UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. xx-3132

BRIEF FOR APPELLANT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

xxxxxxxxxxxxxxx, Defendant-Appellant.

JURISDICTION

The district court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period of Fed. R. App. P. 4(b),¹October 22, 1998, in order to reinstate his right to appeal. Mr. xxxxxxxx filed a timely notice of appeal on October 30, 1998. this Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), (2).

ISSUE PRESENTED FOR REVIEW

Whether the district court erred in not awarding Mr. xxxxxxxx an additional one-point reduction in his sentencing offense level for timely acceptance of responsibility where Mr. xxxxxxxx notified the government of his intent to plead guilty before he was even indicted, thereby saving the government and the court considerable time and expense in bringing him to trial.

STATUTES AND REGULATIONS

Pertinent statutes and sentencing guidelines are contained in the addendum to this brief.

On April 9, 1996, the government filed a one-count information against Appellant Adetubokun xxxxxxxx charging that Mr. xxxxxxxx did forcibly assault, resist, oppose, impede, intimidate, and interfere with four officers of the United States while they were engaged in their official duties, in violation of 18 U.S.C. § 111. (App. 9).² Mr. xxxxxxxx waived his right to be prosecuted by indictment and pled guilty to the charge on May 1, 1996. (App. 10; 5/1/96 Tr. 5).

On August 9, 1996, the district court sentenced Mr. xxxxxxxx to 30 months incarceration, the sentence to run consecutively to the 16-month sentence Mr. xxxxxxxx was then serving for bank fraud. The court further imposed a one-year term of supervised release, to run consecutively to any other term of supervised release that Mr. xxxxxxxx was required to serve. (App. 11-14; 8/9/98 Tr. 15-16). Mr. xxxxxxxx’s attorney did not file a notice of appeal after sentencing.

On February 18, 1997, Mr. xxxxxxxx filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, arguing that his attorney was ineffective for not seeking an additional one-point reduction in his sentencing offense level for timely acceptance of responsibility and for failing to file an appeal raising this sentencing issue. (App. 18-32). The district court denied Mr. xxxxxxxx’s § 2255 motion by order and memorandum filed April 30, 1997. (App. 40).

Mr. xxxxxxxx then appealed the district court’s denial of his § 2255 motion. This Court vacated the district court’s denial order and remanded the case for further proceedings on the issue of whether trial counsel was ineffective for not filing an appeal. United States v. xxxxxxxx, No. 97-3099 (D.C. Cir. Jan. 22, 1998); (App. 45-46).

On remand, the district court granted Mr. xxxxxxxx’s motion requesting that his sentence be vacated and reentered so that he could file a timely notice of appeal. (App. 47). Mr. xxxxxxxx filed a timely notice of appeal and is now before this Court on direct appeal of his sentence.

B. Statement of Facts

This case arises out of Mr. xxxxxxxx’s plea to and sentencing for bank fraud in another case. On November 17, 1995, Mr. xxxxxxxx pled guilty to one count of bank fraud in the United States District Court for the District of Columbia. (PSR 7). At the time of his plea, his attorney advised him that he would receive a sentence under the sentencing guidelines of between six and twelve months. (App. 17). Sentencing was set for March 8, 1996. On March 3, 1996, a few days before sentencing, Mr. xxxxxxxx’s fiancee delivered their baby prematurely, and the baby died. (8/9/96 Tr. 8; PSR 5). At sentencing on March 8, the court imposed a 16-month sentence, exceeding what Mr. xxxxxxxx expected he would receive. (PSR 7; App. 17). After the sentence was imposed, a United States Marshal instructed Mr. xxxxxxxx to step through the door at the front of the courtroom to the cellblock. Mr. xxxxxxxx requested time to retrieve some papers and to speak with his mother, who was sitting in the courtroom. The Marshal informed Mr. xxxxxxxx that he could not, and took hold of Mr. xxxxxxxx’s arm to lead him back to the cellblock. At that point, Mr. xxxxxxxx, upset about his family’s loss of a newborn and confused about his long sentence, pushed the Marshal away. A struggle ensued and three other federal officers joined in an attempt to subdue Mr. xxxxxxxx. Mr. xxxxxxxx kicked and hit one officer, and bit two others, before being handcuffed and subdued. His mother also joined in the melee and bit the U.S. Probation Officer when he tried to remove her from the struggle. (5/1/96 Tr. 9-10; PSR 3-4).

