given the structure of our legislative
system, the legitimacy of a law does not depend on the method in which
it was passed, whether it was enacted, as here, through a last-minute
rider attached to a popular bill, or after lengthy fact-finding, floor debate
and congressional amendments. But the Supreme Court has recognized
that that may not always be the case. 160 This principle is known as the
elephant-in-mousehole canon, which states that substantive regulatory
changes should not be made by somewhat surreptitiously tacking those
changes to other unrelated legislation—effectively hiding an “elephant
in a mousehole.” 161 It is a reasonable argument that attaching a rider
that could significantly increase certain defendant’s sentences to an
overwhelmingly popular bill was intended to protect children from
sexual violence at the eleventh hour, 162 and is doing just that.
But even if one doesn’t accept this principle, or would not apply it
to this case, awareness of a law’s history can change the way legal
practitioners interpret those laws. It is clear why courts subscribing to
the majority of courts’ interpretation would not want to include this
information in its analysis. It calls into question the majority’s belief that
the addition of the motion requirement can be seen as evincing any
“congressional” intent whatsoever. 163 From the legislative history—or
lack thereof—it seems more likely that members of Congress were
unaware of the pending changes, or at the very least were uninformed
about how such a change would affect our justice system. Thus,
acknowledging such a history would strengthen the minority’s
argument that this amendment indicated no sweeping attempt to
increase prosecutorial discretion in sentencing proceedings. 164
Id. at 229 n.121.
James K. Jenkins, Give Federal District Judges’ Sentencing Discretion Back, ATLANTA J.CONST., June 9, 2003, at 9A.
160 Rebecca M. Kysar, Penalty Default Interpretive Canons, 76 BROOK. L. REV. 953, 962
(2011).
161 See, e.g., Whitman v. Am. Trucking Ass’ns., 531 U.S. 457, 468 (2001) (“[T]extual
commitment must be a clear one. Congress, we have held, does not alter the fundamental
details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might
say, hide elephants in mouseholes.”); see also FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 159–160 (2000); MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231–32
(1994).
162 See Zlotnick, supra note 39, at 229.
163 See supra notes 58–62 and accompanying text.
164 United States v. Divens, 650 F.3d 343, 345–46 (4th Cir. 2011).
158
159
2012]
A POWER AND A DUTY
C.
835
The Rule of Lenity: Push Goes to the Defendant
If, despite the above discussion of the text and legislative history of
3E1.1(b), one still finds the provision ambiguous, the rule of lenity
further supports the interpretation for which this Note argues. 165 The
rule of lenity has been defined as the principle that “penal statutes
should be strictly construed against the government or parties seeking
to enforce statutory penalties and in favor of the persons on whom
penalties are sought to be imposed.” 166 As the Supreme Court has
explained, the rule of lenity arose out of “the instinctive distaste against
men languishing in prison unless the lawmaker has clearly said they
should.” 167 In fact, the rule of lenity operates as an arm of the Due
Process clause, to reinforce the principle of notice in our judicial
system. 168
But notice is not only a concern prior to a conviction. 169 In recent
years, legal commentators have noticed an upswing in federal courts’
use of the rule of lenity not just throughout prosecutions, 170 but also
within the sentencing context. 171 In fact, the Supreme Court has
reaffirmed its support for this principle in both areas as recently as
2008. 172 Applied to sentencing, the rule of lenity serves to compel the
selection of whatever interpretation of the statute results in the lowest
sentence. 173
But before the court can consider lenity, the statute must first be
deemed ambiguous. 174 According to the Supreme Court, if ambiguity
persists, even after considering “the language and structure, legislative
history, and motivating policies’ of the statute,” only then is the court
warranted in applying the rule. 175 Considering the lack of legislative
165 While some may argue that canons of construction have largely fallen out of favor over
the last century, Phillip M. Spector, The Sentencing Rule of Lenity, 33 U. TOL. L. REV. 511, 511
(2002), the rule of lenity remains alive and well in federal courts. Elkan Abramowitz & Barry A.
Bohrer, The Rule of Lenity in Sentencing, 239 N.Y. L.J., no. 42, Mar. 4, 2008, at 3.
166 SINGER, supra note 117.
167 United States v. Bass, 404 U.S. 336, 348 (1971). Today, the rule of lenity is seen as having
three purposes: 1) to satisfy due process requirements by providing defendants with adequate
notice; 2) to support the principle of legality requiring that criminal penalties be imposed only
pursuant to established law; and 3) to uphold the separation of powers constraint that the
legislature, not the judiciary, defines criminal conduct. Abramowitz & Bohrer, supra note 165.
