U.S. v. Divens

• Decision Date: 05 July 2011
• Docket Number: No. 09–4967.,09–4967.
• Citation: 650 F.3d 343
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Lashawn Dwayne DIVENS, a/k/a Lashawn Duwayne Divens, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

650 F.3d 343

UNITED STATES of America, Plaintiff–Appellee,

v.Lashawn Dwayne DIVENS, a/k/a Lashawn Duwayne Divens, Defendant–Appellant.

No. 09–4967.

United States Court of Appeals, Fourth Circuit.

Argued: March 25, 2011.Decided: July 5, 2011.

ARGUED: Jonathan D. Byrne, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. Monica Lynn Dillon, Office of the United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public Defender, Lex A. Coleman, Assistant Federal Public Defender, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Charleston, West Virginia, for Appellee.

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge GREGORY and Judge SHEDD joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Lashawn Dwayne Divens pled guilty to possession with intent to distribute cocaine. Divens signed an acceptance of responsibility statement but declined to sign a plea agreement waiving certain rights to appellate review and collateral attack. Solely because Divens would not waive these rights, the Government refused to move for an additional one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b). Divens appeals, challenging the district court's failure to compel the Government to move for the § 3E1.1(b) reduction. For the reasons that follow, we vacate Divens's sentence and remand for further proceedings consistent with this opinion.

I.

On May 6, 2009, a federal grand jury charged Divens with one count of possession with intent to distribute crack cocaine. On July 9, 2009, the Government offered Divens a plea agreement barring him from appealing any sentence that did not exceed the Guidelines range and from mounting any collateral attack not based on ineffective assistance of counsel. Divens declined to sign that agreement, but he filed a motion the very next day notifying the district court of his intention to plead guilty. He also signed an “acceptance of responsibility statement” admitting his guilt of the charged crime and expressing remorse.

On July 21, 2009, Divens pled guilty without benefit of a plea agreement. The probation officer prepared a presentence report explaining that Divens had timely notified the Government of his intent to plead guilty and recommending the award of a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a). The probation officer noted, however, that because Divens had rejected the Government's plea agreement, the Government would likely not move for an additional one-level reduction under § 3E1.1(b). Accordingly, the probation officer suggested a Guidelines calculation that did not include the additional one-level reduction. Divens objected to this calculation, arguing that he was entitled to the additional one-level reduction. In doing so, he acknowledged that the district court could award the reduction only on the Government's motion; he argued, however, that his unwillingness to execute the appellate waiver did not justify the Government's refusal to file such a motion.

At the sentencing hearing, the Government contended that its refusal to move for the additional reduction was “rationally related to the purposes of the guidelines” because it allowed the Government to avoid defense of “a complete appeal” and “allocate its resources to other matters.” The district court overruled Divens's objection, concluding that the decision as to whether to move for an additional one-level reduction lay “completely in the discretion of the Government.” The court then adopted the probation officer's suggested Guidelines range of 41 to 51 months' imprisonment, departed downward, and imposed a sentence of 36 months' imprisonment. Divens noted a timely appeal.

II.

Section 3E1.1(a) of the Guidelines provides for a two-level decrease in a defendant's offense level if he “clearly demonstrates acceptance of responsibility for his offense.” The very next subsection provides that:

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. § 3E1.1(b). The district court awarded Divens the two-level reduction under § 3E1.1(a), but because the Government refused to file a motion under § 3E1.1(b), the court did not award Divens the additional one-level reduction provided by that subsection. The Government makes no claim that Divens does not qualify for a decrease under subsection (a) or that his offense level is less than 16. Nor does the Government contend that Divens failed to “timely” provide notice of his intention to plead guilty. Thus, the Government's sole contention is that Divens's failure to sign the appellate waiver justifies the Government's refusal to move for the additional one-level reduction under § 3E1.1(b).

A.

Although § 3E1.1(b) provides for an additional one-level reduction “upon motion of the government,” the Government itself recognizes that its discretion to act is limited. See Appellee's Br. at 8. Relying on Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992), the Government acknowledges that it may not exercise its discretion “arbitrarily or irrationally or base[d] ... on an unconstitutional motive.” Appellee's Br. at 8.

In Wade, the Supreme Court interpreted a different Guidelines provision, § 5K1.1, that allows for a downward departure “[u]pon motion of the government” stating that the defendant has provided substantial assistance. 504 U.S. at 185, 112 S.Ct. 1840. Although the Wade Court held that § 5K1.1 granted the Government a “power, not a duty, to file a motion,” it also recognized that district courts could order the Government to file a motion if the “refusal to move was not rationally related to any legitimate Government end.” Id. at 185–86, 112 S.Ct. 1840. We have interpreted Wade as permitting the Government to refuse to file a substantial assistance motion under § 5K1.1 so long as it provides any legitimate reason, even one unrelated to the defendant's “substantial assistance.” See United States v. Butler, 272 F.3d 683, 687 (4th Cir.2001).

If the standard developed in Wade and Butler governing § 5K1.1 reductions were to control cases like this one, involving § 3E1.1(b) reductions, Divens could not prevail. See United States v. Wiggins, 905 F.2d 51, 53–54 (4th Cir.1990) (recognizing legitimacy of appellate waivers). But we have left this question open, see United States v. Chase, 466 F.3d 310, 314 n. 2 (4th Cir.2006), and the Government never explicitly argues that the standard developed in Wade and Butler governs § 3E1.1(b) reductions. Examination of the Guidelines commentary explains why—the commentary renders such an argument untenable.

Of course, § 3E1.1(b), like § 5K1.1, conditions any reduction on a “motion of the government.” In its commentary, however, the Sentencing Commission clarified that although the Government's motion is necessary, the decision to file such a motion under § 3E1.1(b) involves far less expansive governmental discretion than under § 5K1.1. Specifically, the application commentary to § 3E1.1 (but not to § 5K1.1) explains 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).” Id. cmt. 6 (emphasis added). The background commentary to § 3E1.1 (again there is no analogue in § 5K1.1) adds 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.” (emphasis added). Both of these comments indicate that the Government does not possess the wide discretion afforded by § 5K1.1 in deciding whether to move for the additional one-level reduction provided in § 3E1.1(b).¹

This is not to say that the Government enjoys no discretion. To the contrary, Congress expressly clarified that “[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, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing.” Id. cmt. 6 (added by Congress in PROTECT Act, Pub.L. No. 108–21, § 401(g)). This sentence, the sixth in comment 6, makes plain that in deciding whether to file this “formal motion,” the Government retains discretion to determine whether the defendant's assistance has relieved it of preparing for trial. But the second sentence in the same comment, as well as the background commentary that immediately follows, clarify that once the Government has exercised that discretion and determined that a defendant has in fact alleviated the burden of trial preparation, the defendant merits an additional reduction. Thus, both of those comments speak in mandatory terms. The second sentence declares that § 3E1.1(b) “provides” the reduction “for a defendant” who meets the specified criteria. The background commentary emphasizes that “[s]uch a defendant” (one who meets the specified criteria) “merit[s]” the reduction. Accordingly, once the Government has determined that a defendant has “tak[en] the steps specified in subsection (b),” he becomes entitled to the reduction.

The lack of any...