United States v. Davis

• Decision Date: 09 April 2013
• Docket Number: No. 12–3552.,12–3552.
• Citation: 714 F.3d 474
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tristan DAVIS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

714 F.3d 474

UNITED STATES of America, Plaintiff–Appellee,

v.Tristan DAVIS, Defendant–Appellant.

No. 12–3552.

United States Court of Appeals, Seventh Circuit.

Submitted March 15, 2013.

Decided April 9, 2013.

David E. Hollar, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee.

Ashwin Cattamanchi, Assistant Federal Public Defender, Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant–Appellant.

Before EASTERBROOK, Chief Judge, and MANION and ROVNER, Circuit Judges.

PER CURIAM.

Tristan Davis repeatedly gave false addresses when purchasing guns, six of which were later recovered from persons who could not lawfully possess them. Davis contends that the guns were stolen from him. He pleaded guilty to two counts of lying to gun dealers. 18 U.S.C. §§ 922(a)(6), 924(a)(1)(A). Other charges were dismissed as part of a plea bargain.

Davis was sentenced to 18 months' imprisonment. His offense level, and perhaps the sentence too, would have been lower had the district judge given him a three-level reduction for accepting responsibility by pleading guilty. It deducted only two levels, because the prosecutor declined to move for the subtraction of a third level under U.S.S.G. § 3E1.1(b). The prosecutor wanted Davis to waive his right to appeal, and his refusal to do that led the prosecutor to withhold the motion. Davis contends that a motion from the prosecutor is mandatory whenever the defendant pleads guilty early enough to spare the prosecutor the burden of trial preparation, but he acknowledges that we rejected that contention in United States v. Deberry, 576 F.3d 708 (7th Cir.2009), which holds that § 3E1.1(b) confers an entitlement on the prosecutor, not on the defendant. In this respect § 3E1.1(b) functions like the prosecutor's entitlement to move for a below-minimum sentence. See U.S.S.G. § 5K1.1. The prosecutor may withhold such a motion for any reason that does not violate the Constitution. Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). Deberry concluded that § 3E1.1(b) should be understood the same way, with the same limit.

Two courts of appeals have sided with Davis's contention that a court may direct the prosecutor to file a motion under § 3E1.1(b) even if the prosecutor's reason for withholding that motion does not violate the Constitution. United States v. Lee, 653 F.3d 170, 174–75 (2d Cir.2011); United States v. Divens, 650 F.3d 343, 346–47 (4th Cir.2011). Four courts of appeals have reached the same conclusion as Deberry.United States v. Collins, 683 F.3d 697 (6th Cir.2012); United States v. Johnson, 581 F.3d 994, 1003 (9th Cir.2009); United States v. Beatty, 538 F.3d 8, 16–17 (1st Cir.2008); United States v. Newson, 515 F.3d 374, 378–79 (5th Cir.2008). This circuit could not eliminate the conflict by changing sides, so stare decisis supports standing pat. Resolution of this conflict is the province of the Supreme Court or the Sentencing Commission. See Buchmeier v. United States, 581 F.3d 561, 566 (7th Cir.2009) (en banc).

Affirmed

ROVNER, Circuit Judge, concurring.

As the court correctly observes, and as Davis himself recognizes, the outcome of this appeal is controlled by our decision in United States v. Deberry, 576 F.3d 708 (7th Cir.2009). I accept and respect Deberry as the law of this circuit. I write separately, however, to explain why I do not believe that section 3E1.1(b) of the Guidelines permits the government to insist that a defendant waive his appellate rights before it will ask the court to grant him an additional one-level decrease in his offense level for acceptance of responsibility.