168 Abramowitz & Bohrer, supra note 165; see also John F. Manning, Clear Statement Rules
and the Constitution, 110 COLUM. L. REV. 399, 406 n.26 (2010).
169 Abramowitz & Bohrer, supra note 165.
170 Id.
171 Id.
172 See, e.g., Burgess v. U.S., 553 U.S. 124, 125 (2008); Muscarello v. United States, 524 U.S.
125, 138–39 (1998); United States v. R.L.C., 503 U.S. 291, 306 (1992) (opinion of Souter, J.);
McNally v. United States, 483 U.S. 350, 375 (1987).
173 R.L.C., 503 U.S. at 305–06 (opinion of Souter, J.).
174 Burgess, 553 U.S. at 125 (“The touchstone of the rule of lenity is statutory ambiguity.”
(quoting Bifulco v. United States, 447 U.S. 381, 387 (1980))).
175 In previous cases, the Court has explained that it has “always reserved lenity for those
836
CARDOZO LAW REVIEW
[Vol. 34:813
history evincing any intent behind the addition of the phrase “upon
motion of the government,” as well as the fact that the federal circuit
courts have come to vastly different conclusions regarding the text and
structure of 3E1.1(b), the Guideline’s ambiguity seems clear. Therefore,
applying the rule of lenity is appropriate under the standard set forth by
the Supreme Court. 176
Given that in the sentencing context this rule leads to the selection
of the interpretation that results in the shortest sentence, 177 lenity would
support the interpretation that where a defendant has met all of the
requirements of 3E1.1(a) and (b), he is entitled to a third level
reduction.
D.
Context Matters: Policy and Efficiency Concerns Affecting
§ 3E1.1(b)
None of the courts reviewing the proper interpretation of 3E1.1
addressed policy or efficiency concerns in their analyses. This is a
significant shortcoming in attempting a complete analysis of how to
interpret a Guideline. 178 Because the purpose of having the Guidelines
revolves around such policy concerns as uniformity and fairness in
sentencing, those concerns go to the heart of the issue. This Section,
therefore, will lay out several issues that further support the
interpretation of 3E1.1(b) proffered by this Note.
1.
Broader Judicial Review Places a Necessary Check on Prosecutors’
Already Significant Power in the Sentencing
Process and Fosters Uniformity
As Supreme Court Justice Robert H. Jackson, a former Attorney
General, wrote in 1940, “[t]he prosecutor has more control over life,
liberty, and reputation than any other person in America.” 179 And
though Booker restored some sentencing responsibility to federal judges,
one legal scholar noted that “federal prosecutors today still wield
situations in which a reasonable doubt persists about a statute’s intended scope even after resort
to ‘the language and structure, legislative history, and motivating policies’ of the statute.”
R.L.C., 503 U.S. at 305–06 (opinion of Souter, J.) (quoting Moskal v. United States, 498 U.S.
103, 108 (1990)).
176 See supra, note 175 and accompanying text.
177 See supra, note 173 and accompanying text.
178 Perhaps the Second and Fourth Circuits left such arguments out because they were wary
of appearing as though their opinions were based in judicial activism rather than a clear
understanding of the text at hand. While that is a legitimate concern, one also must not ignore
the context in which a provision is carried out, as it can shed great light on the intended
meaning behind the provision itself.
