In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2616
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAYMIE T. M OUNT,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 10 CR 164—Jane E. Magnus-Stinson, Judge.
A RGUED F EBRUARY 29, 2012—D ECIDED A PRIL 12, 2012
Before B AUER, R OVNER, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Jaymie Mount disappeared while
on release awaiting trial on a charge of possession of a
gun by a felon, in violation of 18 U.S.C. § 922(g)(1). He
was captured nearly three months later and pleaded
guilty two weeks before his trial was set to begin. At
sentencing, the district court granted him a two-level
reduction in his offense level under the U.S. Sentencing
Guidelines for acceptance of responsibility. See U.S.S.G.
2 No. 11-2616
§ 3E1.1(a). In keeping with the plea agreement, the gov-
ernment moved for Mount to receive an additional one-
level reduction, because it was satisfied that he had
given prosecutors timely notice of his intention to plead
guilty. See id. § 3E1.1(b). The district court denied that
motion, however, citing Mount’s flight as its reason.
Mount appeals, arguing that the additional one-level
reduction is mandatory once the government determines
that the criteria spelled out in § 3E1.1(b) are satisfied
and it makes the necessary motion. We conclude that
Mount is correct, and we thus remand for resentencing.
I
In mid-2010 the police received reports that Mount,
who had a felony conviction on his record, had dis-
charged firearms on several occasions and had been
seen carrying an AK-47 assault weapon. They decided to
investigate and obtained a search warrant for his home.
The search turned up eight firearms, which led to Mount’s
being charged by complaint in federal court with the
offense of possession of a gun by a felon. See 18 U.S.C.
§ 922(g)(1). He was then released on his own recog-
nizance on the condition that he stay in a residential
facility operated by Volunteers of America. Mount com-
plied for a time, but five months later, after electing
to waive indictment and notifying the district court that
he would plead guilty to an information, Mount left
the facility (ostensibly to visit his grandmother) and
did not return. A warrant was issued for his arrest.
Nearly three months later, the Marshals Service
tracked him down. His release was revoked, and his
No. 11-2616 3
retained lawyers were permitted to withdraw based on
a breakdown in communication with Mount. The
district court appointed substitute counsel and set trial
for June 20, 2011. At a status conference in May, the
parties told the judge that they were in the process of
negotiating a plea agreement. At that point, the Assistant
U.S. Attorney was threatening to add a charge for
failure to appear, but that never happened. Instead, just
as he had promised before he became a fugitive, Mount
agreed on June 6 to plead guilty to the pending informa-
tion charging him with the § 922(g)(1) violation. This
was two days before the final pretrial conference was
to occur, and two weeks before the scheduled trial date.
The plea agreement represents that Mount had “timely
notified the government of his intention to enter a plea
of guilty, thereby permitting the government and the
court to allocate their resources efficiently.” On that
basis the government promised to move for an addi-
tional one-level reduction in Mount’s offense level
under U.S.S.G. § 3E1.1(b) if the district court decided
that he was entitled to the two-level reduction for accep-
tance of responsibility provided by § 3E1.1(a).
At sentencing, the district court did award Mount
the two-level reduction, and so, in keeping with the
plea agreement, the AUSA moved for the third level
under § 3E1.1(b). When pressed, however, the AUSA
hedged a bit when explaining the reason for doing so:
THE COURT: And what is the basis for that motion?
[AUSA]: Your Honor, we could have filed another
felony in the case, and that was one of our points
4 No. 11-2616
of negotiation with him, which I think for a time,
he didn’t believe we could file based on a walk-
away from the [Volunteers of America residential
facility]. But case law showed that we could, and
that would have—that would have made an addi-
tional five-year penalty for him to be at least fac-
ing. I don’t know what would have happened ulti-
mately, but he did agree to go ahead and continue
through with the resolution that had been started
really by his prior lawyer; and so, saving the Gov-
ernment some resources in having to call [Volunteers
of America] people and having to do an additional
and probably separate trial because probably that
wouldn’t have come in in a felon in possession trial.
THE COURT: Okay. So the trial you were avoiding
preparing for was on a different case, not this case.
[AUSA]: A potential different case.
After this exchange, the court rejected the additional
reduction under § 3E1.1(b) with this explanation:
[T]he court is going to deny the motion for an addi-
tional level decrease, because the sentencing guide-
line calls for the efficient allocation of resources. And
when Mr. Mount walked away, he is getting a break
with the charge not being filed. And the Govern-
ment has agreed to that as part of the plea. But also,
having to use the United States marshal service to
apprehend him is not an efficient use of the Govern-
ment’s resources.
