As Steve Sady explains in his post on the Ninth Circuit Blog, 7/27/11, the Second and Fourth Circuits have now rejected the view that the government can deny defendants a third level off their guidelines solely because they didn't accept a plea agreement with a waiver of appeal and instead pled guilty "straight up" to all charges. This has created a split with other circuits, including the Ninth Circuit's 2-1 opinion in U.S. v. Johnson, making the issue likely to attract attention in the Supreme Court.
As Sady recommends, defense attorneys should be arguing in the district courts that Johnson is limited to its facts and that the government may refuse to move for the third level reduction only on the basis that defendant's late plea caused it to prepare for trial. Alternatively, in the right circumtances, we should be asking that the court sentence consistent with the 3-level reduction as part of the court's discretion to impose an appropriate sentence under 18 U.S.C. §3553(a).
Defendants who have been denied a third level acceptance reduction on any ground other than that the government had to prepare for trial should consider an appeal in which they could request en banc review by the full Ninth Circuit or the Supreme Court. As a matter of policy (and common sense), a defendant who pleads guilty promptly and accepts responsibility for his or her conduct should not be forced into an unfavorable plea agreement just to obtain the full 3-level guideline reduction. With the Second and Fourth Circuit recent decisions on our side, the Ninth's Johnson decision may turn around.
As Sady recommends, defense attorneys should be arguing in the district courts that Johnson is limited to its facts and that the government may refuse to move for the third level reduction only on the basis that defendant's late plea caused it to prepare for trial. Alternatively, in the right circumtances, we should be asking that the court sentence consistent with the 3-level reduction as part of the court's discretion to impose an appropriate sentence under 18 U.S.C. §3553(a).
Defendants who have been denied a third level acceptance reduction on any ground other than that the government had to prepare for trial should consider an appeal in which they could request en banc review by the full Ninth Circuit or the Supreme Court. As a matter of policy (and common sense), a defendant who pleads guilty promptly and accepts responsibility for his or her conduct should not be forced into an unfavorable plea agreement just to obtain the full 3-level guideline reduction. With the Second and Fourth Circuit recent decisions on our side, the Ninth's Johnson decision may turn around.
