Leeway Upheld in Gun Straw Buyer’s Sentencing

     CHICAGO (CN) – Prosecutors have discretion in seeking sentencing reductions if a defendant accepts responsibility, the 7th Circuit ruled, confirming its stance on the divisive question.
     Tristan Davis repeatedly gave false addresses when purchasing guns, six of which were later recovered from persons who could not lawfully possess firearms. Davis pleaded guilty to two counts of lying to gun dealers. In exchange for his plea, the government dismissed other charges against him.
     Prosecutors may request up to a three-level reduction under section 3E1.1(b) of the U.S. Sentencing Guidelines when a defendant pleads guilty. Because Davis refused to waive his right to appeal, however, the prosecutor moved for only a two-level reduction based on acceptance of responsibility.
     Davis was sentenced to 1 1/2 years imprisonment. He appealed, arguing that the government was required to move for a three-level reduction.
     “Davis contends that a motion from the prosecutor is mandatory whenever the defendant pleads guilty early enough to spare the prosecutor the burden of trial preparation,” the unsigned opinion states.
     “But he acknowledges that we rejected that contention in United States v. Deberry, which holds that §3E1.1(b) confers an entitlement on the prosecutor, not the defendant,” the judge added, citing the 2009 ruling.
     Although the 2nd and 4th Circuits agree with Davis’s interpretation, the judges said that “four courts of appeals have reached the same conclusion as Deberry.”
     The 7th Circuit noted that the 1st, 5th, 6th, and 9th Circuits all share its stance.
     “This circuit could not eliminate the conflict by changing sides, so stare decisis supports standing pat. Resolution of this conflict is the province of the Supreme Court or the Sentencing Commission,” the judges wrote.
     In a separate concurring opinion, Judge Ilana Rover explained her belief that the court’s Deberry conclusion was erroneous.
     Rovner argued that the right to appeal is used primarily as a means to address sentencing errors. Though a defendant cannot predict whether errors will occur, Rovner pointed that they occur with regularity.
     “Judges apply a complex set of guidelines to the unique set of facts surrounding a defendant’s criminal conduct and history,” Rovner wrote.
     “In doing so, judges may misapprehend the evidence, look to the wrong guideline, misconstrue the relevant guideline, incorrectly apply the guideline to the facts, fail to honor a defendant’s procedural rights in some way, fail to recognize the extent of their discretion, or impose a sentence that is substantively unreasonable,” she added. “We routinely vacate sentences and remand for resentencing to correct these and other kinds of sentencing errors. Correction of such errors serves both the defendant’s right to due process and a public interest in fair and accurate sentencing.”
     Thus, Rovner concluded, “reserving the defendant’s right to raise sentencing errors on appeal has absolutely nothing to do with his acceptance of responsibility for his crime.”
     Section 3E1.1(b) was amended by section 401(g) of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2004, transferring the authority to assess whether a defendant qualifies for a reduction from district judges to prosecutors.
     Prior to the amendment, Rovner noted, the reduction had been mandatory if the defendant qualified for it.

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