The government charged Mr. xxxxxxxx through an information with one count of forcibly assaulting, resisting, opposing, impeding, intimidating and interfering with officers of the United States. Mr. xxxxxxxx immediately agreed to plead guilty to the information, saving the government the task of indicting him through a grant jury proceeding. (5/1/96 Tr. 3). Less than one month after the information was filed, Mr. xxxxxxxx entered a formal guilty plea before the district court and expressed remorse for his actions. (5/1/96 Tr. 5; PSR 5). As part of the plea agreement, the government agreed not to indict Mr. xxxxxxxx’s mother. (5/1/96 Tr. 3).

The presentence report calculated a base offense level of 17 pursuant to the guideline for assault, U.S.S.G. § 2A2.2. (PSR 5-6). It recommended a two-level reduction in the offense level for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a). Neither defense counsel nor the government challenged the recommendation. (8/9/96 Tr. 14). The Court then adopted the offense level in the presentence report and sentenced Mr. xxxxxxxx to 30 months incarceration, at the low end of the guideline range. (Id. at 15).

SUMMARY OF ARGUMENT

The single issue in this case is whether Mr. xxxxxxxx should have received an additional one-point reduction in his sentencing offense level for timely acceptance of responsibility. The Sentencing Guidelines mandate an additional one-point reduction where a defendant timely notifies the government of his intent to plead guilty, thereby avoiding expenditure of government resources preparing for trial and allowing the court to use its resources efficiently. Here, where Mr. xxxxxxxx informed the government of his intent to plead guilty immediately after the offense conduct, saving the government not only from preparing for trial but also from presenting his case to the grand jury, and saving the court from reserving time in its schedule for trial, Mr. xxxxxxxx was entitled to an additional one-point reduction.

MR. xxxxxxxx IS ENTITLED TO AN ADDITIONAL ONE-POINT REDUCTION IN HIS SENTENCING OFFENSE LEVEL FOR TIMELY ACCEPTANCE OF RESPONSIBILITY WHERE HIS EARLY GUILTY PLEA ALLOWED THE GOVERNMENT TO AVOID PREPARING FOR TRIAL AND ALLOWED EFFICIENT USE OF JUDICIAL RESOURCES.

A. Standard of Review.

Mr. xxxxxxxx did not seek in the district court an additional one-point reduction in his offense level for timely accepting responsibility. Therefore, his issue is subject to plain-error review by this Court. See Fed. R. Crim. P. 52(b); Johnson v. United States, 117 S. Ct. 1544 (1997) (applying plain-error review where defendant raised an issue on appeal that was not raised before the district court); United States v. Olano, 507 U.S. 725 (1993) (same); United States v. Spinner, 152 F.3d 950 (D.C. Cir. 1998) (same); United States v. Saro, 24 F.3d 283 (D.C. Cir.) (same), cert. denied, 117 S. Ct. 375 (1996).

Under a plain-error standard, an appellant must show that there is "(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’" Johnson, 520 U.S. at 1549 (quoting Olano, 507 U.S. at 732). An error is "plain" when it is clear or obvious error. Johnson, 520 U.S. at 1549; Olano, 507 U.S. at 734. An error "affects substantial rights" when it is prejudicial and "affect[s] the outcome of the district court proceedings." Olano, 507 U.S. at 734. In the context of sentencing, "the required showing of ‘prejudice’ should be slightly less exacting than it is in the context of trial errors." Saro, 24 F.3d at 287. While a defendant needs to show a "reasonable likelihood" of prejudice (the same standard required for plain trial errors), the Court should be "more willing" to find prejudice under this standard in the sentencing context. Id. at 288.

Where an appellant has made the necessary showings, the Court may then correct the error if the error "‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’" Johnson, 520 U.S. at 1550 (quoting Olano, 507 U.S. at 736).

B. Mr. xxxxxxxx is Clearly Entitled to an Additional One-Point Reduction in His Offense Level Where He Pled Guilty Soon After His Offense, Before the Government Presented His Case to a Grand Jury.

Mr. xxxxxxxx’s guilty plea in this case, made soon after his offense and before the government even presented his case to a grand jury for indictment, entitles him to a one-point reduction for early acceptance of responsibility in addition to the two-point reduction already awarded by the district court. The sentencing guidelines mandate this result where a defendant timely notifies the government of his intent to plead guilty and thereby allows the government to avoid preparing for trial and allows the court to allocate its resources efficiently.

The sentencing guidelines permit up to a three-point reduction in a defendant’s sentencing offense level for acceptance of responsibility. Section 3E1.1(a) provides for a two-point reduction where the "defendant clearly demonstrates acceptance of responsibility for his offense." If a court determines that a defendant qualifies for the two-point reduction pursuant to § 3E1.1(a), and if the defendant’s offense level is 16 or greater, it must then award an additional one-point reduction where the defendant:

(1) timely provid[es] complete information to the government concerning his own involvement in the offense; or

(2) timely notif[ies] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently.

