IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
______________________ FILED
January 22, 2008
No. 06-41115
______________________ Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NISHAN NEWSON,
Defendant-Appellant.
________________________________________________
On Appeal from the United States District Court
For the Eastern District of Texas, Lufkin Division
CR 9:04CR32
________________________________________________
Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant Nishan Newson appeals his sentence following a guilty plea
conviction for possessing with intent to distribute more than 50 kilograms of
marijuana. In particular, he challenges the district court’s refusal to grant
him an additional one-level decrease under U.S.S.G. § 3E1.1(b) after the
Government failed to move for the reduction based on Newson’s refusal to
waive his right to appeal.
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I.
A one-count indictment charged Nishan Newson with violating 21
U.S.C. § 841(a)(1) by possessing with intent to distribute more than 50
kilograms of marijuana. He pleaded guilty without a plea agreement.
The PSR assigned Newson a base offense level of 24. It then applied
the two-level decrease for acceptance of responsibility allowed by subsection
(a) of U.S.S.G. § 3E1.1 but not the additional decrease of one level allowed by
subsection (b) for a defendant who gives timely notice of his intention to plead
guilty. Newson objected to that omission, contending, inter alia, that he had
timely notified the Government that he would plead guilty and that he had
done nothing to cause any unnecessary expenditure of prosecutorial or
judicial resources. He asked, alternatively, for a downward departure of one
level from his base-offense level, but did not cite any particular Guideline or
statutory basis to support his request. The Government acknowledged that
the only reason it had not moved for the credit provided in § 3E1.1(b) was
Newson’s opposition to a plea bargain that would have waived substantial
rights to attack his conviction and sentence on appeal.
At sentencing the court remarked that it knew of no circuit precedent
regarding its authority to award the additional credit when the Government
chose not to move for it without getting the defendant’s appeal-rights waiver
in return. Nevertheless, the district court overruled all of Newson’s
objections and his request for the additional decrease, decided that a
downward departure was not authorized by the Guidelines, and rejected the
notion of a “deviation” sentence below the guidelines range.
Instead, it adopted the PSR. With a PSR-calculated offense level of 22
and a category-I criminal history, Newson had a guidelines range of 41 to 51
months’ imprisonment. The court sentenced him to serve 41 months.
2
Additionally, the court stated that, if the third-level decrease had been
available (thus changing the guideline range to 37 to 46 months), it would
have imposed a 37-month sentence.1 Newson filed a timely notice of appeal.
II.
Newson argues that the Prosecutorial Remedies and Other Tools
Against the Exploitation of Children (PROTECT) Act’s amendment to §
3E1.1, making a government motion necessary for the one-level decrease for
timely notice of intention to plead guilty, stripped the district court of its
discretion to apply reductions.2 He contends that the amended Guideline
violates principles of separation of powers by shifting judicial power to the
executive branch. Id.
Newson’s constitutional challenge is reviewed de novo. United States v.
Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000). In Mistretta v. United
States, 488 U.S. 361, 364 (1989), the Supreme Court stated that “the scope of
judicial discretion with respect to a sentence is subject to congressional
control.” Id. at 364. The court reaffirmed its Mistretta analysis in United
States v. Booker, 543 U.S. 220, 243 (2005), and rejected a separation-of-
powers argument against the application of the Sentencing Guidelines.
Although this court has not addressed this issue in a published decision, in an
unpublished decision this court held that Booker forecloses the claim that
1
Consequently, if the failure to apply the additional one-level credit was error, it was not
harmless. See United States v. Tello, 9 F.3d 1119, 1131 (5th Cir. 1993), holding that a sentencing
error cannot be deemed harmless unless the appellate court is persuaded that the district court
“would have imposed the same sentence absent the erroneous factor.”
2
Section 401(g) of the PROTECT Act inserted into § 3E1.1(b) the requirement that the
Government move for the third-level credit in the acceptance-of-responsibility Guideline. See
Prosecutorial Remedies and Other Tools Against the Exploitation of Children Act, Pub. L. No.
108-21, § 401(g)(1)(A), 117 Stat. 671 (2003).
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§ 3E1.1(b) results in an unconstitutional violation of the separation-of-powers
doctrine. See United States v. Huff, 134 F. App’x 697, 699 (5th Cir. 2005),
cert. denied, 546 U.S. 1176 (2006). Two other circuits are in accord. United
States v. Brandon, 2005 U.S. App. LEXIS 22286 (9th Cir. 2005)(unpublished);
United States v. Delk, 132 Fed. Appx. 448, 449 (4th Cir. 2005)(unpublished).
