10-493-cr
United States v. Lee
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2010
(Submitted: June 17, 2011 Decided: July 26, 2011)
Docket No. 10-493-cr
UNITED STATES OF AMERICA,
Appellee,
v.
CHRIS LEE,
Defendant-Appellant.
Before:
B.D. PARKER and CHIN, Circuit Judges, and
KORMAN, District Judge.*
Appeal from a February 17, 2010, judgment of the
United States District Court for the Eastern District of New
York (Townes, J.) convicting defendant-appellant Chris Lee,
following his guilty plea, of narcotics violations and
sentencing him principally to 235 months' imprisonment.
VACATED and REMANDED.
BARRY KRINSKY, Law Office of Barry
Krinksy, Brooklyn, New York, for
Defendant-Appellant.
*
The Honorable Edward R. Korman, United States District
Judge, Eastern District of New York, sitting by designation.
SUSAN CORKERY and DANIEL SPECTOR,
Assistant United States
Attorneys, for Loretta E. Lynch,
United States Attorney for the
Eastern District of New York,
Brooklyn, New York, for
Appellee.
CHIN, Circuit Judge:
In this case, defendant-appellant Chris Lee was
indicted for narcotics violations in connection with a
scheme to import cocaine. He pleaded guilty and was
sentenced principally to a term of 235 months' imprisonment.
On appeal, he contends that his sentence was procedurally
and substantively unreasonable. See United States v.
Cavera, 550 F.3d 180, 187-89 (2d Cir. 2008) (en banc). We
agree, in part, and therefore vacate the sentence and remand
for resentencing.
BACKGROUND
On September 26, 2007, Lee pleaded guilty, without
a plea agreement, to all four counts of an indictment
charging him with narcotics violations. The Probation
Department prepared a presentence report (the "PSR"). Lee
made certain objections to the PSR's findings, including a
finding that he had threatened to kill certain drug couriers
who he feared might cooperate with law enforcement officers.
A Fatico hearing was scheduled for July 22, 2008.
The night before, Lee withdrew all but one of his
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objections. He continued to deny that he had threatened to
kill the couriers. The Fatico hearing was rescheduled and
limited to this issue. At the hearing, the district court
found that Lee had made the threats.
At sentencing, although the government agreed to
recommend a two-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a), it refused to move
for the third-point reduction available under § 3E1.1(b)
because, as it explained to the district court:
[T]he defendant required the government
to undergo extensive preparation for a
Fatico hearing on multiple sentencing
issues, and, after the government had
undergone such preparation, the defendant
elected to proceed with a Fatico hearing
on narrower issues. The preparation
involved with respect to the initial,
broader Fatico hearing involved multiple
witnesses and was akin to preparing for
trial . . . .
Lee requested the third-point reduction, but the
district court denied the request, noting that the
government had not moved for the third-point reduction and
that Lee had not argued that the government's decision not
to make the motion was "without good faith." The court
thereafter sentenced Lee to 235 months' imprisonment -- the
bottom of the advisory guidelines range.
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DISCUSSION
This Court may "review sentences only for
'reasonableness,' a deferential standard limited to
identifying abuse of discretion." United States v. Jones,
531 F.3d 163, 170 (2d Cir. 2008) (citation omitted).
Reasonableness review consists of two prongs: "first, we
must 'ensure that the district court committed no
significant procedural error,' and second, if we find the
sentence to be 'procedurally sound,' we must 'take into
account the totality of the circumstances' and 'consider the
substantive reasonableness of the sentence.'" Id. (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)).
A. Procedural Reasonableness
Lee argues that the district court committed
procedural error by declining to grant a third-point
reduction for acceptance of responsibility under U.S.S.G. §
3E1.1(b), contending that the government's decision not to
move for the third-point reduction was improper. We agree.
Section 3E1.1 provides that a criminal defendant
may receive up to a three-level reduction in the offense
level calculation. "If the defendant clearly demonstrates
acceptance of responsibility for his offense," the offense
level may be reduced by two points. § 3E1.1(a). An
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additional one-level reduction may be granted where certain
criteria are met:
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.
§ 3E1.1(b).
Hence, § 3E1.1(b) gives the court authority to
award a third-point reduction "upon motion of the
government." § 3E1.1(b). As the case law recognizes, a
government motion is "a necessary prerequisite" to the
granting of the third point. United States v. Sloley, 464
F.3d 355, 359 (2d Cir. 2006) (citing United States v.
Moreno-Trevino, 432 F.3d 1181, 1185-86 (10th Cir. 2005);
United States v. Wattree, 431 F.3d 618, 623-24 (8th Cir.
2005); United States v. Smith, 429 F.3d 620, 628 (6th Cir.
2005)); see U.S.S.G. § 3E1.1 cmt. n.6 ("[A]n adjustment
under subsection (b) may only be granted upon a formal
motion by the Government at the time of sentencing.").
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In two circumstances, however, a sentencing court
is permitted to grant the additional point reduction despite
the absence of a government motion: (1) where the
government's refusal to move is based on an unconstitutional
motive, or (2) where a plea agreement leaves the decision to
move to the government's discretion and the government acts
in bad faith. Sloley, 464 F.3d at 360, 361.
We hold that the government's refusal to move for
a third-point reduction under § 3E1.1(b) in this case was
based on an unlawful reason, as the government could not
refuse to move on the grounds that it had been required to
prepare for a Fatico hearing.