U.S.S.G. § 3E1.1(b); see U.S.S.G. § 3E1.1 comment (n.6). The additional one-point reduction pursuant to subsection (b) is intended for the defendant who informs the government at a particularly early stage of the case of his intent to plead guilty or of his role in the offense, so that neither the government nor the court has expended time or resources preparing for trial. § 3E1.1 comment (n.6).

Subsection (b)’s clear mandate directs courts to "decrease the offense level by 1 additional level" where a defendant meets subsection (b)’s criteria. § 3E1.1(b). Therefore, once a court determines that a defendant (1) has accepted responsibility for his offense pursuant to subsection (a); (2) has an offense level of 16 or greater; and (3) has timely provided information to the government or timely pled guilty pursuant to subsections (b)(1) or (2), the court has no discretion to withhold the additional one-point reduction. Every Circuit to consider the issue of the district court’s discretion in applying subsection (b) has agreed that once the appropriate factual findings are made, the court has no discretion to withhold the one-point credit. See United States v. Lancaster, 112 F.3d 156, 158 (4th Cir. 1997); United States v. McPhee, 108 F.3d 287, 289-90 (11th Cir. 1997); United States v. Townsend, 73 F.3d 747, 755 (7th Cir. 1996); United States v. Huckins, 53 F.3d 276, 279 (9th Cir. 1995); United States v. Talladino, 38 F.3d 1255, 1264-65 (1st Cir. 1994); United States v. Tello, 9 F.3d 1119, 1127, 1128-29 (5th Cir. 1993).

This interpretation from the plain language of § 3E1.1(b) also supports the sentencing guidelines’ purpose of ensuring uniformity among sentences. Where the guidelines limit judicial discretion, sentencing courts may not issue disparate sentences in cases involving similar conduct. The guidelines have so limited judicial discretion in § 3E1.1(b). Therefore, where a defendant has met the stated criteria of § 3E1.1(b), a court must necessarily award an additional point for acceptance of responsibility. See Talladino, 38 F.3d at 1265 (reasoning that plain reading of text of subsection (b) supports guidelines’ primary purpose of uniformity in sentencing).

Here, the district court gave Mr. xxxxxxxx a two-point reduction in his offense level for acceptance of responsibility pursuant to § 3E1.1(a). Furthermore, Mr. xxxxxxxx had a base offense level of 17 before the two-point reduction, qualifying him for consideration for an additional one-point reduction pursuant to § 3E1.1(b). (PSR 6). Moreover, he clearly met the requirements of subsection (b)(2). Mr. xxxxxxxx notified the government of his intent to plead guilty at the earliest possible stage in his case, upon the filing of an information and before the government brought charges before a grand jury. Mr. xxxxxxxx then waived his right to indictment by a grand jury. The government, therefore, knew from the inception of the case that it would not have to prepare for trial. Similarly, the court was not required to use judicial resources for pretrial motions or to reserve time in its schedule for trial. The first appearance by Mr. xxxxxxxx in this case was on May 1, 1996, less than two months after the offense, at which time Mr. xxxxxxxx entered a guilty plea. (App. 3). His only other court appearance was approximately three months later for sentencing. (App. 4). Mr. xxxxxxxx did not cause the government or the court to expend resources beyond those necessary to enter his guilty plea and sentence him. These facts show that he clearly should have been awarded an additional point under subsection (b) for acceptance of responsibility.

Although the "timeliness of the defendant’s acceptance of responsibility is . . . context specific[,] [i]n general, the conduct qualifying for a decrease in offense level under subsection (b)(1) or (2) will occur particularly early in the case." § 3E1.1, comment (n.6). In other cases, courts have found that a defendant timely accepted responsibility entitling him to a one-point reduction pursuant to § 3E1.1(b)(2) where the defendant pled guilty much later in the case than did Mr. xxxxxxxx. For example, in United States v. Marroquin, 136 F.3d 220 (1st Cir. 1998), the court held that a defendant who pled guilty two months after arraignment and after the government had responded to eight pretrial motions filed by the defendant qualified for a one-point reduction for timely pleading guilty. In another example, the court ruled that a defendant who pled guilty after indictment and transfer of his case to another district had timely notified the government of his intent to plead. Tello, 9 F.3d at 1121, 1129. In contrast, courts generally deny the one-point award where a defendant does not notify the government of his intent to plead guilty until close to the time of trial. For example, in this Circuit, the Court affirmed the district court’s denial of a one-point reduction pursuant to § 3E1.1(b) where the defendant was arrested and indicted, then declined the government’s plea offers and had the court set a trial date. The defendant finally agreed to plead guilty almost three months after the government’s final plea offer and approximately three weeks before trial was to begin. United States v. Williams, 86 F.3d 1203, 1205 (D.C. Cir. 1996). The Court upheld the district court’s ruling that Williams’ notification of his intent to plead had come too late to conserve judicial resources. Id. at 1206. It also noted that, with trial imminent, the government likely had begun to prepare for trial. Id. at 1206-07.

