United States v. Divens
2011 U.S. App. LEXIS 13645
| 4th Cir. | 2011Background
- Divens pled guilty to possession with intent to distribute crack cocaine.
- He signed an acceptance of responsibility but refused to sign a plea agreement waiving appellate rights.
- The government refused to move for a two-level reduction under §3E1.1(a) plus an additional one-level reduction under §3E1.1(b) because of the waiver dispute.
- Probation recommended a two-level reduction for acceptance of responsibility and noted the likelihood the government would not move for the §3E1.1(b) extra reduction.
- The district court accepted the two-level reduction, declined to apply the §3E1.1(b) extra reduction due to government discretion, departed downward, and sentenced Divens to 36 months.
- The Fourth Circuit vacated Divens's sentence and remanded for proceedings consistent with their opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government may withhold §3E1.1(b) relief based on appellate waiver. | Divens argues government withholding violates §3E1.1(b) and its mandatory terms. | The government may withhold under §3E1.1(b) based on rational interests. | No; the government’s discretion is limited by the guideline commentary and must be based on the defendant’s compliance with §3E1.1(b) criteria. |
| Whether the appellate waiver justifies withholding the §3E1.1(b) motion. | Divens’s appellate waiver cannot justify denying §3E1.1(b) motion since waiver is not required for the benefit. | The waiver could be a relevant factor in the government's exercise of discretion. | Appellate waiver is not a valid reason to deny the §3E1.1(b) motion under the guideline text and commentary. |
| What standard governs the government’s exercise of §3E1.1(b) discretion post-PROTECT Act amendments. | The government must be governed by §3E1.1(b) text and commentary, not broad §5K1.1 discretion. | Congress intended greater government discretion under §3E1.1(b). | Guideline commentary binds judicial interpretation; the government’s discretion is narrower than §5K1.1. |
| Whether the district court erred in applying the §3E1.1(b) framework given the government’s stance. | The court should compel the government to move for the §3E1.1(b) reduction. | Discretion to file the motion rests with the government, not the court. | Remand to determine if the government has a valid reason to refuse §3E1.1(b) motion; if not, government must file. |
Key Cases Cited
- Wade v. United States, 504 U.S. 181 (U.S. 1992) (government discretionary downward adjustments; not a duty to file but can be compelled if refusal lacks rational basis)
- United States v. Butler, 272 F.3d 683 (4th Cir. 2001) (government discretion in similar contexts must be rationally related to legitimate ends)
- United States v. Hood, 628 F.3d 669 (4th Cir. 2010) (distinguishes §3E1.1(b) commentary-based interpretation from §5K1.1 cases)
- United States v. Chase, 466 F.3d 310 (4th Cir. 2006) (recognition of limitations on government discretion under §3E1.1(b))
- United States v. Wiggins, 905 F.2d 51 (4th Cir. 1990) (upholds appellate waivers in appropriate contexts)