First, the plain language of § 3E1.1(b) refers
only to the prosecution resources saved when the defendant's
timely guilty plea "permit[s] the government to avoid
preparing for trial." U.S.S.G. § 3E1.1(b) (emphasis added).
Here, although Lee contested certain aspects of the PSR and
requested a Fatico hearing, it is undisputed that his guilty
plea was timely and spared the government from "preparing
for trial." A Fatico hearing is not a trial, and Lee's
post-plea objections to the PSR did not require the
government to prepare "for trial." Under the plain language
of § 3E1.1(b), then, the government's refusal to move for
the third-point reduction was not justified, notwithstanding
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its preparation for a Fatico hearing that proved to be
narrower than anticipated. 1
Second, the Application Notes for § 3E1.1
similarly refer only to the government's ability "to
determine whether the defendant has assisted authorities in
a manner that avoids preparing for trial." § 3E1.1 cmt. n.6
(emphasis added). The Notes do not refer to resources saved
by avoiding preparation for a Fatico hearing or any other
proceeding. Hence, the Notes confirm that the government
could not properly withhold its motion merely because it was
required to prepare for a Fatico hearing. See Stinson v.
United States, 508 U.S. 36, 38 (1993) ("[C]ommentary in the
Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a
federal statute, or is inconsistent with, or [is] a plainly
erroneous reading of, that guideline.").
Third, a defendant -- even one who pleads guilty
-- has a due process right to reasonably contest errors in
the PSR that affect his sentence. United States v.
1
Other circuits have suggested that "[a]s amended, the
touchstone of § 3E1.1 is no longer trial preparation, but rather
the presence of a government motion for the third-level
reduction." United States v. Beatty, 538 F.3d 8, 16 (1st Cir.
2008); see also United States v. Johnson, 581 F.3d 994, 1002 (9th
Cir. 2009) ("When § 3E1.1(b) speaks of conserving government
resources in the 'prosecution' of the defendant's 'misconduct,'
it means more than simply trial preparation."). While we agree
that the language of § 3E1.1(b) requires a government motion, it
still refers to "permitting the government to avoid preparing for
trial." U.S.S.G. § 3E1.1(b) (emphasis added).
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Eschman, 227 F.3d 886, 890 (7th Cir. 2000) (holding that
"criminal defendants . . . have a due process right to be
sentenced on the basis of reliable information"). A
defendant should not be punished for doing so. If there is
a good faith dispute as to the accuracy of factual
assertions in the PSR, the defendant's request that the
dispute be resolved is not a permissible reason for the
government to refuse to make the § 3E1.1(b) motion, even if
resolution of the dispute requires a Fatico hearing. The
government's refusal to make the motion under these
circumstances is "unlawful and grounds for reproach" because
it ignores the language of the guideline, its purpose, and
the intent of Congress. Sloley, 464 F.3d at 360.
The court, not the government, imposes sentence,
and the court is entitled to a full and accurate record –-
as are the parties -- before sentence is imposed. As long
as the defendant disputes the accuracy of a factual
assertion in the PSR in good faith, the government abuses
its authority by refusing to move for a third-point
reduction because the defendant has invoked his right to a
Fatico hearing.
A recent decision of the Fourth Circuit is
instructive. In United States v. Divens, No. 09-4967, 2011
WL 2624434 (4th Cir. July 5, 2011), the defendant refused to
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sign a plea agreement waiving his right to appeal. The
government declined to move for the third-point reduction
under § 3E1.1(b) on the grounds that the defendant's refusal
to sign an appeal waiver would mean that the government
would have to expend resources to defend an appeal. Id. at
**1, 4.
Relying on the plain language of § 3E1.1(b) and
its commentary, the Fourth Circuit held that the government
could not refuse to make the motion on this basis. Id. at
*5. The court held that § 3E1.1(b) "instructs the
Government to determine simply whether the defendant has
'timely' entered a 'plea of guilty' and thus furthered the
guideline's purpose in that manner. It does not permit the
Government to withhold a motion for a one-level reduction
because the defendant has declined to perform some other act
to assist the Government." Id. These observations apply
with equal force here.
B. Substantive Reasonableness
In light of our ruling above, we do not reach the
issue of substantive reasonableness, but we do reject Lee's
arguments regarding: (1) the disparity between his sentence
and those imposed on his co-defendants, (2) his lack of a
prior criminal record, and (3) his medical condition.
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Regarding the alleged sentencing disparity, we
note that the district court addressed Lee's argument,
identifying several key respects in which he and his co-
defendants were not similarly situated. Notably, Lee (1)
was the leader of the organization, (2) paid a co-defendant
not to cooperate with law enforcement authorities, and (3)
threatened to kill the couriers. See United States v.
Fernandez, 443 F.3d 19, 28 (2d Cir. 2006) (holding that
"disparity between non-similarly situated co-defendants is
not a valid basis for a claim of error under 18 U.S.C. §
3553(a)(6)").
As for Lee's criminal history, the district court
carefully considered his personal circumstances and weighed
his law-abiding past against the fact that his present
crimes "were ongoing, . . . not just [a] one time thing."
Finally, with respect to Lee's medical condition,
the parties discussed whether the Bureau of Prisons was
capable of addressing his health needs, and the district
court explicitly stated that it had considered the statutory
factors. See Fernandez, 443 F.3d at 30.
CONCLUSION
For the foregoing reasons, the sentence is VACATED
and the case is REMANDED for resentencing.
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