Sunday, July 16, 2006

Case o' The Week: Ninth Rightly Balks at Bad "Acceptance" Decision, Espinoza-Cano

Like the Flying Dutchman (above), a recent unpersuasive “decision” of the Ninth Circuit appears – then thankfully vanishes into the mist. See United States v. Espinoza-Cano, No. 05-10339, 06 Cal. Daily Op. Serv. 7735 (July 13, 2006), not available here. Hopefully, it’s gone for good . . . .

Players: ND Cal AFPD Josh “Young Turk” Cohen with an important challenge.

Facts: Espinoza-Cano raised an unsuccessful legal challenge. Id. at 7742. He then offered to enter a conditional plea, to preserve the appeal. Id. AUSA Rob Rees refused, saying it wasn’t “appropriate.” Id. So, the defendant stipulated to all facts of conviction and stipulated to a bench trial. Id. In other words, this was a “slow plea.” Id. AUSA Rees, however, refused to recommend the third acceptance point because Espinoza-Cano had “put the government to its burden of proof at a stipulated facts bench trial.” Id. at 743.

(Ed. note: Don’t ask me to explain the government’s rationale – this “trial” actually took less time and less government resources than a normal, garden-variety plea).

Issue(s): Did the “district court err[ ] in not reducing his offense level by an additional level for acceptance of responsibility based on his having timely notified authorities of his intent to plead guilty[?]” Id. at 7743.

Held: “By proceeding to trial, Espinoza-Cano did not allow the government to avoid spending resources on preparing for trial. Even if we were to equate a stipulated facts bench trial with an outright guilty plea, the government still would not have been compelled to file the motion . . . . [A] plea of guilty allows the government to avoid expending resources anticipating, and ultimately defending, a complete appeal.” Id. at 7757.

Of Note: This decision posted on July 13th – then promptly disappeared. Now, it can’t be found (though it may reappear soon). The panel was right to withdraw its wrongly-decided opinion. The guideline at issue allows the government to withhold the third acceptance point if it is forced to prepare for trial. Here, AUSA Rees did nothing to prepare for trial – there were no witnesses, no evidence besides the defendant’s declaration, and no jury. The panel simply rewrites the guideline by allowing an AUSA to withhold the third point simply to prevent an appeal.

This is a Big Case. The panel’s phantom decision would allow USAOs to inappropriately shut down many appeals by (as here) refusing to grant conditional pleas, and then by denying a third acceptance point – even when a defendant stipulates to guilt in a bench trial. The panel should remand this case to the district court to evaluate the issue, this opinion should be demoted to a mem dispo, or this decision really should go en banc. Fortunately, the panel now has a chance to change its mind before (re)-releasing its result.

How to Use: If, by chance, the panel is unpersuaded by a blog, the defense should fully exploit the illogic that this opinion creates. First, many fair district court judges are offended by AUSAs who are too timid, or too lazy, to defend legitimate challenges on appeal. That’s particularly true where an entire USAO – like that in the ND Cal – has adopted this policy. That third acceptance point is easy for a sentencing judge to offset in a Booker “adjustment” if the unfairness of the situation is made clear before a stip facts bench trial.

Alternatively, some defendants may be willing to eat the relatively small difference of one “acceptance” offense level to preserve an appeal. Note that the guidelines still provide two acceptance offense levels for a plea – without an AUSA’s blessing – even if the plea is on the eve of trial. Note that the Ninth Circuit has some very good authority regarding credit for the full two acceptance points even after trial, when a trial is simply to preserve a legal issue. Thus, the Espinoza-Cano decision may be of additional, systemic concern: by taking the third point out of play it removes an important incentive for an early plea. An approach designed to preserve resources may, ironically, actually end up costing far more Court and government resources.

For Further Reading: For an interesting – if old – argument defending the need for conditional pleas, see Note, Conditional Guilty Pleas, 93 Harv. L. Rev. 564 (1980).

Steven Kalar, Senior Litigator, N.D. Cal. FPD. Website available at



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