Without the additional reduction in offense level, the
court concluded that Mount’s offense level was 26 and
No. 11-2616 5
his criminal history category was IV. This yielded an
advisory guideline range of 92 to 115 months. The
court chose a sentence of 100 months, explaining that
Mount’s flight warranted a term long enough to
promote his respect for the law and that his § 922(g)(1)
offense was serious and required protection of the public.
II
On appeal, Mount argues that the court erred when
it took the position that it had the power to refuse to
reduce his offense level under § 3E1.1(b). In his view, the
additional adjustment is mandatory if the government
moves for it and the other requirements of the provision
are met. The government counters with the well-known
fact that the guidelines are advisory. This means, it con-
tends, that the court may deny a motion under § 3E1.1(b)
for any of a number of reasons. Recognizing that
Mount’s guideline range would have been 84 to 105
months had the extra level been awarded, the govern-
ment does not argue that any possible error is harmless.
Nor does it argue that review should be for plain
error since Mount did not specifically object to the
§ 3E1.1(b) ruling.
Our starting point must be with the text of the guideline.
United States v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005).
Since the 2003 amendment to § 3E1.1, the text has read
as follows:
(a) If the defendant clearly demonstrates acceptance
of responsibility for his offense, decrease the offense
level by 2 levels.
6 No. 11-2616
(b) 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 inves-
tigation 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 gov-
ernment and the court to allocate their resources
efficiently, decrease the offense level by 1 additional
level.
The question is whether, in cases where the court has
determined that (1) the defendant qualifies for a decrease
under subsection (a), (2) the defendant’s offense level is
greater than 16 before the operation of subsection (a), and
(3) the government makes the motion described in sub-
section (b), the additional one-level downward adjust-
ment remains discretionary with the court, or if—strictly
as a matter of properly computing the advisory guideline
range—it is mandatory. Obviously, once the advisory
guideline range is determined, the court retains discre-
tion to apply the factors outlined in 18 U.S.C. § 3553(a) to
choose a proper sentence. But it must begin, as the Su-
preme Court has reminded us, with the right reference
point from the guidelines. See, e.g., Gall v. United States,
552 U.S. 38, 49 (2007).
We have not had occasion squarely to address this
question in the past. The government argues that our
decision in United States v. Anderson, 604 F.3d 997 (7th Cir.
No. 11-2616 7
2010), implicitly resolves the issue in its favor, but we
see important distinctions between the present case
and Anderson. Critically, in Anderson the government
refused to move for the additional reduction, despite a
promise to do so in the plea agreement. In reviewing
for plain error the defendant’s claim that the agreement
had been breached, we commented that affirming
the sentence would not create a manifest miscarriage
of justice because the sentencing judge “would have
exercised his discretion to avoid awarding Anderson
the benefits of § 3E1.1(b).” Id. at 998, 1002-03. That is a
thin reed, we think, for the government’s position. The
defendant had failed to object when the prosecutor did
not move for the third acceptance point. Id. at 1000. In
discussing whether that omission might have been strate-
gic, which would have implied that the issue was not
just forfeited, but actually waived, the court speculated
that defense counsel might have guessed that an objec-
tion “would not have advanced Anderson’s cause by
much” because he had waited until the fourth day of trial
to accept a two-week-old plea proposal and “may
have anticipated that the district court would also
reach this reasonable conclusion.” Id. at 1002.
The government reads that passage as authority for
the proposition that whether to award the additional
one level is up to the court, but that is not what the
court said. Indeed, there is a much more straight-
forward reading: that the panel recognized that the gov-
ernment itself was well within its rights on those facts
to refuse to make the motion, since the defendant did
not live up to his end of the bargain, and acceptance of
8 No. 11-2616
a plea four days into trial does not save anyone any
time. It is also possible that the court in Anderson was
simply acknowledging the plausibility of the govern-
ment’s contention that defense counsel “stayed quiet
because he sought to divert the court’s attention from
whether any § 3E1.1 adjustment for acceptance of re-
sponsibility was appropriate.” Anderson, 604 F.3d at
1001. Anderson’s plea agreement, like Mount’s, made
the government’s promise to move for a third point
contingent on the district court’s approval of the first
two points. Id. at 999. Given that, the court’s discussion
of the sentencing judge’s likely reaction to a claim of
breach might better be read not as saying that the
judge had discretion to deny the subsection (b) motion,
but instead as saying that the judge might have re-
acted to a quibble over the third point by questioning
whether any adjustment at all for acceptance was war-
ranted. Finally, it was clear in Anderson that this dispute
was immaterial, because the sentencing court there
made it clear that it was prepared to impose the 10-year
statutory maximum no matter what. Id. at 1002-03.
