United States v. Mount

• Citation: 675 F.3d 1052
• Decision Date: 12 April 2012
• Docket Number: No. 11–2616.,11–2616.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jaymie T. MOUNT, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

675 F.3d 1052

UNITED STATES of America, Plaintiff–Appellee,

v.Jaymie T. MOUNT, Defendant–Appellant.

No. 11–2616.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 29, 2012.Decided April 12, 2012.

Gayle L. Helart (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.

Jonathan E. Hawley, Federal Public Defender, Andrew J. McGowan (argued), Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before BAUER, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Jaymie Mount disappeared while on release awaiting trial on a charge of possession of a gun by a felon, in violation of 18 U.S.C. § 922(g)(1). He was captured nearly three months later and pleaded guilty two weeks before his trial was set to begin. At sentencing, the district court granted him a two-level reduction in his offense level under the U.S. Sentencing Guidelines for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). In keeping with the plea agreement, the government moved for Mount to receive an additional one-level reduction, because it was satisfied that he had given prosecutors timely notice of his intention to plead guilty. See id. § 3E1.1(b). The district court denied that motion, however, citing Mount's flight as its reason. Mount appeals, arguing that the additional one-level reduction is mandatory once the government determines that the criteria spelled out in § 3E1.1(b) are satisfied and it makes the necessary motion. We conclude that Mount is correct, and we thus remand for resentencing.

I

In mid–2010 the police received reports that Mount, who had a felony conviction on his record, had discharged firearms on several occasions and had been seen carrying an AK–47 assault weapon. They decided to investigate and obtained a search warrant for his home. The search turned up eight firearms, which led to Mount's being charged by complaint in federal court with the offense of possession of a gun by a felon. See 18 U.S.C. § 922(g)(1). He was then released on his own recognizance on the condition that he stay in a residential facility operated by Volunteers of America. Mount complied for a time, but five months later, after electing to waive indictment and notifying the district court that he would plead guilty to an information, Mount left the facility (ostensibly to visit his grandmother) and did not return. A warrant was issued for his arrest.

Nearly three months later, the Marshals Service tracked him down. His release was revoked, and his retained lawyers were permitted to withdraw based on a breakdown in communication with Mount. The district court appointed substitute counsel and set trial for June 20, 2011. At a status conference in May, the parties told the judge that they were in the process of negotiating a plea agreement. At that point, the Assistant U.S. Attorney was threatening to add a charge for failure to appear, but that never happened. Instead, just as he had promised before he became a fugitive, Mount agreed on June 6 to plead guilty to the pending information charging him with the § 922(g)(1) violation. This was two days before the final pretrial conference was to occur, and two weeks before the scheduled trial date. The plea agreement represents that Mount had “timely notified the government of his intention to enter a plea of guilty, thereby permitting the government and the court to allocate their resources efficiently.” On that basis the government promised to move for an additional one-level reduction in Mount's offense level under U.S.S.G. § 3E1.1(b) if the district court decided that he was entitled to the two-level reduction for acceptance of responsibility provided by § 3E1.1(a).

At sentencing, the district court did award Mount the two-level reduction, and so, in keeping with the plea agreement, the AUSA moved for the third level under § 3E1.1(b). When pressed, however, the AUSA hedged a bit when explaining the reason for doing so:

THE COURT: And what is the basis for that motion?

[AUSA]: Your Honor, we could have filed another felony in the case, and that was one of our points of negotiation with him, which I think for a time, he didn't believe we could file based on a walkaway from the [Volunteers of America residential facility]. But case law showed that we could, and that would have—that would have made an additional five-year penalty for him to be at least facing. I don't know what would have happened ultimately, but he did agree to go ahead and continue through with the resolution that had been started really by his prior lawyer; and so, saving the Government some resources in having to call [Volunteers of America] people and having to do an additional and probably separate trial because probably that wouldn't have come in in a felon in possession trial.

THE COURT: Okay. So the trial you were avoiding preparing for was on a different case, not this case.

[AUSA]: A potential different case.

After this exchange, the court rejected the additional reduction under § 3E1.1(b) with this explanation:

[T]he court is going to deny the motion for an additional level decrease, because the sentencing guideline calls for the efficient allocation of resources. And when Mr. Mount walked away, he is getting a break with the charge not being filed. And the Government has agreed to that as part of the plea. But also, having to use the United States marshal service to apprehend him is not an efficient use of the Government's resources.

Without the additional reduction in offense level, the court concluded that Mount's offense level was 26 and his criminal history category was IV. This yielded an advisory guideline range of 92 to 115 months. The court chose a sentence of 100 months, explaining that Mount's flight warranted a term long enough to promote his respect for the law and that his § 922(g)(1) offense was serious and required protection of the public.

II

On appeal, Mount argues that the court erred when it took the position that it had the power to refuse to reduce his offense level under § 3E1.1(b). In his view, the additional adjustment is mandatory if the government moves for it and the other requirements of the provision are met. The government counters with the well-known fact that the guidelines are advisory. This means, it contends, that the court may deny a motion under § 3E1.1(b) for any of a number of reasons. Recognizing that Mount's guideline range would have been 84 to 105 months had the extra level been awarded, the government does not argue that any possible error is harmless. Nor does it argue that review should be for plain error since Mount did not specifically object to the § 3E1.1(b) ruling.

Our starting point must be with the text of the guideline. United States v. Arnaout, 431 F.3d 994, 1001 (7th Cir.2005). Since the 2003 amendment to § 3E1.1, the text has read 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.

The question is whether, in cases where the court has determined that (1) the defendant qualifies for a decrease under subsection (a), (2) the defendant's offense level is greater than 16 before the operation of subsection (a), and (3) the government makes the motion described in subsection (b), the additional one-level downward adjustment remains discretionary with the court, or if—strictly as a matter of properly computing the advisory guideline range—it is mandatory. Obviously, once the advisory guideline range is determined, the court retains discretion to apply the factors outlined in 18 U.S.C. § 3553(a) to choose a proper sentence. But it must begin, as the Supreme Court has reminded us, with the right reference point from the guidelines. See, e.g., Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

We have not had occasion squarely to address this question in the past. The government argues that our decision in United States v. Anderson, 604 F.3d 997 (7th Cir.2010), implicitly resolves the issue in its favor, but we see important distinctions between the present case and Anderson. Critically, in Anderson the government refused to move for the additional reduction, despite a promise to do so in the plea agreement. In reviewing for plain error the defendant's claim that the agreement had been breached, we commented that affirming the sentence would not create a manifest miscarriage of justice because the sentencing judge “would have exercised his discretion to avoid awarding Anderson the benefits of § 3E1.1(b).” Id. at 998, 1002–03. That is a thin reed, we think, for the government's position. The defendant had failed to object when the prosecutor did not move for the third acceptance point. Id. at 1000. In discussing whether that omission might have been strategic, which would have implied that the issue was not just forfeited, but actually waived, the court speculated that defense counsel might have guessed that an objection “would not have advanced Anderson's cause by much” because he had waited until the fourth day of trial to accept a two-week-old plea proposal and “may have anticipated that the district court would also reach this reasonable conclusion.” Id. at 1002.

The government reads that passage as authority for the proposition that whether to award the additional one level is up to ...