BLOG BULLETS:

• Remember that it’s you doing the government a favor when you offer a conditional plea, not them doing you a favor by accepting the offer.
• A new guidelines amendment overrules a bad Ninth Circuit case and states that the government can’t withhold the third acceptance of responsibility point simply because a defendant won’t waive his right to appeal.
• This amendment ought to prevent the government from withholding the third point even if the defendant has to sit through a bench trial because the government won’t agree to a conditional plea.

NOW THE BLOG:

Last year, I put up a post explaining why the government isn’t giving you anything by agreeing to a conditional plea. (See “They’re Doing You a Favor by Agreeing to a Conditional Plea? Wait a Minute!” through the September 2012 link at the right.) I explained that the defendant always retains the option of simply sitting through a bench trial to preserve the issue, and that the defendant would still be entitled to acceptance of responsibility if that was what he or she had to do. One thought some of you may have had in response is that the defendant would lose the third acceptance of responsibility point by doing that. And there’s actually a bad Ninth Circuit case – United States v. Johnson, 581 F.3d 994 (9th Cir. 2009) – that went even further and held that the government can refuse to move for the third acceptance of responsibility point anytime the defendant refuses to sign a waiver of appeal. See id. at 1002.

Putting aside the issue of whether the small additional sentence reduction you get from this third point is worth giving up a viable appellate issue and whether the government wouldn’t at some point back down if you push them (as they always have in the cases I’m aware of), there’s a new guideline provision taking effect this Friday, November 1, with the new 2013 guidelines, that expressly rejects Johnson and will help us in this situation. The amendment adds a sentence to Application Note 6 of the acceptance of responsibility guideline that states: “The government should not withhold such a motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal.” U.S.S.G. § 3E1.1, comment. (n.6) (2013) (emphasis added). The “Reason for the Amendment” explaining the amendment – which can be found in Appendix C of your new guidelines manual, but also in the guidelines amendments summary linked here – notes a circuit split that has the Johnson case on one side, compare Johnson, 581 F.3d at 1002-03, with United States v. Divens, 650 F.3d 343, 348 (4th Cir. 2011), and indicates the amendment is intended to take the side of the split against Johnson. SoJohnson is no longer good law and the government can’t refuse to make a motion for the third acceptance of responsibility point just because the defendant won’t waive his right to appeal.

This amendment doesn’t directly address the worst-case scenario I posed in my post last year where you sit through a bench trial doing nothing because the government won’t agree to a conditional plea. But I offer two thoughts about that. First, I doubt very much that the government’s going to continue to reject a conditional plea when push comes to shove and it becomes clear you’ll otherwise get the same appeal option by just sitting through a wasteful bench trial. The government would just be biting off its nose to spite its face, to use one of my mother’s old expressions, and they’d be biting off not just their own nose but the nose of the judge whose time they were wasting in addition to their own.

Second, even if the government did persist in its refusal, the amendment would seem to mean you still get the third point. The underlying premise of the amendment is that the government can’t withhold the motion just because the defendant won’t give up his right to appeal, and that ought to extend to cases where the trial takes place only because the government won’t agree to the alternative of a conditional plea. It seems clear that the new application note isn’t limited to sentence appeals, because the Johnson case the Commission rejected was about a defendant reserving his right to appeal a pretrial suppression motion, not just a sentence. If the government’s resources get used in a trial that’s the government’s fault because it won’t take the conditional plea option, that doesn’t seem to be an “interest . . . identified in § 3E1.1.” Section 3E1.1(b) talks about the defendant “permittingthe government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently.” (Emphasis added.) If the government doesn’t take advantage of a defendant’s offer to enter a conditional plea, it’s thegovernment that hasn’t permitted itself to avoid preparing for trial and the government that hasn’t permitted itself and the court to allocate resources efficiently, not the defendant.

So remember that a conditional plea is us doing the government a favor, not it doing us a favor. And this new guidelines amendment makes that even more clear.