In the context of this case, and by comparison with other cases, Mr. xxxxxxxx’s early decision to plead guilty conserved government and judicial resources. Thus, it was plain error for the district court not to award him an additional one-point reduction for acceptance of responsibility pursuant to § 3E1.1(b)(2).

C. The Sentencing Error Is Prejudicial and Affected the Fairness and Integrity of the Sentencing Proceeding.

The district court’s error in failing to award Mr. xxxxxxxx an additional one-point reduction pursuant to § 3E1.1(b) affects Mr. xxxxxxxx’s substantial rights by raising at least a reasonable likelihood of prejudice. At sentencing, the district court noted for Mr. xxxxxxxx and his mother (who was in the courtroom) that the 30-month sentence chosen by the court was at the low end of the guideline range. (8/9/96 Tr. 16). Presumably the court noted this fact because the 30-month sentence was far in excess of the 16-month sentence Mr. xxxxxxxx received for his underlying bank fraud conviction and because the court was required to impose the 30-month sentence consecutively. (See 5/1/96 Tr. 13). Thus, this sentence was a considerable extension to Mr. xxxxxxxx’s existing sentence. If Mr. xxxxxxxx had been sentenced at the low end of the correct guideline range (offense level 14, criminal history category IV), his sentence would have been only 27 months.³ Given the district court’s remark that it was sentencing Mr. xxxxxxxx at the low end of the guideline range, and given the fact that the sentence was to be imposed consecutively, it is reasonably likely that Mr. xxxxxxxx would have received a 27-month sentence under the correct offense level. See Townsend, 73 F.3d at 755 ("A sentence based on an incorrect guideline range constitutes an error affecting substantial rights and can thus constitute plain error." (internal quotations and citations omitted)).

Furthermore, the sentencing error here affected the fairness and integrity of the sentencing proceeding and, therefore, should be corrected. Section 3E1.1(b) was added as an amendment to the acceptance-of-responsibility guideline in order to reward a defendant who provides early assistance to the government as well as accepts responsibility for his conduct. U.S.S.G. App. C, amend. 459 (1992). Where a defendant like Mr. xxxxxxxx clearly meets -- and arguably exceeds what may have been necessary to satisfy -- the criteria for a three-point reduction pursuant to

§ 3E1.1, but in error receives only a two-point reduction, the fairness of the sentencing proceeding is seriously called into question. In addition, the integrity of the sentencing guidelines in general is called into question where the guidelines are not uniformly applied. The sentencing guidelines were enacted in order to promote uniformity in sentencing. U.S.S.G. Ch. 1, Pt. A(3); see 18 U.S.C. § 3553(a)(6). Where courts allow a defendant to be sentenced based on an erroneous guideline calculation that does not account for the defendant’s early decision to plead guilty, while similarly situated defendants are given credit for this same conduct, it defeats the purpose of uniform sentencing.

This Court has found plain error in sentencing calculations in several cases. In United States v. Mitchell, 49 F.3d 769 (D.C. Cir. 1995), the Court held that, given the district court’s finding that Mitchell was less culpable than others, it was plain error for the district court not to consider Mitchell’s eligibility for a two-point reduction for being a "minor participant" in a drug ring. The Court has also reversed for plain error where the district court improperly calculated a sentence on a charge of felon in possession of a firearm, even though the district court had already imposed a life sentence on a related robbery charge, United States v. Kennedy, 133 F.3d 53 (D.C. Cir. 1998), cert. denied, 119 S. Ct. 255 (1998), and where the district court calculated an offense level based on an amount of drugs that was not supported by evidence in the record, United States v. Saro, 24 F.3d 283 (D.C. Cir. 1994). Mr. xxxxxxxx also should be resentenced based on a correct guideline calculation as there was a plain sentencing error made by the district court that resulted in likely prejudice to him and that substantially affected the fairness of his sentencing proceedings.

CONCLUSION

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

________________________________

Evelina J. Norwinski

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant Adetubokun xxxxxxxx

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing Brief for Appellant does not exceed the number of words permitted by D. C. Circuit Rule 28(d).

_________________________________

Evelina J. Norwinski