179 Robert H. Jackson, The Federal Prosecutor, 31 J. CRIM. L. & CRIMINOLOGY 3, 3 (1940).
2012]
A POWER AND A DUTY
837
tremendous discretion . . . . Though they may not have the same ability
post-Booker to leverage mandatory Sentencing Guidelines, prosecutors
retain the power to guide investigations, accept or decline cases, draft
charges, press for convictions through plea negotiation, and seek
specific sentences.” 180 Indeed, it has been argued that prosecutorial
discretion today, even post-Booker, is greater than it was in the preGuidelines era. 181 Given U.S. District Judge William Young’s recent
comments regarding prosecutorial power, it is clear that this perspective
is not unique. 182
What is more, numerous former prosecutors have voiced their
concerns about allowing such leeway without a meaningful check by the
judiciary. For example, an Assistant U.S. Attorney (AUSA) for the
Southern District of New York expressed unease with unfettered
prosecutorial discretion within the sentencing process in 1998, several
years after the Guidelines had re-allocated much of the power
previously wielded by judges to prosecutors. 183 As she wrote, “[o]ur
concern . . . is that the exercise of broad prosecutorial authority over
sentencing within a system that severely limits the sentencing discretion
of federal judges means that the power of prosecutors is not subject to
the traditional checks and balances that help prevent abuse of that
power.” 184
In 2004, another former federal prosecutor expounded on this
concern, reflecting on his experience as a young AUSA in Washington
D.C. 185 While he and his fellow prosecutors tried to pursue justice above
all else, the realities of both their humanity and the criminal justice
system meant that often the judge’s position as an impartial arbiter was
the only way to ensure a truly just result. 186
In a system that gives prosecutors such overwhelming power
throughout the course of a criminal case, such that judges and former
prosecutors have begun to voice their concerns about it, there is little
reason to read any part of the Guidelines to grant more discretion—and
thus less judicial oversight—than is absolutely required by the language
Osler, supra note 1, at 626.
Bay, supra note 24 at 551. Bay writes that this increase in prosecutorial power since the
pre-Guidelines era occurred as a result of mandatory minimum laws and judges’ acclimation to
the Guidelines, “which serve to protect or enhance prosecutorial power.” Id. For a more
detailed description of the extent of prosecutors’ discretion, see Bay, supra note 24 at 551–56.
182 See United States v. Gurley, 860 F. Supp. 2d 95, 117 (D. Mass. May 2012).
183 KATE STITH & JOSÉ A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE
FEDERAL COURTS 1, 141 (1998).
184 Id.
185 Zlotnick, supra note 39 at 213–15.
186 Id. at 214 (“While we were well-intentioned civil servants, we were also generally young
and always human. Some prosecutors were also more partisan in orientation. Occasionally,
when a crime particularly offended us, or less commendably, defense counsel made our lives
difficult, our plea offer or sentencing recommendation might be harsher than the courthouse
average. Frequently, in those instances, it was the experience and objectivity of the presiding
judge that ensured that some rough equivalent of equal justice was done.”).
180
181
838
CARDOZO LAW REVIEW
[Vol. 34:813
of that Guideline. Allowing judges a more influential role in reviewing
prosecutor’s decisions regarding downward departures under 3E1.1 is
good policy.
It is even better policy, however, when one considers that the
Guidelines exist in part to encourage uniformity in sentencing. 187
Greater prosecutorial discretion in the application of 3E1.1(b) means a
greater chance of disparate results based on the whims of any given
prosecutor. But if the Guideline is interpreted as this Note suggests,
wherever a defendant pleads guilty in time to help the prosecution avoid
preparing for trial, he will have the same result on that point of his
sentence level calculation, regardless of the prosecutor or judge on the
case.
2.
The U.S.S.C. Wants to Incentivize Plea Bargains,
Not Discourage Them
Based on the text of 3E1.1(b), it is a fair interpretation that the
U.S.S.C. wrote this Guideline to give defendants greater incentive to
take plea agreements. 188 The provision indicates that the third-level
reduction is given in exchange for the defendant’s timely guilty plea,
where that plea allows the government to avoid preparing for trial and
to re-allocate its resources efficiently. 189 Thus, if the policy concern
behind the Guideline is to encourage defendants to take plea bargains,
we should read 3E1.1 in whatever way is most likely to encourage such
agreements to be made.
The certainty of one’s sentencing range is of particular concern for
a defendant who is deciding whether to take a plea bargain or take his
chances at trial. 190 It is true that after Booker, no defendant can ever be
certain of his potential sentence—whether through a plea agreement or
a full criminal trial—because the judge always reserves the right to
depart from the Guidelines. 191 However, even after Booker, judges
overwhelmingly rule within the range suggested by the Guidelines, so it
is usually safe to bet that one’s sentence will be determined by his
Guideline level. 192
Because downward departures such as those made available under
3E1.1 are one of a defendant’s only options to obtain a reduction in
See supra note 14 and accompanying text.
U.S.S.G., supra note 6, § 3E1.1(b).
189 Id.
190 Brown & Bunnell, supra note 24, at 1086.
191 See 18 U.S.C. § 3553 (2006); Adelman & Dietrich, supra note 21.
192 Brown & Bunnel, supra note 24, at 1088 (“[P]ost-Booker, every judge in the federal
district court in D.C. has sentenced within the Guidelines most of the time, and when judges
deviate from the Guidelines, they know that the reasonableness of the sentence on appeal will
likely be assessed, in large part, by reference to the applicable Guidelines range.”); see also Bay,
supra note 24, at 570–72.