The government also believes that United States v.
Leahy, 464 F.3d 773 (7th Cir. 2006), supports its position.
There the district court refused to give defendant Duff
(one of several co-defendants) any reduction at all
for acceptance of responsibility. After citing Leahy for
the well-worn proposition that a reduction under § 3E1.1
does not follow automatically from a guilty plea, the
government quotes this sentence from the opinion:
“Guideline § 3E1.1 provides that a court is to give a two-
point reduction if the defendant ‘clearly demonstrates
No. 11-2616 9
acceptance of responsibility for his offense,’ and that a
court may give an additional point if the acceptance
is timely.” Id. at 791. But the government assumes
that the word “may” was meant here to signal untram-
meled discretion. That word, however, would be just
as appropriate if the word “may” was meant only to
signal that the extra point would not always be forth-
coming, because the government does not always make
the necessary motion. Moreover, Duff was sentenced
under the 1998 version of § 3E1.1, which did not make
the third point contingent on a government motion. In
short, we do not find either Anderson or Leahy to be of
too much help here.
For his part, Mount refers us to United States v. Deberry,
576 F.3d 708 (7th Cir. 2009). Although Deberry does not
explicitly endorse Mount’s position on subsection (b), it
provides some support for it. In Deberry the issue was
whether the government could refuse to move for a
third acceptance point if the defendant would not agree
to waive his right to appeal. Id. at 711. Stressing the
breadth of the government’s discretion on this point,
we said yes, noting that the prosecutor is entitled to
withhold a subsection (b) motion so long as that deci-
sion does not rest on an invidious ground or on a
reason unrelated to a legitimate governmental objective.
Id. The opinion observed that “[s]ubsection (b) confers
an entitlement on the government: if it wants to give
the defendant additional credit for acceptance of respon-
sibility, perhaps to induce additional cooperation, and
can satisfy the criteria in the subsection, it can file a
motion and the defendant will get the additional
10 No. 11-2616
one-level reduction in his offense level, though again
this may not determine his actual sentence.” Id. at 710
(emphasis in original). The government responds to this
by accusing Mount of placing undue emphasis on the
word “will” in this passage, but it does not explain why
its reading of Deberry is preferable. Mount counters
by noting that it was this court that italicized the
word “will,” not Mount.
These tea leaves are a little too cryptic for us. In the
end, with one important exception that we discuss at
the end of this opinion, this is all there is. Returning to
the language of the guideline, we come back to the point
we noted earlier: since 2003 there have been essentially
three requirements under the current text of § 3E1.1(b):
(1) a decision that the defendant qualifies for the first
two levels under subpart (a); (2) an offense level of 16 or
greater before subpart (a) is applied; and (3) a government
motion certifying assistance through a timely plea. Before
the 2003 amendment to the guideline, the third of those
criteria did not exist. What did not change was the com-
mand to “decrease the offense level by 1 additional level”
if all of the subsection (b) conditions were met. The lan-
guage just quoted, we have held, is mandatory: subsec-
tion (b) “directs rather than allows the sentencing court
to reduce the defendant’s offense level if the qualifying
conditions are met.” United States v. Townsend, 73 F.3d
747, 755 (7th Cir. 1996). And we are not alone. Every
circuit to consider the matter has also adopted this
reading of the pre-amendment version of subsection (b).
See, e.g., United States v. Rood, 281 F.3d 353, 357 (2d
Cir. 2002); United States v. Rice, 184 F.3d 740, 742 (8th
No. 11-2616 11
Cir. 1999); United States v. Tello, 9 F.3d 1119, 1124 (5th Cir.
1993).
The 2003 amendment left intact the language that,
according to Townsend, gives § 3E1.1(b) its mandatory
character, once the necessary conditions are satisfied.
(Indeed, this is how the Guidelines normally work: once
the court finds that a certain quantity of drugs was in-
volved, for example, it has no discretion to assign an
offense level that corresponds to a different quantity.
