Lee: The Second Joins The Fourth In Rejecting The Ninth On The Third Level For Acceptance Of Responsibility

More good news on the third level for acceptance of responsibility! Three weeks ago, the Fourth Circuit in Divens broke off from the other circuits, rejecting the government’s claim that its discretion to move for the third acceptance of responsibility level is commensurate with substantial assistance discretion and can be based on the defendant's exercise of appellate and pretrial rights. As blogged here, the Divens opinion systematically debunked the reasoning of the other circuits, demonstrating that the government’s departure power differs significantly from the Chapter 3 adjustment, which only pertains to preservation of trial resources.

Now the Second Circuit goes one better. In Lee, the court joins Divens in finding that both the acceptance of responsibility guideline and its commentary only authorize withholding of the third level based on preservation of trial resources. The Second Circuit explicitly adopted the “instructive” reasoning of Divens. But here’s where the Second Circuit takes the next big step: the court explicitly recognizes the constitutional issues at play where the government imposes a liberty tax for exercise of rights (as the NACDL argued in this Ninth Circuit brief). Here’s what the court says:

“[A] defendant – even one who pleads guilty – has a due process right to reasonably contest errors in the PSR that affect his sentence. . . . A defendant should not be punished for doing so. If there is a good faith dispute as to the accuracy of factual assertion 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 § 3B1.1 motion, even if resolution of the dispute requires a . . . hearing. The government’s refusal to make the motion under these circumstances is 'unlawful and grounds for reproach' because it ignores the language of the guideline, its purpose, and the intent of Congress.”

So the split has sharpened. The analysis the Ninth Circuit approved in Johnson, with Judge Milan Smith disagreeing, is viewed as “grounds for reproach” in the Second Circuit. Here in the Ninth Circuit, we should be encouraged by Lee to distinguish the facts of Johnson, to challenge the validity of the Johnson under the rules of stare decisis, and, if all else fails, to seek rehearing en banc and Supreme Court review.

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