187
188
2012]
A POWER AND A DUTY
839
sentence, it follows that most defendants would consider the likelihood
that those downward departures could apply to their case when deciding
whether to agree to a plea bargain. Thus, a defendant’s belief that
pleading would result in favorable treatment under 3E1.1(b) would give
him a greater incentive to agree to plead guilty in a timely manner, thus
achieving the goal the U.S.S.C. intended to accomplish in setting that
Guideline.
A defendant can be sure that if he accepts responsibility, has a
sentence level of sixteen or greater, and has timely notified the
authorities of his intent to plead guilty such that they were able to avoid
preparing for trial, he will receive a one-level reduction. This reading is
not only more straightforward, but provides a greater incentive for
defendants to agree to plea bargains in a timely manner—which was the
goal of 3E1.1 from the start.
If, however, courts read 3E1.1 to allow prosecutors to withhold a
motion under 3E1.1(b) under any circumstances, so long as their refusal
not to file was not unconstitutional and was rationally related to any
governmental goal, how will that defendant know whether he is likely to
receive that reward? And if he cannot be sure that he will be rewarded
for his timely entry of a guilty plea, his incentive to plead guilty in a
timely manner would decrease significantly.
III. REMAINING CRITICISMS AND COUNTERARGUMENTS
Most of the counterarguments to the argument set forth in this
Note have been addressed above. However, as is always the case,
potential criticisms that have so far been left unexplored must be
addressed. This Part will discuss—and discharge—additional criticisms
and counterarguments to this Note’s argument.
A.
Booker Allows Judges to Deviate from the Guidelines, Acting as an
Escape Hatch
Some have argued that Booker provides a convenient escape hatch
for judges who disagree with a prosecutor’s decision not to move for the
3E1.1(b) reduction. 193 How this actually supports their interpretation of
the provision, however, remains to be seen. But beyond this lack of
clarity, such an argument clearly runs counter to post-Booker sentencing
procedure, as well as to the purpose behind the Guidelines.
193 See, e.g., United States v. DeBerry, 576 F.3d 708, 711 (7th Cir. 2009) (Posner, J.) (“[W]ith
the guidelines now advisory rather than mandatory, the refusal of the government to file such a
limitation is not the end of the line for the defendant. Having broad discretion to deviate from
the guidelines in sentencing a defendant, the judge can if he wants ignore the absence of a
motion and use the criteria in subsection (b) . . . to lower the defendant’s sentence.”).
840
CARDOZO LAW REVIEW
[Vol. 34:813
As Part I discussed, federal judges may not simply disregard the
Guidelines whenever they choose without explaining their reasons. 194
They must first calculate the sentence as dictated by the Guidelines and
then decide whether a sentence within that range would be
appropriate. 195 What is more, their decision to depart from the
Guidelines may be reviewed for reasonableness on appeal, with much of
that reasonableness standard based on the Guidelines. 196 And because
many of these judges were appointed after the Guidelines were installed,
they have grown accustomed to using the Guidelines in their sentencing
decisions. 197 As a result, it is rare for judges to scrap the Guidelines and
give a sentence outside the given range. 198 So while the Guidelines are
not mandatory, they are far from irrelevant. The proper calculation of a
defendant’s sentencing level is therefore crucial to a fair result.
Second, the purpose behind the Guidelines is to standardize
sentencing so that it depends less on the whims or predilections of any
one trial judge. 199 The majority’s argument that Booker provides a
proper recourse for a judge who believes the defendant should have
received the third-level reduction undermines this goal, and seems to
miss the point behind post-Booker sentencing procedures. We require
judges to first calculate the sentence and then explain any deviation
because doing so enables us to standardize sentencing across
jurisdictions. Thus, given that there is no legitimate authority requiring
reading 3E1.1 otherwise, it would make sense to choose an
interpretation that allows for judges across the board to substantively
review a prosecutor’s decision not to move for a third-level reduction,
rather than only allowing them to do so on an ad hoc basis.
B.
The Feeney Amendment’s Legislative History Can Be Interpreted to
Demonstrate Congress’ Intent to Give Prosecutors More,
Not Less, Discretion
There is an argument that the intent of those behind the drafting of
the Feeney Amendment should be considered in determining the true
meaning of the amendment. The Supreme Court has used evidence of
the intent of such non-legislative drafters before, 200 particularly when it
appears that members of Congress reviewed or endorsed the opinions of
See Adelman & Dietrich, supra note 21.
