Divens: The Fourth Splits From The Ninth On The Third Level For Acceptance Of Responsibility

The government claims its discretion to move for the third acceptance of responsibility level under U.S.S.G. § 3E1.1(b) is coextensive with its almost unlimited discretion to file a substantial assistance motion under U.S.S.G. § 5K1.1. The Fourth Circuit says no. In a 3-0 opinion authored by Judge Motz, the court in Divens examined the plain statutory language and concluded that the third level depended only on conserving trial resources. Therefore, the government’s refusal to move for the third level because the defendant declined to sign an appeal waiver violated the Guidelines and required a remand and resentencing.

For those who like their legal reasoning linear and their constitutional rights protected, this is good news: Divens creates a split with the First, Fifth, Seventh, and Ninth Circuits. We should be using the Divens split to distinguish adverse circuit authority and, if necessary, to seek rehearing and certiorari from cases that divorce the third level from its purpose and endanger constitutional rights to litigate pretrial motions and to seek appellate review. Fortunately, with many prosecutors, abuse of the third level does not become an issue. Where the third level becomes an issue, we need to preserve the issue at trial, distinguish prior cases, and seek en banc and certiorari review based on both statutory construction and the constitutional interests at stake.

The briefing in this area can be adapted from several sources, including the Divens opinion, Ninth Circuit Judge Milan Smith’s partial dissent in Johnson, and the NACDL amicus brief in support of rehearing in Johnson. The Divens court demonstrated that simple rules of statutory construction require that the third level only be contingent on preservation of trial resources. The other circuits, including the Ninth, simply failed to analyze the fundamental differences between departure for substantial assistance and adjustment for acceptance of responsibility. The Divens opinion addresses this false analogy at pages 4-7 (see also Johnson amicus at 9-12).

Especially in the Ninth Circuit, the court’s acquiescence to prosecutorial punishment for the exercise of constitutional rights violates the basic rules of stare decisis (Johnson dissent at 13062-69, Johnson amicus at 3-6). Under pre-Protect Act precedent, courts could not deny the third level for acceptance of responsibility based on exercise of constitutional rights, including litigation of pretrial motions. This is not surprising, given the Supreme Court’s holding in Simmons that the protections of the Fourth Amendment, and the concomitant need to avoid deterring the exercise of those rights in pretrial motions, were so important that it is “intolerable that one constitutional right should have to be surrendered in order to assert another.” Similarly, although the Johnson court treated the right to an appeal as a procedural option, the Supreme Court has treated the right to appeal as protected: where the statute confers the right to appellate review, the defendant cannot be punished for exercise of that right (Pearce v. North Carolina).

In contrast to the pre-Protect Act solicitude for the exercise of constitutional rights, the court in Johnson held that Ninth Circuit protective precedent was no longer valid based on supposed changes in the Guidelines. However, as Judge Smith painstakingly demonstrated in his partial dissent in Johnson, the operative language was identical both before and after the Protect Act: the only interest upon which the government could deny the third point was conservation of trial resources. The same point was basic to the opinion in Divens. Therefore, we can argue in the district court and on direct appeal that the Johnson case is both distinguishable and lacking in precedential value because it overturns prior circuit precedent that only the en banc court could change. Just as a three-judge panel had no authority to overrule cases decided after an amendment to the Guidelines (Contreras), the Johnson panel lacked authority to overrule precedent where the amendment did not change the relevant language.

Before the enactment of the Guidelines, the Ninth Circuit rule was crystal clear: imposition of a more severe sentence based on exercise of constitutional rights itself violated the Constitution. See, e.g., Capriola, 537 F.2d at 320; Stockwell, 472 F.2d at 1187. When enacting the Guidelines initially, the Sentencing Commission walked a very delicate line in allowing a reward for acceptance of responsibility, which could not be administered as a punishment for exercise of constitutional rights. Before the Protect Act, now-Chief Judge Kozinski noted the blurred distinction between rewarding acceptance of responsibility and punishing exercise of constitutional rights: “[W]hether a sentencing disparity is viewed as a burden or a benefit depends ‘upon whether the shorter sentence is compared to the longer or the longer to the shorter.’” Aichele, 941 F.2d at 769 (Kozinski, J., dissenting). The Ninth Circuit rule was that, in order to "avoid unconstitutional application of Sentencing Guidelines," the acceptance of responsibility guideline had to be construed so that "a sentencing court cannot consider against a defendant any constitutionally protected conduct." Watt, 910 F.2d at 592. After the Protect Act, the need to guard against punishment for exercising Fourth Amendment and appellate rights is even greater. The Fourth Circuit decision in Divens prohibits imposition of extra time in custody for having the temerity to challenge unlawful governmental action on appeal. In the other circuits’ approach to the third level for acceptance of responsibility, the judiciary has abdicated its role in protecting the exercise of constitutional rights in favor of hyper-deference to prosecutors (Johnson amicus at 13-19).

In the trenches of the criminal justice system, conflict over the third point is usually resolved far short of formal litigation. Where the issue is clearly raised, we should be assuring that it is properly preserved, litigated based on factual and legal distinctions on appeal, and, if all else fails, litigated en banc and by petition for certiorari to resolve the split in favor of the Divens position. Congratulations to Team Divens of the West Virginia Federal Public Defender’s office for their persistence and advocacy on this important question!

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon