UNITED STATES OF AMERICA, Appellee, v. MARILYN VARGAS, Defendant-Appellant.
Docket No. 19-463-cr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2019. Argued: March 13, 2020. Decided: June 9, 2020.
Before: LYNCH and CHIN, Circuit Judges, and ENGELMAYER, District Judge.*
Marilyn Vargas appeals from her sentence imposed following her plea of guilty to the charge of conspiracy to distribute narcotics. She argues first, that the sentence was procedurally unreasonable because the district court erred in denying the government‘s motion for a one-level reduction in her offense level for timely accepting responsibility under
BRENDAN WHITE, White & White, New York, NY (Mitchell C. Elman, Law Offices of Mitchell C. Elman, P.C., Garden City, NY, on the brief), for Defendant-Appellant Marilyn Vargas.
ROBERT B. SOBELMAN, Assistant United States Attorney (Andrew Chan, Daniel B. Tehrani, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.
Defendant-appellant Marilyn Vargas appeals from a judgment entered in the United States District Court for the Southern District of New York (Valerie E. Caproni, J.), following her plea of guilty to a charge of conspiracy to distribute narcotics, in violation of
BACKGROUND
On November 30, 2017, Vargas was arrested for her role in a drug trafficking organization that transported cocaine into the United States. Prior to her arrest, Drug Enforcement Administration (“DEA“) agents observed Vargas drive into the parking lot of a restaurant. Shortly thereafter, another vehicle pulled up next to Vargas‘s car; a co-conspirator got out of that vehicle and walked over to Vargas‘s. After speaking with Vargas for a few minutes, the co-conspirator placed a box in the trunk of her car. At that point, DEA agents approached and obtained Vargas‘s consent to search the trunk. Inside the box in the trunk, the agents found 20 brick-shaped packages containing a white powdery substance later determined to be cocaine.
On September 5, 2018, Vargas pled guilty to the indictment pursuant to a plea agreement with the government (the “Plea Agreement“). In the Plea Agreement, the parties stipulated to the following calculation of the recommended sentencing range under the United States Sentencing Guidelines (the “Guidelines“): Under
The Probation Office‘s guideline calculation in the Presentence Investigation Report mirrored that in the Plea Agreement. Nevertheless, the Probation Office recommended a below-guideline sentence of 60 months’ imprisonment.
At sentencing, the district court‘s calculation differed in one important respect: the court concluded that Vargas was eligible only for a two-level, rather than a three-level, reduction in her offense level for acceptance of responsibility under
DISCUSSION
We review a district court‘s sentencing decision for procedural and substantive reasonableness, using a “deferential abuse-of-discretion standard.” See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (internal citation omitted). “[A] sentence is procedurally unreasonable if a district court committed an error of law in the course of exercising discretion, [or] erred in determining the applicable Guideline range or availability of departure authority.” United States v. Johnson, 567 F.3d 40, 51-52 (2d Cir. 2009) (internal quotation marks omitted) (emphasis omitted).
“The abuse-of-discretion standard incorporates de novo review of questions of law (including interpretations of the Guidelines) and clear-error review of questions of fact.” United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008). “When a party properly objects to a sentencing error in the district court, we review for harmless error; issues not raised in the
Vargas contends first that the district court erred as a matter of law in denying the government‘s motion to accord her an additional one-level downward adjustment for timely acceptance of responsibility under
Vargas raises two distinct challenges to the district court‘s refusal to award the additional third “point” for acceptance of responsibility based on a resource-saving timely guilty plea. First, she contends that, once the district court has granted a two-level reduction under
I. A District Court Has the Power to Deny a Government Motion Under § 3E1.1(b) .
Section 3E1.1 of the Guidelines provides, in two subsections, for reduction of a defendant‘s offense level by up to three levels for acceptance of responsibility.
Vargas at times appears to argue that the district court has no discretion to deny a government motion. That is indeed how some courts have characterized the issue. See, e.g., United States v. Mount, 675 F.3d 1052, 1055 (7th Cir. 2012) (“The question is whether, in cases where [the first two criteria under § 3E1.1(b) are met and the government has moved the court to award the third point reduction], the additional one-level downward adjustment remains discretionary with the court, or if—strictly as a matter of properly computing the advisory guideline range—it is mandatory.“). We respectfully believe that this formulation misconceives the issue. There is no question that where all three conditions in subsection (b) are satisfied, the application of the additional one-level decrease is mandatory, not discretionary. See United States v. Rood, 281 F.3d 353, 357 (2d Cir. 2002) (“[G]ranting the additional one-level decrease in Section 3E1.1(b) is not discretionary where defendant satisfies the guideline‘s criteria.“). That conclusion is consistent with the sentencing court‘s usual role in calculating the guideline sentencing range. The Sentencing Commission (and, in a few instances, Congress itself) defines the conditions under which offense
Properly understood, however, the issue presented by Vargas‘s argument is the correct interpretation of “the guideline‘s criteria” for the award of the additional one-level adjustment it creates — specifically, whether the third condition under subsection (b) is satisfied simply by the government‘s filing of the motion, such that the district court is bound by the government‘s representation that the guilty plea has permitted the government to avoid preparing for trial and to allocate its resources efficiently, or the court is required to make its own factual determination about whether resources have in fact been saved by the plea. Under neither interpretation is the award of the third point discretionary in the sense that the court may use its own judgment in deciding whether, taking the totality of the relevant circumstances into account, the adjustment is appropriate. But if the guideline requires the court to find that the government‘s representations are accurate, the court retains the ultimate authority to determine whether that is so. If that is the proper reading of the guideline, the court retains the authority, in at least some circumstances, to deny the government‘s motion.
The distinction is nicely illustrated by the facts of our summary decision in United States v. Reyes, 718 F. App‘x 56 (2d Cir. 2018). There, the district court gave the defendant the basic two-level reduction for acceptance of responsibility under
The issue here is different. Here, the district court ruled that the criteria set forth in the guideline had not been met, because the plea was not sufficiently timely to result in the benefits to the government and the court referenced in the guideline‘s text. Vargas maintains that this was error, because the guideline requires only that the government say that the plea resulted in such benefits, and that the district court may not evaluate the accuracy of that representation. The government, in contrast, although adhering to its view that its assertion was correct, defends the court‘s ultimate authority to decide the factual question. It is common ground between the parties that the government‘s motion is a necessary precondition for the award of the third point; the guideline clearly requires a government motion, and the court does not have power to award the third point without a government request, simply because the court believes that the plea came early enough to save
We look first to the text of
A. The History of § 3E1.1
Prior to 1992, the Guidelines provided only a two-level reduction for acceptance of responsibility, using language substantially similar to that which now appears in
In 1992, however, the Sentencing Commission added subsection (b), to provide for an additional one-level reduction in cases in which the otherwise applicable offense level exceeded a set threshold, where the defendant — though not qualifying for a departure for providing “substantial assistance in the investigation or prosecution of another,”
[i]f the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps: (1) timely providing complete information to the government concerning his own involvement in the offense; or (2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently.
The situation changed in 2003, when Congress directly amended
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.
It is undisputed that, under the present version of the guideline, “a government motion is a necessary prerequisite to the additional one-level decrease under Guidelines § 3E1.1(b).” Sloley, 464 F.3d at 359. The question before the Court is whether the government‘s motion is in itself a sufficient condition to satisfy the third prong of
B. Textual Analysis
Any effort to answer that question by reference to the “plain meaning” of the text of the amended guideline is confounded by the fact that the controlling language is syntactically incoherent, and does not adopt any of the readily available alternatives that would have provided a clear answer, one way or the other, to the question. As a result, a close reading of the text, rather than providing a clear answer, confirms its ambiguity.
To begin, the words of the amendment do not “scan” grammatically. Both parties, and all courts that have addressed the provision, construe the present guideline, like its predecessor, as containing three criteria, listed sequentially within a conditional
The amended text does not conform to the grammatical rule. In the amended guideline, the third item in the series is not a coordinate clause, but a mere prepositional phrase, “upon motion of the government stating that the defendant has assisted authorities [by entering a timely plea].”
But the drafters made neither choice, presumably because their principal concern was not with the issue we now face. It is clear that Congress wanted (procedurally) to require a motion by the government for the additional reduction to be granted, and (substantively) for the reduction to turn on whether the defendant had entered a timely plea, thus allowing the government and the court to allocate resources more efficiently. But the relation between those two goals is not directly answered by the words chosen.
That does not mean that we are without textual clues as to what mattered to Congress. On the one hand, it is clear that the requirement of a government motion was primary. The motion is, syntactically, the linchpin of the third condition: The remaining factors are detailed in the form of a
But that the motion is important (and indeed necessary) to the award of the reduction does not mean that its presence requires the grant of a further sentencing benefit to the defendant. As noted, if that was the intention, it would have been very easy to say exactly that, and the amendment does not say it. Moreover, the requirement of the motion was plainly inserted to limit or condition the availability of the reduction. The court is not to grant the reduction if the defendant asks for it and the court thinks that the defendant has fulfilled his triggering obligation to offer a timely plea; rather, the government must seek the reduction or it is simply unavailable. Congress made that intention crystal clear, explicitly stating it not merely in legislative history, but in the text of the
amending legislation itself. The PROTECT Act changed both the text of the guideline, and the guideline commentary, the latter emphasizing that the reduction “may only be granted upon a formal motion by the Government.”
The importance of the required motion, then, does not in itself signify that Congress intended to make the motion a sufficient as well as a necessary condition. Similar provisions in the Guidelines and in statutes require a motion by the government as a prerequisite to sentencing leniency, opening the door to a reduction but leaving substantial authority to the sentencing court. For example, the other principal statutory authorization for lower sentences based on assistance to the authorities, the provision permitting a sentence below otherwise-applicable mandatory minimum sentences for defendants who provide substantial assistance in the prosecution of others, gives “the court . . . the authority” to impose a sentence below the minimum, “[u]pon motion of the Government.”
These provisions illustrate that the requirement of a government motion as a precondition to sentencing relief does not
But while these considerations make clear that the requirement of a government motion does not in itself compel the conclusion that the court is obligated to grant the motion once made, they do not in themselves provide an answer to our question. Notably, both
The text of
As discussed above, a plain reading of the PROTECT Act‘s amendments to
First, although the matter is anything but free from doubt, the language does offer clues pointing to that conclusion. As we have noted, the requirement of a “motion” does not conclusively determine that the motion may be denied. But most commonly, as discussed above, a motion is an “application requesting a court to make a specified ruling or order.” Motion, BLACK‘S LAW DICTIONARY (11th ed. 2019) (emphasis added). In the vast majority of situations, the party making the motion must show either that a particular legal standard for the granting of the request is met on the facts of the case, such that the court must grant the motion as a matter of law, or that the court has discretion to grant the request, and there are persuasive reasons for the court to do so. In either event, the court determines whether the facts of the case warrant the relief requested. There is an obvious alternative word that would have made it clear that the government‘s assertion was binding on the court: Congress could simply have provided that the reduction was available “upon certification by the government” that a timely plea had permitted resource savings. See id. at Certification (defining a certification as “the process of giving someone or something an official document stating that a specified standard has been satisfied“). But it did not.
Moreover, the text specifies the reasons why the timely guilty plea warrants an additional sentencing concession to the defendant, and those reasons sound in the benefits such a plea provides to the government and the court. It would make no sense to exclude the court entirely from the determination of whether those benefits have been achieved, by making the government‘s assessment that the court has benefitted from the plea conclusive. Congress could have made time and resource savings for the government alone relevant to the award of the adjustment, but again, it did not do so.
Second, the history of the provision, coupled with what the amended text does not say, further counsels against Vargas‘s interpretation of the guideline. Before the amendment, the assessment of whether the third point should be awarded was entirely in the hands of the court, which was exclusively empowered to decide whether the timing of the plea, or other assistance to the authorities offered by the defendant, warranted a one-level downward adjustment of the offense level. Although the PROTECT Act added a “motion of the government” to the list of conditions required to satisfy
We are fortified in our interpretation by the views of the Sentencing Commission. Two of our sister circuits, confronted in the aftermath of the PROTECT Act with arguments similar to those made by Vargas here, reached conflicting results.1 In 2013, in an effort to resolve the split, the Sentencing Commission undertook to address the question of the courts’ authority to deny a
Our Court has never previously addressed this issue. Contrary to Vargas‘s assertion, our decision in Reyes, 718 F. App‘x 56, does not support her position. As discussed above, we held in Reyes that the district court “commit[ted] a legal error in concluding it had discretion to deny a one-level reduction under
If the government files such a motion, and the court in deciding whether to grant the motion also determines that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, the court should grant the motion.
Ordinarily, commentary “that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). We need not decide whether that degree of deference is owed to the Sentencing Commission when its commentary interprets text that was added to the Guidelines not by the Sentencing Commission itself but by Congress. Far from being “a plainly erroneous reading” of
Accordingly, we hold that although the government’s motion is a necessary prerequisite for the application of the one-level reduction under
II. The District Court’s Denial of the Government’s Motion Was Error.
Alternatively, Vargas contends that, even if the district court does have the authority to deny the government’s motion, it erred by doing so here. We agree. The district court failed to adequately explain its conclusion that the conditions set by
When determining whether Vargas was entitled to the additional one-level reduction in her offense level under
[Court]: Why is she entitled to the third point when we went through a suppression hearing in this case? . . .
[Government]: Your Honor, the government’s view was that we had not been preparing for trial; we were preparing for the suppression hearing. Obviously, trial was not far off.
[Government]: It would be some of the same witnesses. There would be additional witnesses for trial.
[Court]: True, but are you saying you did not have to do substantial trial preparation work to prepare for the suppression hearing?
[Government]: I suppose it depends on how you look at it. We were preparing for the suppression hearing. Much of that preparation would have been carried over and not duplicated for the trial, but there would have been some additional preparation that would‘ve been needed for trial. It would have been – there was substantial overlap, as your Honor is flagging.
[Court]: OK. Is the government moving for the third point?
[Government]: Yes, your Honor. . . .
[Court]: All right. Well I do not find it. . . . [T]he third point is for someone who accepts responsibility early in the process, to save the government from the work involved in preparing for trial. In this case, the suppression hearing was probably two-thirds of the trial. The informant would have had to testify, maybe. They might . . . have structured a trial without having had the informant testify. [Vargas] was caught with 20 kilograms of cocaine in the trunk of her car, so it’s not clear to me that this was early enough in the process that that third point is available. . . . I respectfully disagree with probation. This plea was entered if not quite on the eve of trial, close, and certainly after a lengthy suppression hearing had been held that required a substantial amount of work on the government’s part, so she gets a minus two for that.
App‘x 67-70. Based on this record, we conclude that the district court lacked a sufficient factual basis to justify its decision to deny the government‘s motion.
First, the district court made no factual findings about whether the plea was sufficiently timely to allow it to allocate its resources efficiently. Indeed, the court made no reference whatsoever to the plea‘s effect, or lack of it, on the court‘s ability to make efficient use of its time. As noted above, a principal reason why both we and the Sentencing Commission concluded that the district court has the power to deny a government motion is that the sentence adjustment is intended in part to reward a defendant for deciding to plead guilty early enough to permit the court, as well as the government, to reallocate its resources, and the district court is best positioned to evaluate how the plea affected it. Here, however, the court did not rest its decision on a finding that the plea came too late for the court to pivot to a more efficient use of the time previously budgeted for trial, and did not identify any inconvenience or inefficiency inflicted on the court itself.
Moreover, we see nothing in the record, or in our common experience as judges, that would support any such finding. The parties notified the court of Vargas‘s intention to plead guilty approximately one month before the scheduled trial date, and the plea was entered and accepted three weeks before that date. The court did not suggest, nor is it apparent from the record, that the court could no longer “schedule its calendar efficiently,”
Second, the district court’s conclusion that the government, contrary to its own announced assessment, had not saved resources because of the plea rests on flimsy foundations. Although the district court is not bound by the government’s motion, it must grant substantial deference to the government’s claim that the timing of the plea allowed it to avoid trial preparation because, as Congress recognized, the government “is in the best position” to make that determination. See
At the outset, we note that the guideline focuses on whether the plea came in sufficient time to permit the government “to avoid preparing for trial” and “to allocate [its] resources efficiently.” Id.
The text of
But this is not such a case. Any experienced criminal lawyer knows that preparing for a jury trial involves more work than preparing for a suppression hearing, and few federal prosecutors would fail to spend most of the last couple of weeks preceding a short trial honing their presentation. Even when “there is substantial overlap between the issues that [were] raised at the suppression hearing and those that will be raised at trial, preparation for a [suppression hearing] would not require the preparation of voir dire questions, opening statements, closing arguments, and proposed jury instructions, to name just a few examples.” United States v. Marquez, 337 F.3d 1203, 1212 (10th Cir. 2003).