Id.
196 Brown & Bunnell, supra note 24, at 1088.
197 Bay, supra note 24, at 564.
198 Id.
199 See An Overview of the United States Sentencing Commission, supra note 14, at 1.
200 See, e.g., Kosak v. United States, 465 U.S. 848, 856–57 (1984) (relying in part on a report
written by a former special assistant in the Attorney General’s office who wrote a relevant
portion of the Federal Tort Claims Act, even though there was no evidence the report was
relied upon by Congress).
194
195
2012]
A POWER AND A DUTY
841
those drafters when deliberating. 201 As such, critics could argue that the
perspective of the Department of Justice (DOJ) officials who drafted the
language of the Feeney Amendment is relevant to this debate. 202 Thus,
they could argue, because the DOJ evidently intended to increase
prosecutorial discretion, it is safe to assume Congress approved of that
goal. 203
What this argument leaves out is that the Supreme Court’s use of
evidence of non-legislative drafter’s intent has been somewhat reserved
thus far. The Court has indicated that this kind of material should not
be too heavily relied upon without proof that Congress considered it. 204
Given the hurried nature in which the Feeney Amendment was attached
to the Amber Alert legislation, 205 without proof that such materials were
relied upon—or even submitted along with the text of the amendment—
the case for putting too much stake in the drafters’ intent is quite weak.
Additionally, it has been argued that regardless of whether there is
proof that the material was considered by members of Congress, using
such materials that evince non-legislators’ intent is “unwise [and]
unreliable.” 206 Commentators have argued that these reports are often
unavailable, ambiguous in their own right, or include statements
intentionally made to ensure that a third party’s perspective enters the
debate. 207 Further, the Court has not been entirely consistent in deciding
when to include the intent of such non-legislative drafters in its analysis
and when not to, 208 which causes several problems. 209 Such
inconsistency undermines predictability regarding what kinds of
legislative history the courts will consider, thus making it more difficult
for legislators to clarify their intent in the future. 210 Weighing these
arguments against the already low probability that members of Congress
truly weighed the drafters’ intent in their deliberations, the argument
201 See, e.g., Gustafson v. Alloyd Co., 513 U.S. 561, 579–80 (1995) (relying on a statement by
a non-legislator expert, submitted as part of legislative deliberations, in interpreting an
ambiguous portion of the Securities Act of 1933).
202 Zlotnick, supra note 39, at 229 n.121.
203 Id.
204 See, e.g., Kosak, 465 U.S. at 857 n.13 (“[B]ecause the report was never introduced into the
public record, the ideas expressed therein should not be given great weight in determining the
intent of the legislature.”); see also id. at 863 (Stevens, J., dissenting) (“The intent of a lobbyist—
no matter how public spirited he may have been—should not be attributed to the Congress
without positive evidence that elected legislators were aware of and shared the lobbyist’s
intent.”).
205 See supra notes 152–155 and accompanying text.
206 Alison Giles, The Value of Nonlegislators’ Contribution to Legislative History, 79 GEO. L.J.
359 (1990).
207 Id. at 359 n.1.
208 Compare Kosak, 465 U.S. at 856–57 (considering the intent of a non-legislative drafter
whose report had been submitted as part of legislative deliberations), with Sheridan v. United
States, 487 U.S. 392, 410 (1988) (refusing to consider the testimony of a non-legislative drafter
who testified in floor hearings).
209 Giles, supra note 206, at 359.
210 Id. at 360.
842
CARDOZO LAW REVIEW
[Vol. 34:813
that the drafters’ intent should enter the analysis is not a strong one.
CONCLUSION
While both sides of this debate have legitimate arguments,
ultimately the text of the provision, particularly when combining its
legislative history and the relevant policy concerns, indicate that the
proper interpretation of 3E1.1(b) requires the government to move for
the reduction any time a defendant has met all of the eligibility
requirements. Thus, where a defendant has timely notified the
prosecution of his intent to plead guilty, such that the government may
avoid preparing for trial, saving both the prosecutors and the courts
time and resources, he is entitled to the third-level reduction. Section
3E1.1(b) does not permit the government to withhold the additional
point where the defendant has refused to assist the government in some
other way, such as by waiving his appellate rights. However, all is not
lost for prosecutors. They retain discretion in determining whether the
defendant’s actions have enabled the government to avoid preparing for
trial and re-allocate their resources, which, given their already vast
influence in the sentencing process, should be more than sufficient.