For the Defense - Vol. 8, Issue 4 - 33

While this change is designed to encourage the Government to
be more forthcoming with requesting that the Court include the
third point in a defendant's Guidelines calculation, it may be all
but illusory in the Third Circuit. Before the amendment, several
courts, including the Third Circuit, had held that the Government
may refrain from filing a motion for the third point based on the
Government's need to respond to a suppression motion.22
These
courts treat the motion for the third point the same as they treat
a motion made pursuant to U.S.S.G. §5K1.1. Notably, in Drennon
v. United States, the Third Circuit wrote:
The relevant text of §3E1.1(b) tracks that of §5K1.1
which requires a motion from the government before
any downward departure may be granted based upon
the defendant's cooperation with the government...
This similarity of text and purpose leads us to the
conclusion that our §5K1.1 jurisprudence is particularly
helpful in applying §3E1.1(b).23
The Drennon court relied upon Wade v. United States, 24
a case
involving a prosecutor's discretion to file a 5K1.1 motion, which
held:
Because we see no reason why courts should treat
a prosecutor's refusal to file a substantial-assistance
motion differently from a prosecutor's other decisions,
..., we hold that federal district courts have authority
to review a prosecutor's refusal to file a substantialassistance
motion and to grant a remedy if they find
that the refusal was based on an unconstitutional
motive.25
Since the discretion to file a motion under U.S.S.G. §5K1.1 rests
with the prosecutor, the same is true for a motion under U.S.S.G.
§3E1.1. The new amendment provides some wiggle room to the
Government noting that " preparations for pretrial proceedings
...ordinarily are not considered 'preparing for trial' under this
subsection " (emphasis added). In Drennon, the Government's
purported rationale for withholding the third point was that
" 'the large majority of the work to prepare for trial had been
done in connection with the suppression hearing.' " 26
Postamendment,
the same rationale would likely lead to the same
outcome.
Courts of appeal have also split on the Government's refusal
to file a motion for the third point after the defendant filed
objections to the Presentence Report. Three circuits, including the
Third Circuit, have held that the Government has the discretion
to withhold filing a motion for the third point if a defendant
challenges the findings in the Presentence Report, while two
Circuits reached the opposite conclusion.27
Here again, the Third Circuit has weighed in with an opinion
holding that the Government has discretion to withhold the
third point if there is a challenge to Guideline computations at
sentencing. Following Drennon, in United States v. Adair, the
panel noted:
The government's position reflects the additional
leverage that Congress-as a policy choice-imparted
to it through the conferral of discretion over §3E1.1(b)
motions. But using the third-point reduction as a
bargaining chip to resolve sentencing disputes is not
an unconstitutional motive, and thus Adair cannot
This Guideline provides several limitations. First, the resentencing
shall not reduce the defendant's term of imprisonment
to a term that is less than the minimum of the amended guideline
range.30
prevail in her effort to compel the government to
make a §3E1.1(b) motion.28
Given the broad discretion afforded to prosecutors, it is
unclear if this amendment will force the Government to move
for the third point where the defendant chooses to litigate issues
pertaining to their Presentence Report.
Amendment #821: U.S.S.G §§ 4A1.1, 4C1.1, and 4A1.3 (Redefining
who qualifies for " status points, " reducing sentences of most
first-time offenders, and adding commentary on convictions for
possession of marihuana).
Perhaps the most significant amendment in 2023 to the
Sentencing Guidelines involves the calculation of a defendant's
criminal history and further lowers Guideline scores for
defendants who have no prior convictions.
Amendment #821 has three parts. Part A of the amendment
addresses " status points, " which are the points used to compute
criminal history category for violations of probation. Part B creates
a new guideline, U.S.S.G. §4C1.1, for first-time offenders. Part
C amends the §4A1.3 commentary to include prior marihuana
possession sentences as an example of when a downward
departure may be warranted for criminal history reasons.
Significantly, in August 2023, the Commission voted to allow
retroactive application of Parts A and B. Defendants who were
previously sentenced without the benefit of these Guideline
amendments may petition the sentencing court for a lower
sentence. By statute, a district court may reduce a defendant's
sentence if the sentencing range has subsequently been lowered
by the Commission.29
The district court may act, " upon motion
of the defendant or the Director of the Bureau of Prisons, or
on its own motion. " To effectuate this statute, the Commission
modified the policy statement found at U.S.S.G. §1B1.10 (directing
courts to lower a defendant's sentence when the Guidelines have
been amended with retroactive effect) by adding Parts A and B
of Amendment #821 to the list of amendments covered by the
policy statement.
This means that if the defendant received a variance
below the new Guideline range, their sentence is not eligible for
a retroactive amendment. However, if the term of imprisonment
imposed was less than the term of imprisonment provided by the
Guideline range as a result of a motion for substantial assistance,
a reduction " may be appropriate. " 31
Finally, a defendant's
sentenced may not be reduced to " term of imprisonment less than
the term of imprisonment the defendant has already served. " 32
This means that the provision only applies to defendants who
are in custody. Defendants released from custody, whose terms
of supervised release would be shortened, do not benefit from
the retroactive application of these Guidelines. Finally, the
Commission voted to allow for delayed retroactive application
of Parts A and B with an effective date no earlier than February
1, 2024, to allow for all interested stakeholders to review and
respond to petitions filed pursuant to the amendments.
Vol. 8, Issue 4 l For The Defense 33
For the Defense - Vol. 8, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 4