For a defendant who waives his right to a trial and pleads guilty, the right to an appeal remains important primarily as a means to address any errors that may occur at his sentencing. (I am setting aside the much smaller set of cases in which a defendant may have a legitimate ground on which to challenge the validity of his guilty plea.) Obviously, a defendant and his counsel cannot know whether such a sentencing error has occurred until he is actually sentenced. Yet, we as appellate judges know that such errors occur with regularity. Sentencing judges must apply a relatively complex set of guidelines to the unique facts surrounding a defendant's criminal conduct and history; and following that, they must independently determine, in light of broader statutory criteria, see18 U.S.C. § 3553(a), what they believe to be a reasonable sentence. In doing so, judges may misapprehend the evidence, look to the wrong guideline, misconstrue the relevant guideline, incorrectly apply the guideline to the facts, fail to honor a defendant's procedural rights in some way, fail to recognize the extent of their discretion, or impose a sentence that is substantively unreasonable. We routinely vacate sentences and remand for resentencing to correct these and other kinds of sentencing errors. These errors are rarely, if ever, attributable to the defendant; the responsibility typically lies with the court, sometimes with the knowing or unknowing complicity of the attorneys. Correction of such errors serves both the defendant's right to due process and a public interest in fair and accurate sentencing. In sum, reserving the defendant's right to raise sentencing errors on appeal has absolutely nothing to do with his acceptance of responsibility for his crime. And, conversely, insisting that he waive his right to appeal before he may receive the maximum credit under the Guidelines for accepting responsibility serves none of the interests identified in section 3E1.1.

When section 3E1.1(b) was amended by section 401(g) of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, P.L. 108–21, 117 Stat. 650, 671–72 (Apr. 30, 2003) (the “PROTECT Act”), the authority to assess a defendant's qualification for the extra reduction in his offense level for acceptance of responsibility was transferred from the sentencing judge to the government. And what previously had been a mandatory reduction, provided the defendant met the criteria for it, became a reduction dependent on the government's unilateral decision to request it of the court. Deberry, 576 F.3d at 710. In Deberry, we likened the breadth of the government's discretion in deciding whether to solicit the reduction to its wide latitude in requesting a sentence reduction based on a defendant's substantial assistance in the investigation or prosecution of another person, see18 U.S.C. § 3553(e); Fed.R.Crim.P. 35(b); U.S.S.G. § 5K1.1, and in deciding whether and how to charge the defendant in the first instance. 576 F.3d at 710–11.

Yet, the government's discretion with respect to the extra reduction for acceptance of responsibility is not unlimited. As we acknowledged in Deberry, the government may not refuse to recommend the reduction for an invidious reason or for a reason “unrelated to a legitimate governmental objective.” 576 F.3d at 711. Those were the sole limitations that the Supreme Court's decision in Wade v. United States, 504 U.S. 181, 185–86, 112 S.Ct. 1840, 1843–44, 118 L.Ed.2d 524 (1992), imposed on the government's power to request a sentence reduction for the defendant's substantial assistance pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. Relying on the nearly unbridled discretion that the Wade standard reserved to the government, we concluded that it was permissible for the government to condition its assent to extra credit for acceptance of responsibility on the defendant's agreement to waive his appellate rights. 576 F.3d at 711. We reasoned that an appeal waiver would spare the government the need to defend the defendant's conviction and sentence on appeal; and the government's wish to avoid the cost and uncertainty associated with an appeal “was a legitimate desire, closely related to the express criteria in subsection (b)” of the guideline. Id.

But, given the language of section 3E1.1., I believe the limitations on the government's discretion are greater than we recognized in Deberry. Although the PROTECT Act made the government the arbiter of whether a defendant ought to receive the extra reduction for acceptance of responsibility, see576 F.3d at 710, the straightforward terms of both the guideline and the accompanying commentary specify the criteria that control the government's assessment. Subsection (b) of the guideline describes the motion that must be filed by the government soliciting the reduction as one “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 mine.) The plain focus of this language is on the defendant's timely notification that he intends to plead guilty, an act which spares both the government and the court the need to prepare for trial. Application Note 6 reinforces the point when it observes:

... In general, the conduct qualifying for a decrease in offense level under subsection (b) will occur particularly early in the case. For example, to qualify under subsection (b), the defendant must have notified authorities of his intention to enter a plea of guilty at a sufficiently early point in the process so that the government may avoid preparing for trial and the court may schedule its calendar efficiently.

Because the [g]overnment 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 [g]overnment at the time of sentencing.

§ 3B1.1, comment. (n.6.) (emphasis mine) (citation omitted). The background commentary adds that a defendant who has met the criteria set...