Sunday, September 13, 2009

Case o' The Week: No Acceptance for (Un)Appealing Decision, Johnson

In 2003, a Republican Congress turned the Sentencing Guidelines system on its head with the PROTECT Act and the Feeney Amendment - an amendment sponsored by then-freshman Representative Tom Feeney, who is now under a corruption investigation.

One of the most subtle, but insidious, aspects of the PROTECT Act was stripping the power to determine "acceptance of responsibility" from its traditional home with the judiciary. Instead, the PROTECT Act vests the power to grant the third acceptance "point" with the defendant's adversary - the prosecutor.

We in the defense bar immediately predicted widespread abuse by AUSAs and an unfair chilling effect on motions and appeals -- despite the fact that the amended guideline purported to limit itself to preserving the government's trial resources.

We were right. United States v. Johnson,__ F.3d __, No. 08-30094, 2009 WL 2883020 (9th Cir. Sept. 10, 2009), decision available here.

Decision by Judge Tallman (upper right), dissent and concurrence by Judge M. Smith. Hard-fought appeal by Alaska AFPD M.J. Haden.

Facts: Johnson, a felon, and two colleagues were pulled over by U.S. Marshals after the trio acted suspiciously in a bank. Id. at *1-*2. The Marshals found a gun on Johnson and he then charged in federal court with a violation of 18 § 922(g)(1). Id.

The district court denied Johnson’s suppression motion. Eight days after the suppression motion was denied, Johnson entered a conditional plea. Id. at *2.

Apparently breaking ranks with the standard practice in the district, Johnson’s AUSA refused to move for a reduction of the third offense level for acceptance of responsibility under USSG § 3E1.1(b). Id. (Section 3E1.1(b) bestows on the government the power to move for the third “acceptance point” when the defendant’s timely acceptance of responsibility permits it to avoid preparing for trial -- see guideline here.) The government rationalized its refusal by pointing to the work that would be required by Johnson’s appeal of the suppression motion. Id. at *2.

The district court conceded that the government spent no effort preparing for trial, but nonetheless refused to give the third acceptance point. Id. at 2.

Issue(s): “The government did not file a § 3E1.1(b) motion for the third-level reduction, citing Johnson’s stated intention to appeal the suppression order. Accordingly, the issue before us is whether the allocation and expenditure of prosecutorial resources for the purposes of defending an appeal is a rational basis for declining to move for the third reduction point.” Id. at 6.

Held: “We hold that it is. When § 3E1.1(b) speaks of conserving government resources in the ‘prosecution’ of the defendant’s ‘misconduct,’ it means more than simply trial preparation.” Id. at 6.

Of Note: We are, shall we say, "unpersuaded" by this decision and start with the opinion’s core fallacy. Judge Tallman reassures us that “In the Commission’s view, the government is in the best position to evaluate whether the defendant has [accepted responsibility and preserved government resources.]” Id. at 5 n. 5 (emphasis added).

This claimed pedigree is not true.

The amended Guideline § 3E1.1(b) most certainly did not come from the Sentencing Commission, but instead was forced down the Commission’s throat by a Republican Congress in the regrettable PROTECT Act. See USSG § 3E1.1 comment. (“Section 401(g) of Public Law 108-21 directly amended subsection (b) . . .”) In short, this amendment is the same, suspect, Congressionally-dictated approach as the crack guidelines – and Rita / Gall taught us how little judicial deference those types of guidelines deserve.

We’ve cried foul since § 3E1.1(b) was first amended. Just as we’ve predicted, lazy or fearful prosecutors have consistently abused their new power, ignoring the words “for trial” and punishing defendants for preserving appellate rights. The government’s abuse of its third-point power has a dramatic and pervasive chilling effect on pretrial motions and on appeals – and all of this from an amendment that the Sentencing Commission never even considered, much less submitted to empirical study and comment.

In a persuasive dissent, Judge Milan Smith thoughtfully parses the actual words of the amended guideline, and rightly worries about the abuse of the government’s new power.

Johnson should go en banc: this issue has a much greater impact on a broad range of cases than those outside of the trenches realize. In effect, Johnson levies a one-offense level toll for bringing a suppression motion and preserving an appeal -- even if a trial date is never even remotely contemplated. That motion/appeal tax is going to let a great deal of very suspect investigation and police work fly under the radar, and all of this is being done under the guise of an amendment that expressly refers to trial resources. Those who care about the Fourth Amendment and Miranda rights should be very troubled by the unchecked growth of Section 3E1.1(b).

How to Use: If Johnson survives, one of two things should happen. Ideally, district courts will deconstruct § 3E1.1(b) to shreds, and will offset any withheld third acceptance point with a Rita / Gall § 3553(a) reduction.

If that does not happen, and the government withholds the third point to punish a defendant for preserving an appeal, don’t plead until the Friday before the Monday trial. The defendant is still entitled to the full two acceptance points from the court – even for a very late plea. See § 3E1.1(a). Show AUSAs what expending resources really means: let the government wade through in limine motions, disclose Brady and Jencks, identify snitches, and fly in all of its witnesses for trial. If the defendant is losing the third point anyway, why reward a bullying AUSA with an early plea?

For Further Reading: For our repeated warnings of § 3E1.1(b) abuse visit our blogs here.

Image of the Hon. Richard Tallman from

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


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