Circuit Vacates Sentence for Failure to Correctly Apply Acceptance-of-Responsibility Guideline
In a summary order on January 2, 2018 in United States v. Reyes, the Court (Winter, Lynch, Droney) vacated and remanded a life sentence as procedurally unreasonable on the ground that the district court failed to properly apply a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The decision reiterates that a three-level reduction is mandatory under certain circumstances if the district court has already imposed a two-level reduction, and that the government must formally move for a three-level reduction in order to bind the court’s hands. The third point of acceptance of responsibility under the Guidelines is not a matter of grace or kindness by the district court. When a defendant is entitled to receive the third point, the district court is obliged to award it.
The Decision Below
The defendant, Naquan Reyes, oversaw a bank fraud conspiracy in which he created counterfeit checks, paid others to deposit them into their accounts, and then instructed them to withdraw the funds before the fraud was detected. One of the people he recruited, Nicole Thompson, began to cooperate with law enforcement after her arrest. She was later strangled in New York and found in a dumpster in Maryland. Reyes pleaded guilty to conspiracy to commit bank fraud and obstruction of justice murder, admitting that he and his coconspirators had paid someone to murder Thompson and that he had transported her body to Maryland. Reyes denied, however, that he personally had been present during the murder.
During sentencing, Reyes’s counsel withdrew a prior objection to a two-level enhancement to his criminal offense level for obstruction of justice under U.S.S.G. § 3C1.1. The sole issue was whether Reyes also was entitled to a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. Subsection (a) of that provision requires a court to apply a two-level reduction if it finds the defendant “clearly demonstrates acceptance of responsibility for his offense.” Subsection (b) requires the court to apply a three-level reduction, “upon motion of the government” indicating the defendant’s cooperation and intent to plead guilty, if the defendant qualifies for a reduction under (a) and has an offense level of 16 or greater. The government took the position that Reyes was entitled to a three-level reduction under subsection (b) but did not formally move for a reduction on that basis.
In assessing whether Reyes’s acceptance of responsibility was credible, the district court reviewed a recording between Reyes and a confidential source that seemingly contradicted his claim that he was not present at the murder. On the tape, Reyes said he did not have a lookout “do it” and “did it” himself because “it was personal.” Reyes responded to the tape by reiterating his denial. Although the government did not contest the issue, the district court found Reyes had been present and had therefore committed perjury. On that basis, the court applied a two-level reduction but withheld the third. Reyes’s resulting Guidelines range, and sentence, was life imprisonment. With the additional level reduction, his Guidelines range would have been 360 months’ to life.
The Second Circuit’s Decision
Reyes made several arguments on appeal. First, he contended that the two-level enhancement for obstruction of justice was procedurally unreasonable because it rested on the erroneous finding that he had persuaded his ex-girlfriend to lie to authorities about Thompson’s murder. Reviewing for plain error (the objection had been withdrawn below; the district court found forfeiture, not waiver, based on this decision), the Court found that even if Reyes had not expressly asked his ex-girlfriend to lie, the district court could reasonably determine he had encouraged her to do so or at least provided her information with the intent that she would convey it to authorities, based on the instructions themselves and his attempts to mask the call from authorities.
Reyes also argued that his trial counsel was constitutionally ineffective in withdrawing and failing to renew his objection to the obstruction-of-justice enhancement. The Court declined to review the issue on direct appeal, noting the preference for collateral review of ineffective assistance claims to give counsel an opportunity to defend himself.
Finally, Reyes argued that the district court’s application of the acceptance of responsibility Guideline was both substantively and procedurally unreasonable. With respect to the former, Reyes claimed there was no factual basis for the court’s perjury finding because his admission on tape that he “did it” himself was too vague and could have referred to paying someone to commit the murder or disposing of the body. The Court rejected that contention because Reyes already had admitted that he and others had paid for Thompson’s murder and that he personally had been involved in its disposal.
With respect to procedural unreasonableness, Reyes claimed that the district court was required to impose a three-level reduction under U.S.S.G. § 3E1.1(b) because it found he was entitled to a reduction under subsection (a), his offense level was at least 16, and the government had agreed that he should receive the full reduction. On this point the Court agreed, reasoning that under settled precedent, the district court had no discretion to withhold the additional level reduction under subsection (b). While the government had not formally moved for a reduction under subsection (b)—“one of the three necessary predicates under subsection (b)”—the Court found that the government had waived any such argument by failing to raise it on appeal. At the same time, the Court observed that the district court had “never inquired whether the Government formally moved for a one-level reduction,” and vacated not with instructions to the court to apply the three-level reduction, but “to allow the district court to make the pertinent findings under § 3E1.1(b) and to determine whether Reyes qualifies for the final one-level reduction.” Op. at 8 (emphasis added).
There are some aspects to this case that take it out of the heartland of Guidelines sentencings and make it worthy of review, notwithstanding its non-precedential nature. First, the defendant still received credit for acceptance of responsibility even though he also received an enhancement for obstruction of justice. Commentary to U.S.S.G. § 3E1.1 provides that “[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1 (comment n.4). That the defendant was still being considered for acceptance of responsibility indicated that the case was among the “extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” Second, the district court’s desire to find a middle ground—to give the defendant some credit but for acceptance of responsibility but not all of the credit he was due—may have been a reflection of the district court’s uncertainty about whether this defendant really merited credit for acceptance of responsibility at all given that he conspired to murder a witness to the bank fraud conspiracy that he led. The decision to give a reduction of two levels but not three may have seemed like rough justice, but the rigid mechanics of the Guidelines do not permit it. Third, the case is a reminder that at one point in time, the third point belonged to the district court, not to the prosecutor. In other words, the provision did not include a requirement of a government motion. This was changed by the Feeney Amendment in 2003. See Margareth Etienne, Acceptance of Responsibility and Plea Bargaining Under The Feeney Amendment, 16 No. 2, Federal Sentencing Reporter 109 (December 2003). This change in the law was a further shift in the balance of power between the prosecutor and the trial court. In this matter, the government did not formally move for a one-level reduction, but the government’s failure was not raised on appeal, and therefore was forfeited.
-By Brandon Trice and Harry Sandick