Monthly Archives: December 2016

You’d Better Say You’re Sorry: Acceptance of Responsibility By: Aubrey Wakeley

You’d Better Say You’re Sorry: Acceptance of Responsibility

Adjustments under Federal Sentencing Guidelines 

By: Aubrey Wakeley

Current federal sentencing practices operate with the use of an offense numbering system that results in a recommended sentencing range within which the sentencing judge is recommended to sentence the defendant, absent unusual circumstances.[1] As of 2005, these guidelines are advisory only.[2] While some issues regarding the sentencing guidelines have been squarely addressed and resolved by the Supreme Court[3], courts have barely touched on the issue of the constitutionality of the downward departure for acceptance of responsibility.

One of two courts to address the legality of the acceptance of responsibility reduction, the federal court for the District of Oregon ruled based on the third level of reduction delegating the authority to reduce the offender’s sentence to the executive branch in a pre-Booker decision.[4] The court held that the discretionary level reduction by the additional third level violated the separation of powers, regardless of whether the defendant has actually received the discretionary reduction: “It also is immaterial whether this particular [d]efendant ultimately receives the third point for acceptance of responsibility. The mere fact that the prosecutor can, if he or she chooses, deny a defendant the third point alters the relative bargaining strength of the parties.”[5]

Since then, however, few decisions address defendants’ arguments against the acceptance of responsibility level reductions on these, or any other, grounds because, as the Third Circuit noted, Booker’s constitutional remedy for a meddling executive branch was to eliminate the mandatory nature of the guidelines.[6] This, the Third Circuit reasoned, was sufficient to remedy any Constitutional worries about a defendant’s sentencing being tainted by improper executive branch influence.[7] The Constitutional issues regarding the separation of powers in sentencing standards therefore appear to be addressed and remedied.

The prudential concerns surrounding this issue are less easily resolved and have been left largely unaddressed. After Booker, the federal courts are still left with a system that gives defendants recommended sentences that will vary greatly in accordance with the sole variable of the defendant exercising his constitutionally guaranteed right to trial.[8] A defendant with no criminal history at all can receive a recommended sentence varying from twenty-seven months to fifteen months, a reduction of 44% in his time incarcerated, based solely on his agreement not to exercise his right to trial after being charged with a level sixteen offense.[9] Upon government motion for the third level reduction, the recommended sentence can drop to twelve months, a 56% reduction in recommended prison time.[10] At the other end of the spectrum, a career offender[11] who pleads guilty to an offense normally sentenced as a level sixteen offense can have the level of that offense, and consequently his sentence recommendation, reduced automatically by 35% with the standard two-level reduction.[12]  This reduction can add up to a difference of over eleven years at the higher end of criminal history category VI.[13] Upon motion of the government for the third level of reduction, which can be a negotiating point for the defendant’s attorney, the recommendation can be reduced even further, to 42% of the initial level sixteen offense.[14]

Because of the comparable lack of sophistication most criminal defendants possess, a person accused of a crime might consider solely the term of imprisonment when determining whether to plead guilty, regardless of any advisements by his defense attorney about collateral consequences. A defendant may even plead guilty when he is not to avoid risking the longer prison sentence or out of a belief that the system disfavors defendants who assert their innocence in court.[15] 97% of federal court cases resulting in a verdict were the result of plea bargains in 2013.[16] Even a knowledgeable defendant, faced with a recommended sentence differential up to 55%, could conclude that the system is biased against a defendant who actually uses his right to trial.

Implementing a solution to this problem of the vast gulf in federal sentencing is logistically difficult, even if not constitutionally problematic. Judicial system funding is tight,[17] , and recent funding crises inevitably come to mind when discussing a massive increase on the federal trial load. Lessening sentencing disparities would certainly result in a changed calculus for defendants, making them more likely to proceed to trial. Currently, admission of all essential elements of a crime is strong evidence of acceptance of responsibility and thus quite likely to result in the applicable reduction of recommended sentence.[18] The defendant putting the government to its burden of proof at trial over factual issues is a categorical bar to the acceptance of responsibility reduction.[19] Because of the current court funding limitations and massive increase in trial load that would result from remediating this disparity, which would remove a reasonable ground for defendants’ belief that the judicial system is hostile to their exercise of the right to trial, there exists little reason to believe that this problem can be resolved in the near future.

[1] See Federal Sentencing Guidelines Manual § 5A (2016), available at

[2] United States v. Booker, 543 U.S. 220, 259 (2005) (holding, “[W]e must sever and excise…the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range) (emphasis added).

[3] See United States v. Booker, 543 U.S. 220 (2005).

[4] United States v. Detwiler, 338 F. Supp. 2d 1166, 1181 (D. Or. 2004).

[5] Id.

[6] United States v. Coleman, 451 F.3d 154, 158 (3d Cir. 2006) (holding, “Indeed, the…remedy for the perceived separation of powers violation in Detwiler-conversion of the mandatory Guidelines into a non-binding, advisory system is essentially the remedy the Supreme Court adopted in Booker, albeit for a different constitutional violation…Thus, while Coleman’s argument that the Feeney Amendment unconstitutionally allows the President to control sentencing might have been persuasive while the Guidelines were still mandatory, it is misplaced under the now-advisory system.”) (internal citations omitted).

[7] Id.

[8] See Federal Sentencing Guidelines Manual § 5A (2016), supra note 1.

[9] Id.

[10] Id.

[11] See Federal Sentencing Guidelines Manual § 4B1.1 (2016).

[12] Federal Sentencing Guidelines Manual § 5A (2016), supra note 1.

[13] Federal Defender, How a Person Previously Sentenced as a ‘Career Offender’ Would Likely Receive  aLower Sentence Today, (explaining, “Sentences recommended by the career offender guideline are among the most severe and least likely to promote the statutory purposes of sentencing.”),, last accessed on December 1, 2016.

[14] Federal Sentencing Guidelines § 5A (2016), supra note 8.

[15] Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. REV. OF BOOKS (Nov. 20, 2014), (“The few criminologists who have thus far investigated [innocent people pleading guilty] estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. … let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.”).

[16] Id.

[17] Denise A Cardman, Federal Court Funding (2016), (last visited Nov 26, 2016).

[18] Federal Sentencing Guidelines Manual § 3E1.1 (2016) (“Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable…will constitute significant evidence of acceptance of responsibility.) (internal citations omitted).

[19] Id.

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