We see no basis to deviate from that position and reject Newson’s
argument that U.S.S.G. § 3E1.1(b), as amended, violates principles of
separation of powers by shifting judicial power to the executive branch.
Newson’s argument is particularly undermined by the fact that if the district
court desires to recognize the defendant’s acceptance of responsibility it has
the discretion to do so by entering a non-Guidelines sentence.
III.
Newson argues next that the district court erred by not awarding him
the additional one-level decrease when the Government, citing Newson’s
refusal to waive appeal rights, declined to move for it. Construction of the
guidelines is a question of law. See United States v. Davis, 478 F.3d 266, 270
(5th Cir. 2007).
(A) The government-motion requirement
Newson contends that he timely notified the Government of his
intended guilty plea, thus sparing it trial-preparation work and permitting it
and the court to allocate resources efficiently before conviction and
sentencing. The Government refused to move for the third-level decrease
solely because he would not accept the appellate waiver provision in its
proposed plea agreement. In his view, that refusal was irrational and
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punitive and not based on a legitimate governmental purpose.3 Newson
contends that § 3E1.1(b)’s purpose is to prevent a waste of prosecutorial and
judicial resources at the trial-court level and that the Guideline contains no
nexus between post-judgment proceedings and a defendant’s timely pretrial
action.
The Government acknowledges that it withheld its consent to the
additional credit only because Newson would not agree to the appeal-rights
waiver in its proposed plea agreement. The Government contends that
§ 3E1.1(b) “can reasonably be interpreted” to encompass not only the
expenditure of the Government’s time and effort at the prejudgment stage but
also in appellate or collateral-review proceedings. In the Government’s view,
conserving its resources in post-judgment proceedings serves a legitimate
governmental interest. Newson’s refusal to give up his right to appeal, the
Government says, would have “armed [him] with years of appellate and
collateral attacks on the finality of his conviction.” Additionally, the
Government contends that Newson’s desire to preserve his post-judgment
rights shows that he has not “‘accepted responsibility in a way that ensures
the certainty of his just punishment in a timely manner.’” (quoting § 3E1.1,
comment. (backg’d.)).
The timely-cooperation prong of § 3E1.1, subsection (b), provides that a
3
The plea agreement proposed by the Government included this provision:
Except as otherwise provided herein, Defendant expressly waives his right to
appeal his conviction and sentence on all grounds. Defendant further agrees not to
contest his sentence in any post conviction proceeding, including, but not limited
to a proceeding under 28 U.S.C. § 2255. Defendant, however, reserves the right
to appeal the following: a) any punishment imposed in excess of the statutory
maximum; and b) a claim of ineffective assistance of counsel that affects the
validity of the waiver itself.
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defendant who has already received the two-level acceptance-of-responsibility
decrease under subsection (a) is entitled to an additional decrease of one level
if the Government states that he 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.” U.S.S.G. § 3E.1.1(b). The government-motion
requirement is emphasized in the commentary accompanying the Guideline.
“[A]n adjustment under subsection (b) may only be granted upon a formal
motion by the Government at the time of sentencing.” § 3E1.1, comment.
(n.6).
Several other circuits have held that the district court may not award a
§ 3E1.1(b) reduction absent a motion from the government. United States v.
Smith, 429 F.3d 620, 628 (6th Cir. 2005); United States v. Smith, 422 F.3d
715, 726 (8th Cir. 2005), cert. denied sub nom. Jordan v. United States, 126 S.
Ct. 1112 ( 2006); United States v. Sanders, 208 F. App’x 160, 162-63 (3d Cir.
2006); United States v. Chase, 466 F.3d 310, 315 and n.4 (4th Cir. 2006).4 In
United States v. Sanches-Penalosa, 178 F. App’x 382, 383 (5th Cir. 2006)
(unpublished), a case that did not include an allegation that the prosecution
was without a rational basis for its actions, this circuit also stated that the
Guidelines do not permit award of the third-level decrease unless the
Government asks for it. Based on the plain language of § 3E1.1(b), we agree.
The Ninth and Tenth Circuits have concluded that “a prosecutor is
afforded the same discretion to file an acceptance of responsibility motion for
The Chase court rejects the opposite result reached in United States v.
4
Catala, 134 Fed. Appx. 617, 623 (4th Cir. 2005), and treats that opinion as
nonbinding as it was not a published opinion.