From that perspective, Mount’s argument is a straight-
forward one.) In our view, that means that the correct
interpretation of the current version of the guideline is
that it retains its nondiscretionary character. If the con-
ditions are satisfied, the one-level downward adjust-
ment must be awarded. This reading is consistent
with the reading that is given to U.S.S.G. § 3C1.1, which
tells sentencing courts to “increase the offense level by
2 levels” if the criteria for finding obstruction of justice
are met. This text is understood to leave the sentencing
court with no discretion as it calculates the advisory
guideline offense level. United States v. Zaragoza, 123 F.3d
472, 485-86 (7th Cir. 1997). Here again, all of the other
circuits take the same position. See, e.g., Hall v. United
States, 46 F.3d 855, 859 (8th Cir. 1995); United States v.
Velgar-Vivero, 8 F.3d 236, 242 (5th Cir. 1993); United States
v. Friedman, 998 F.2d 53, 58 (2d Cir. 1993). Obstruction
of justice is in many ways the flip side of acceptance
of responsibility, and so it is not surprising that these
two guidelines should be treated in the same way.
We acknowledge that § 3E1.1(b) also mentions the
efficient allocation of the court’s resources, and so one
12 No. 11-2616
might wonder whether that fact is enough to give the
court discretion over the one-level adjustment even
after the express criteria of the guideline are satisfied.
Aside from the fact that the court in Mount’s case was
not worried about its own resources—it spoke only
of the wasteful use of the Marshals Service, which is
an agency within the Department of Justice whose
interests ought to be addressed by the U.S. Attorney’s
Office—this fact fails to take into account the language
that Congress chose for the 2003 amendment to the guide-
lines (and it was Congress that adopted this particular
language, not the Sentencing Commission). See Pros-
ecutorial Remedies and Other Tools to End the Exploita-
tion of Children Today Act of 2003 (PROTECT Act), Pub.
L. No. 108-21, Title IV, § 401(g), 117 Stat. 650.
Although we would defer to the application notes to
the guideline if they shed some light on this, see Stinson
v. United States, 508 U.S. 36, 42-43 (1993), they are incon-
clusive at best. On the one hand, Application Note 5
says that a sentencing judge is in a “unique position” to
evaluate acceptance of responsibility, and so the judge’s
determination is entitled to “great deference.” But that
point applies with full force to the court’s assessment of
the defendant’s eligibility for the two-level adjustment
under § 3E1.1(a), which is a prerequisite for the addi-
tional one level. The Application Note is silent about
subpart (b). Application Note 6 is no better. It clarifies
that a sentencing judge is forbidden to give the subsec-
tion (b) reduction without a government motion, but it
says nothing about what the judge may or may not do
once the government makes its motion.
No. 11-2616 13
The exception we noted is a case from the Fifth Circuit
that neither party called to our attention: United States
v. Williamson, 598 F.3d 227 (5th Cir. 2010). In that case,
like Mount’s, defendant Williamson pleaded guilty
under a written plea agreement. His presentence report
recommended the two-level reduction for acceptance
of responsibility under § 3E1.1(a), and pursuant to his
plea agreement, the government moved for the addi-
tional one level under § 3E1.1(b). The district court
awarded only the two-level reduction and, in effect,
denied the government’s motion. Id. at 228. The Fifth
Circuit concluded that the district court was entitled
to take this action. It gave three reasons for this conclu-
sion. First, it asserted that no language in subsection (b)
can be read to deny the sentencing judge a role in
deciding whether the guilty plea was entered in time to
allow the government to avoid preparing for trial. Id.
at 229. Second, it emphasized that Application Note 5
(which we have already found not particularly useful
here) states that the sentencing court is in a unique posi-
tion to assess acceptance of responsibility and that Ap-
plication Note 6 (which we similarly have found incon-
clusive) uses “permissive language” when it says
that “an adjustment under subsection (b) may only
be granted” when the government makes a motion. Id.
at 229-30. Third, Williamson cites cases from the Second
and Eighth Circuits that do not directly address the
issue, but which the Fifth Circuit saw as suggesting
that both the government and the district court have a
role in awarding the § 3E1.1(b) reduction. Id. at 230
(citing United States v. Stacey, 531 F.3d 565, 568 (8th Cir.
14 No. 11-2616
2008), and United States v. Sloley, 464 F.3d 355, 360 (2d Cir.
2006)).
We are not persuaded by the reasoning in Williamson.
