Taming the Hydra: Prosecutorial Discretion under the Acceptance of Responsibility Provision of the US Sentencing Guidelines

Lashawn Dwayne Divens, charged with possession of crack cocaine with intent to distribute, was presented with a plea agreement requiring him to waive certain rights to appellate review and collateral attack. Although Divens declined to sign the agreement, he took action the very next day, filing a motion notifying the court of his intention to plead guilty. Divens also signed an acceptance of responsibility statement admitting his guilt of the charged crime and expressing remorse. Divens fully expected to receive an additional one-level reduction in his sentence under § 3E1.1(b) of the United States Sentencing Guidelines (Guidelines), which states that a defendant is eligible for the reduction upon motion of the government stating 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. The Government, however, refrained from moving for the reduction, citing Divens’s refusal to waive his right to appellate review and collateral attack. 

Divens appealed and, in United States v Divens, the Fourth Circuit held that the Government cannot withhold a § 3E1.1(b) motion based on any rational interest. The Second Circuit has since accepted the Fourth Circuit’s interpretation of § 3E1.1(b) in United States v Lee.

Importantly, the Fourth and Second Circuits’ approach toward determining prosecutorial discretion under § 3E1.1(b) was a marked departure from the approach of their sister circuits. The First, Fifth, Seventh, Eighth, Ninth, and Tenth Circuits assert that the Government may withhold a § 3E1.1(b) motion based on “any rational interest”—that is, the Government may refuse to file the motion so long as the refusal is both “rationally related to a legitimate government end” and not “animated by an unconstitutional motive.” In so holding, these “any rational interest” courts reason that the Government possesses the same broad discretion under § 3E1.1(b) that it enjoys under § 5K1.1 of the Guidelines, which applies to defendants providing substantial assistance to authorities. This conclusion is based on Congress’s insertion of § 5K1.1’s “upon motion of the government” language into § 3E1.1(b) as a part of the PROTECT Act generally known as the Feeney Amendment. The any rational interest courts have relied on this insertion to discern congressional intent and use § 5K1.1 to inform their analysis of § 3E1.1(b). In light of the recent Second and Fourth Circuit decisions, the conclusion of other courts that the Government is permitted to withhold a § 3E1.1(b) motion based on any rational interest has been thrown into question. Despite the fact that the majority of circuits have applied the any rational interest standard to § 3E1.1(b), it is unclear how the Supreme Court would decide the issue, as “counting courts in a circuit split is not th[e] Court’s usual method for deciding important questions of law.” This Comment rejects a pure application of either the any rational interest approach or the Second and Fourth Circuits’ approach to prosecutorial discretion.