In a federal criminal appeal this week, the Fourth Circuit bucked a line of cases in other circuits and held that the government can’t try to give a longer sentence to criminal defendants just because they won’t give up their right to appeal.
A bit of background is helpful.
In the federal system, if a person enters a plea of guilty and accepts responsibility for their conduct, their federal sentencing guidelines level is reduced by two-levels automatically. If the government makes a motion for additional acceptance, the guidelines level will drop an additional, third level. The government is supposed to make that motion based on whether the person said he was going to plead early in the process, thereby saving the government time in preparing for trial (because, of course, using the government’s resources efficiently is a factor in 18 U.S.C. section 3553(a)).
The guidelines provisions are set out in section 3E1.1.
In United States v. Divens, though, the government said that they knew the defendant, Divens, was going to plead early. It’s just that he wouldn’t execute a plea agreement that gave up his right to appeal. The government said they wouldn’t move for the additional level if it meant they had the possibility of having to do an appeal. At sentencing, without a government motion, the Court didn’t give Divens credit for the third level.
Divens appealed, saying that the government can only refuse to move for the third level if they have to prepare for trial. Here, the government didn’t have to prepare, because Divens said he’d plead early.
Stunningly, the Fourth Circuit agreed. Even though a number of other circuits have held that the government doesn’t have to make the motion, the Fourth now requires the government to move for an additional level when trial prep has been avoided, regardless of whether the defendant will bend to additional government demands.
Why does this matter? Because in plea negotiations, the government often demands plenty of concessions that don’t have anything to do with avoiding trial preparation. The government requires defendants to waive their ability to FOIA their investigative files (even though they likely couldn’t get them anyway based on other FOIA exceptions), to waive their appeal rights, to give up forfeiture rights, to agree to restitution, and others. The threat the government uses is that they won’t move for the third level if the defendant won’t give up these rights.
So, after Divens, the threat of the third level should be substantially different in the Fourth Circuit.
If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.