As we have explained at length, § 3E1.1(b) uses mandatory
language in instructing the district court how to cal-
culate the offense level when the government has made
the necessary motion. This, in our view, is a textual argu-
ment that cuts against the Fifth Circuit’s approach. Al-
though we are not charged with maintaining consistency
in the Fifth Circuit’s law, we note that Williamson is in
considerable tension with other cases from that circuit,
including Tello, 9 F.3d at 1124, and Velgar-Vivero, 8 F.3d at
242. We have already explained why we do not regard
Application Notes 5 and 6 as a source of support for
the Williamson result; there is no need to repeat that
discussion here. Finally, Williamson seems to proceed
from the mistaken premise that if the district court is
directed by the guidelines to compute a certain offense
level, then that is the level within which the defendant
must be sentenced. We would have thought that seven
years after United States v. Booker, 543 U.S. 220 (2005), was
decided, this fallacy would have been put to rest. Over
and over, the Supreme Court has emphasized that
district courts have discretion over sentences, so long
as they begin with a proper calculation of the recom-
mended sentencing range under the guidelines and they
then take proper account of the sentencing considera-
tions outlined in § 3553(a). See, e.g., Spears v. United States,
555 U.S. 261, 263 (2009); Kimbrough v. United States, 552
U.S. 85, 91 (2007); Gall, supra. Even within the more
limited context of guidelines computations, the district
No. 11-2616 15
judge is responsible for the most important input into
the acceptance of responsibility decision: whether the
defendant is entitled to the first two levels pursuant
to § 3E1.1(a).
For what it is worth, we also think that the Fifth Cir-
cuit has overstated the holdings in Sloley and Stacey. In
Sloley the defendant argued that the government is
obliged to file a motion whenever the sentencing court
grants the subsection (a) two-level decrease. Sloley, 464
F.3d at 359. The Second Circuit concluded, in a ruling
with which we have no quarrel, that in line with the
plain language of § 3E1.1(b), the government motion
is discretionary and is a prerequisite to the additional one-
level decrease. Id. It explained that § 3E1.1 “contemplates
situations in which a court may find acceptance of re-
sponsibility while the government prosecutor may not”
and that “Congress’ aim in amending [§ 3E1.1(b)] makes
plain that under the new version both the court and
the government must be satisfied that the acceptance
of responsibility is genuine.” Id. at 359-60. This ex-
planation is equally consistent with both the result in
Williamson and Mount’s position here. It does not
foreclose Mount’s view that the sentencing court decides
whether to award a reduction under § 3E1.1(a), but once
it does, it may not insert itself again into the matter
to evaluate the government’s motion under § 3E1.1(b).
Stacey also provides little support for the Fifth Circuit’s
position. There, the district court awarded the defendant
a reduction under subsection (a), but it said that it was
denying the government’s motion for a subsection (b)
reduction “because of the fleeing and the other matter.”
16 No. 11-2616
Stacey, 531 F.3d at 566-67. On appeal the Eighth Circuit
noted that when all of the conditions of § 3E1.1(b) are
met, “ ‘the [sentencing] court has no discretion to deny the
extra one-level reduction.’ ” Id. at 567 (quoting Rice,
184 F.3d at 742). The Eighth Circuit remanded the case
to the district court for resentencing, explaining that in
denying the government’s motion the district court
had failed to “determine whether a reduction for accep-
tance of responsibility is factually appropriate.” Id. at 568.
The Fifth Circuit thought that Stacey might imply that
the district court may veto the government’s motion,
but we find this potential reading to be inconsistent
with the remainder of the court’s discussion. Id. at 567.
Indeed, we think that the Eighth Circuit’s statement in
Stacey is so clear that there is already a conflict in the
circuits on this point enough to obviate the need for a
circulation in this court under Circuit Rule 40(e).
What we have said thus far should be enough to
dispose of the government’s argument that Mount’s
approach would make the guidelines mandatory rather
than advisory. Nonsense. Mount’s approach deals only
with the correct computation of the advisory guideline
range. Nothing in his argument touches on the district
court’s duty to evaluate the outcome of that computa-
tion and then to impose (within statutory minima and
maxima) a reasonable sentence.
III
We conclude that the district court erred here by
failing to grant Mount the one-level reduction under
No. 11-2616 17
§ 3E1.1(b) that was triggered by the government’s motion.
His advisory guideline range was affected by that error,
and we cannot say on this record that the error was
harmless. We do note, however, that the district court
would have had the authority to select a higher sen-
tence based on its concern about Mount’s decision to go
on the lam for several months. We express no opinion
about the reasonableness of any final sentence the
district court may select.
The judgment of the district court is V ACATED and the
case is R EMANDED for further proceedings consistent
with this opinion.
4-12-12