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a third level reduction . . . as for the filing of a substantial assistance motion
under section 5K1.1.” United States v. Espinoza-Cano, 456 F.3d 1126, 1136
(9th Cir. 2006); accord United States v. Moreno-Trevino, 432 F.3d 1181,
1185-86 (10th Cir. 2005). Based on that analogy, the Tenth Circuit describes
the government’s discretion to file a motion under § 3E1.1(b) “a power, not a
duty.” Id. at 1186.
Even when the Government has discretion to act, it may not act
arbitrarily or irrationally or base its actions on an unconstitutional motive.
Wade v. United States, 504 U.S. 181, 186-87 (1992) (holding that government-
motion requirement of § 5K1.1 does not impose duty on Government but that
Government decision not to move must be related to legitimate governmental
end); see also United States v. Solis, 169 F.3d 224, 226 (5th Cir. 1999)
(government motion for downward departure under § 5C1.2 for defendant
who provides substantial assistance in investigation cannot be withheld for
unconstitutional motive). In Moreno-Trevino, the Tenth Circuit concluded
that “a court can review the government’s refusal to file a Section 3E1.1(b)
motion and grant a remedy if it finds the refusal was (1) animated by an
unconstitutional motive, or (2) not rationally related to a legitimate
government end.” 432 F.3d at 1186 (citations and internal quotations
omitted).
The question then is whether the government’s refusal to file a §
3E1.1(b) motion in this case meets that standard. There is no reported
decision of this circuit addressing the issue whether the Government can
decline to move for the third-level decrease if the defendant insists on
retaining all of his rights to seek post-judgment relief. In an unpublished
decision, Huff, 134 F. App’x at 699, this court rejected the defendant’s
contention that the Government’s refusal to move for the § 3E1.1 credit had
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been based on an unconstitutional motive; the court held that the
Government had been “justified in not moving for the additional credit”
because the defendant had not timely cooperated. Huff had argued that his
arrest resulted from an illegal search and seizure, resulting in a suppression
hearing that was the substantive equivalent of a full trial. Additionally, the
Ninth Circuit has held that the Government has a rational basis for declining
to move for the § 3E1.1(b) decrease if the defendant’s offer of a stipulated
bench trial would leave open the possibility that the Government would
expend resources “anticipating, and ultimately defending, a complete appeal.”
Espinoza-Cano, 456 F.3d at 1138 (internal quotation marks omitted).
We agree with the circuits cited above which hold that a defendant is
not entitled to a decrease under § 3E1.1(b) unless the Government files a
motion requesting the adjustment. We are unable to reach any other
conclusion under a plain reading of the provision. The defendant’s refusal to
waive his right to appeal is a proper basis for the Government to decline to
make such a motion, as it is rationally related to the purpose of the rule and
is not based on an unconstitutional motive. In this case Newson makes no
argument, other than the separation of powers argument rejected above, that
the Government’s refusal to file the motion is based on any other
unconstitutional motive. Accordingly, we reject this challenge to his
sentence.
(B) Newson’s alternative motion for a downward departure
Finally, Newson contends that the district court erred in rejecting his
alternative motion for an outside-the-guidelines sentence equivalent to the
sentence he would have received had the government moved for the §
3E1.1(b) decrease. Newson’s assertion is that the sentence is substantively
unreasonable. We “consider the substantive reasonableness of the sentence
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imposed under an abuse-of-discretion standard . . . tak[ing] into account the
totality of the circumstances.” Gall v. United States, 128 S.Ct. 586, 597
(2007). In this circuit, a within-guidelines sentence enjoys, on review, a
rebuttable presumption of reasonableness. United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006); see Gall, 128 S.Ct. at 597 (“If the sentence is within
the Guidelines range, the appellate court may, but is not required to, apply a
presumption of reasonableness.” (citing Rita v. United States, 127 S.Ct. 2456,
2462 (2007)).
Newson has not overcome the presumption of reasonableness and has
not demonstrated that the district court abused its discretion. The judge
recognized that he could impose an outside-the-guidelines sentence if there
were sufficient justification for such a departure, but he concluded that there
was no such justification. The decision to impose a within-the-guidelines
sentence, along with the court’s statement that no reason justified an outside-
the-guidelines sentence, indicates the court thought this a typical, mine run
case in which the guidelines provide the appropriate sentence in terms of 18
U.S.C. § 3553(a). See Rita, 127 S.Ct. at 2468. We agree.
IV.
For the foregoing reasons, the sentence of defendant Newson is
affirmed.
AFFIRMED.
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