940 F.3d 1038
9th Cir.2019Background
- Jeffrey Green, a felon, was arrested in Anchorage; officers found a loaded revolver on his person and two stolen pistols in a safe accessible from his apartment.
- Green pleaded guilty to one count of being a felon in possession of a firearm, admitting possession of the revolver but not admitting possession of the two pistols found in the safe.
- The presentence report treated all three guns (two stolen) as relevant conduct and denied a Guidelines §3E1.1 acceptance-of-responsibility reduction because Green did not admit possession of the two pistols.
- The district court held an evidentiary hearing and found by a preponderance that Green possessed the two pistols, but—before hearing Green’s allocution—announced it would not grant the acceptance reduction, relying on its view of Ninth Circuit precedent.
- After allocution, the court imposed a 108-month sentence within the Guidelines range it had calculated; without the §3E1.1 reduction Green’s Guideline range would have been lower.
- On appeal the Ninth Circuit concluded the district court erred by deciding the acceptance-reduction issue before hearing allocution, found plain error, vacated the sentence, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Green) | Held |
|---|---|---|---|
| Whether a district court must determine §3E1.1 acceptance before hearing allocution | Sentencing must begin with a Guidelines determination; thus court need not hear allocution first | Allocution may show sincere contrition and must be heard before deciding acceptance | Court held: No; district court may hear allocution before deciding §3E1.1 eligibility |
| Whether district court’s refusal to hear allocution was legal error | Prior cases (Kimbrough/Gall/Carty) require starting with Guidelines | Those cases do not prohibit collecting evidence/allocution before final Guidelines calculation | Court held: District court misapprehended law; error was plain |
| Whether reliance on Ginn made acceptance unavailable because Green didn’t admit all firearms | Ginn interpreted to require acceptance of all convicted counts | Green had one count; not required to admit all related conduct to get §3E1.1 | Court held: Ginn inapplicable here; district court erred to rely on it |
| Whether the error affected substantial rights and fairness | (Implicit) Allocution might not change sentence | Green: could reasonably obtain a lower sentence if §3E1.1 granted after allocution | Court held: Error affected substantial rights and fairness; remand for resentencing |
Key Cases Cited
- United States v. Ginn, 87 F.3d 367 (9th Cir. 1996) (discussing acceptance reduction where defendant convicted of multiple counts)
- United States v. Garrido, 596 F.3d 613 (9th Cir. 2010) (clarifying acceptance reduction and grouped counts)
- United States v. Vance, 62 F.3d 1152 (9th Cir. 1995) (guilty plea with admissions supports inference of acceptance)
- Kimbrough v. United States, 552 U.S. 85 (2007) (Guidelines as starting point in sentencing)
- Gall v. United States, 552 U.S. 38 (2007) (district courts should begin sentencing by calculating the Guidelines range)
- United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (all sentencing proceedings begin by determining applicable Guidelines range)
- United States v. Cortes, 299 F.3d 1030 (9th Cir. 2002) (de novo review for legal questions about acceptance reduction)
- United States v. Depue, 912 F.3d 1227 (9th Cir. 2019) (plain-error standard and waiver principles)