The United States Sentencing Commission (U.S.S.C.) has submitted a number of amendments to the United States Sentencing Guidelines that are to take effect on November 1, 2013. The amendments in their entirety may be found here.
From a practical standpoint, the most important amendment may be one of the changes to U.S.S.G. 3E1.1. Section 3E1.1 is that provision of the Guidelines that addresses Acceptance of Responsibility. The section provides for a 2 point reduction to the base offense level for a defendant who “clearly demonstrates acceptance of responsibility for his offense.” The change to this section added the following language.
“The government should not withhold such a motion based on interests not identified in §3E1.1, such as whether the defendant agrees to waive his or her right to appeal.”
The U.S.S.C. added this change to to the Guidelines to clarify and resolve a split among several U.S. Circuit Courts of Appeals. Some Courts held that it was proper for the Government to decline to file an acceptance of responsibility motion where the Defendant refused to sign an Appellate waiver. Other Courts disagreed, and ruled that the refusal to file a motion for acceptance of responsibility merely because the Defendant refused to sign an Appellate waiver did nothing to advance the interests of 3E1.1.
The U.S.S.G. amendment makes clear that an accused person’s refusal to sign an Appellate waiver should not affect one’s right to Acceptance of Responsibility points, and nor should other factors or considerations not identified in the text of 3E1.1 itself, or the Commentary.