To the extent that the district court had concerns about the accuracy of the prosecutor’s representations, including that a trial of Vargas would entail “additional witnesses,” App‘x 68, the proper course was to inquire into such matters. But, rather than making targeted inquiries into or factual findings about the concrete work that trial preparation and trial would entail and the potential time and cost savings (or lack thereof) brought about by Vargas’s plea, the court summarily rejected his position based on conjecture about how the government would try its case.
For example, the district court hypothesized that “the suppression hearing was probably two-thirds of the trial,” based on the court’s theory that, in addition to the witnesses who testified at the suppression hearing, the government might have had to call only one additional witness, an informant, to testify at trial, and speculated that the government might even have been able to prove its case without the informant’s testimony because Vargas had been “caught with 20 kilograms of cocaine in the trunk of her car.” App‘x 69. Trial judges have certainly been known to think that a prosecutor has overtried a case, and did not really need all the evidence that was offered. But a district court is poorly situated to make such predictions in advance of trial, and the court’s attempt to do so here only underscores that the government is better positioned to make this assessment. Even if, in the end, the
We thus agree with the Tenth Circuit that “where a defendant has filed a non-frivolous motion to suppress, and there is no evidence that the government engaged in preparation beyond that which was required for the motion, a district court may not rely on the fact that the defendant filed a motion to suppress requiring a ‘lengthy suppression hearing’ to justify a denial of the third level reduction under
Accordingly, we hold that the district court erred by denying the government’s motion without making the factual findings necessary to justify its decision to do so. Moreover, we cannot conclude that the error was harmless because the record does not clearly indicate that the district court would have imposed the same sentence absent this procedural error. Cf. United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (“Where we identify procedural error in a sentence, but the record indicates clearly that the district court would have imposed the same sentence in any event, the error may be deemed harmless, avoiding the need to vacate the sentence and to remand the case for resentencing.”) (internal quotation marks omitted). We therefore must remand for resentencing.
Having identified a procedural error that warrants resentencing, we need not address Vargas’s alternative argument that the sentence imposed is substantively unreasonable. See United States v. Tutty, 612 F.3d 128, 131 (2d Cir. 2010) (“Where there is procedural error, we may remand to the district court for resentencing without proceeding to a substantive review of the original sentence.”).
III. Reassignment of the Case to Another Judge is Unwarranted.
Finally, Vargas requests reassignment to a new judge, arguing that she will not receive a fair hearing from Judge Caproni on remand for resentencing.
“Remanding a case to a different judge is a serious request rarely made and rarely granted.” United States v. Awadallah, 436 F.3d 125, 135 (2d Cir. 2006). Absent a showing of personal bias on the part of the sentencing judge, we examine the following factors when determining whether a case should be remanded to a different judge:
- whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected[;]
- whether reassignment is advisable to preserve the appearance of justice[;] and
- whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977).
Vargas argues that the first factor weighs in favor of reassignment because Judge Caproni made statements suggesting she did not approve of the plea agreement
Vargas further argues that reassignment will preserve the appearance of justice, as Judge Caproni’s decision to “disregard the Government’s recommendation” will discourage defendants from pleading guilty because they will be unable to “place reasonable reliance on the terms of a plea agreement.” Appellant Br. 42. This argument is unavailing because, as Vargas recognizes, the district court has significant discretion in determining the appropriate sentence and is “not bound by the estimated range in a plea agreement.” United States v. Hamdi, 432 F.3d 115, 124 (2d Cir. 2005) (internal quotation marks omitted). Judge Caproni informed Vargas of this at her change-of-plea hearing and warned her that any attempts by her “attorney or anyone else” to predict her sentence could be wrong. App‘x 32-33. Although a sentencing judge must calculate the recommended guideline range accurately, and commits error by misconstruing or misapplying the Guidelines, she nevertheless retains broad discretion in imposing a sentence in accordance with the principles of sentencing expressed in
Finally, reassigning the case would “entail waste and duplication out of proportion to any gain in preserving the appearance of fairness,” Robin, 553 F.2d at 10, because Judge Caproni has presided over numerous proceedings in the case, including Vargas’s change-of-plea hearing and the two-day evidentiary hearing on her suppression motion, and is familiar with all of the facts of this case.
We are confident that, on remand, Judge Caproni will resentence Vargas consistently with the interpretation of the Guidelines set forth in this opinion and the purposes of sentencing expressed in
CONCLUSION
For the foregoing reasons, we REMAND the case and instruct the district court to VACATE its judgment and resentence the defendant.