Saturday, September 06, 2008

Case o' The Week: Government Uses Trial Acceptance Guideline to Coerce Appeal Waivers, Medina-Beltran and Third "Acceptance" Level

This innocous little case, where one offense level (a handful of months) was at issue, is (respectfully) a leading contender for the worst Ninth Circuit decision of 2008. See United States v. Medina-Beltran, No. 06-10181, 2008 WL 4093611 (9th Cir. Sept. 5, 2005), decision available here.

An opinion that deserves the fast-track to the
en banc court.

Players: Hard-fought appeal by Tucson AFPD Saul Huerta. Per curiam decision by Judges Siler (Senior Sixth Circuit), McKeown, and Callahan (right).

Interestingly, Judge Callahan was also on the Espinoza-Cano panel. Espinoza-Cano is the Ninth Circuit case that first started these problems with the government's abuse of the acceptance of responsibility guideline.

Facts: {Ed. Note - this decision creates a major new Circuit rule, yet is barely two pages long, has scant analysis, and even less factual background. These facts are accordingly drawn from the appellant’s briefs.} Out of the gate, Medina-Beltran offered to plead guilty to illegal reentry. Appellant’s Brief, 2006 WL 2701301, *13. He plead “open” (without a plea agreement) and moved for departures and variances at sentencing. Id. at *5-*6.

The government refused to move a reduction of the third offense level for acceptance under USSG § 3E1.1(b), because Medina-Beltran declined a plea agreement that had an appellate waiver. Id. at *13.

Issue(s): “Medina-Beltran disputes the district court’s refusal to grant him a third-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b) . . . . Medina argues only that the prosecutor acted arbitrarily in refusing to move for the additional reduction.” Medina-Beltran, 2008 WL 4093611 at *1.

Held: “Although Medina-Beltran pled guilty and avoided a trial on the substantive offense, he objected to his sentencing enhancement and rejected the government’s proposed appeal waiver. The government anticipated and defended his appeal of his sentence. Under these circumstances, the government's decision not to move for the additional level reduction was not arbitrary.” Id. at *1.

Of Note: With all respect, this is one of the worst decisions of 2008. Its roots stretch back to the 2003 Feeney Amendment. That amendment was ghosted by DOJ, sponsored by a freshman Representative, and rushed through a Republican Congress with no debate or discussion. It was an amendment that Orin Hatch (and quietly, Justice Breyer) thought was nuts. See article here.

The Feeney Amendment let the prosecutor – instead of the Court – decide on whether the defendant would get the full reduction for acceptance of responsibility. See § 3E1.1(b), entire text available here. We predicted rampant AUSA abuse of their discretion on whether to give the defendant credit for acceptance of responsibility. See Espinoza-Cano blog here, Gomez-Mendez blog here, Baza-Martinez blog here, Cannel blog here.

We were right.

In Medina-Beltran, the Ninth has adopted a shocking new rule: the government can extort appeal waivers by withholding the third offense level for acceptance of responsibility. The guideline itself, however, instructs that this acceptance level is to be given if a plea permits the government “to avoid preparing for trial.” USSG § 3E1.1(b). How, exactly, is an appeal waiver related to trial? The decision flatly ignores the plain text of the guideline.

Medina-Beltran will have a tremendous impact on our practice, because many clients will cave to the government’s extortion of the third acceptance level rather than preserve a sentencing appeal. This problem is exacerbated by USAO’s flat ban on conditional pleas (like in the Northern District of California). Congress and the Commission would never approve a guideline that conditioned acceptance points on appeal waivers. Yet, by slowly (and frankly, disingenuously) pushing the envelope, that is exactly what the government has achieved.

This decision should go en banc.

How to Use: On a “heavy” illegal reentry case, losing this third “point” costs seven months. (CH VI, OL 22 versus 21). If a client wants to preserve a sentencing appeal don’t plead until the Friday before a Monday trial. Remember, the Court gives the first two acceptance levels, and for those two levels the plea doesn’t need to be “timely” -- anytime before the jury is sworn will do.

Let's share the pain of this inane rule, and force AUSAs to subpoena witnesses and prepare in limine motions if they extort appeal wavers by withholding the third acceptance level. If the government is going to withhold the third acceptance level in any event, why should it enjoy the resource-savings benefit of an early plea?

Savvy district courts will soon figure out that AUSAs who abuse their power over this third acceptance level are causing everyone a great deal of unwarranted work -- and are doing so unfairly. Moreover, it is particularly notable that most experienced AUSAs (and to be honest, most reasonable prosecutors) have not been playing games with this third acceptance level.

How should we educate the district courts that this problem starts with the government, not our clients? Seek orders compelling conditional pleas, file case status memos explaining the third point is being withheld for unfair reasons, describe the dispute in the open-plea hearing and foreshadow the debate at sentencing. The abuse of this third acceptance level will carry unanticipated institutional costs -- and those costs should be laid squarely at the government's feet, where they belong.

For Further Reading: We’re not the only ones concerned by this abuse of the acceptance guideline. In United States v. Cannel, Judge Clifton was troubled by the denial of acceptance when defense counsel had the audacity to make an argument at sentencing. 517 F.3d 1172 (9th Cir. 2008) (Clifton, J., concurring in the judgment).

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

Image of the Hon. Consuelo Callahan courtesy of


Labels: , , , ,


Post a Comment

<< Home