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Ninth Circuit: Federal Sentencing Court Must Hear Defendant Before Determining If Acceptance of Responsibility Reduction Applies

by David Reutter

The U.S. Court of Appeals for the Ninth Circuit held that a “sentencing court erred by concluding that it could not first hear from the defendant before determining whether a reduction for acceptance of responsibility was warranted under the Sentencing Guidelines.” The Court concluded the misapprehension of law was plain error that requires resentencing.

Before the Court was the appeal of Jeffrey Green. His apartment in Anchorage, Alaska, was subject to a search warrant executed on June 3, 2016, by a group of police officers. They found a revolver in Green’s pocket and two pistols in a safe. Both pistols had been reported stolen.

As Green had a long history of felony convictions, he was charged with a single count of possession of a firearm as a felon in violation of 18 U.S.C. § 922(G)(1).

Green agreed to a plea agreement in which he admitted to possessing the revolver in his pocket but not to all conduct in the indictment. A pre-sentence report concluded Green was not entitled to a reduction of sentence for accepting responsibility under Sentencing Guidelines § 3E1.1(a) because he had not admitted possessing the two pistols found in the safe.

The district court held an evidentiary hearing to determine if Green possessed those firearms.

The Government admitted a recording of a telephone call Green made after his arrest. In that call, Green was concerned about whether police had gained entry to the safe and responded, “Oh, my God,” when informed they had. Based on this, the court found Green possessed those firearms.

At another hearing, the district court concluded it could not hear from Green before it determined applicability of the reduction for acceptance mitigator. The court found the mitigator did not apply, which put Green at a Sentencing Guidelines range of 100 to 120 months as opposed to 77 to 96 months if the mitigator had been applied. Green was sentenced to 108 months in prison, and he appealed.

The Ninth Circuit framed the issue as follows: “Must a district court decide on a defendant’s eligibility for an acceptance-of-responsibility reduction in his Guidelines level before listening to the defendant’s allocution? Our answer is ‘No.’”

Guidelines § 3E1.1(a) provides for reducing a defendant’s offense level by two points if the district court determines the defendant has “clearly demonstrate[d] acceptance of responsibility for his offense.” The goal is to “reward defendants who are genuinely contrite.” United States v. McKinney, 15 F.3d 849 (9th Cir. 1994).

The Guidelines “suggest that a guilty plea supported by truthful admissions … creates a presumption that the defendant will receive the acceptance-of-responsibility reduction,” the Court explained as per Guidelines Manual § 3E1.1 cmt. n3.

The Court observed that the district court failed to “cite any specific authority to support its premise that a sentencing court must reach its conclusion regarding acceptance of responsibility before hearing from the defendant.” The Court explained that neither “the Guidelines nor the pertinent case law prefers ignorance over appropriate information collection and considered judicial reflection before calculating the applicable Guidelines range.” In fact, if the sentencing court has made up its mind without hearing from the defendant, the “defendant can hardly demonstrate sincere contrition,” the Court noted.

Since Green conceded that he did not adequately challenge the district court’s allocution ruling in that court, so plain error review applies. Under that review, relief may be granted where (1) the district court’s error is contrary to the law at the time of the appeal, (2) affects defendant’s substantial rights, and (3) “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Depue, 912 F.3d 1227 (9th Cir. 2019).

The Court concluded that all three factors were satisfied. The district court’s decision was “undoubtedly contrary to law” since “no authority supports” its conclusion. The Court also determined that the error affected his “substantial rights and seriously affected the fairness of the judicial proceedings.” Had the district court considered his allocution, there is a reasonable probability he would have received a lower sentence, the Court stated.

The clear error regarding the law, together with the reasonable probability Green would have received a lesser sentence, “seriously affected the fairness, integrity, or public reputation of judicial proceedings.”

Accordingly, the Court vacated Green’s sentence and remanded for resentencing. See: United States v. Green, 2019 U.S. App. LEXIS 30033 (9th Cir. 2019) 

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