                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 09-1111

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

F LOYD D EBERRY,
                                            Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
              No. 2:08-CR-107—Philip P. Simon, Judge.



      A RGUED JULY 7, 2009—D ECIDED A UGUST 11, 2009




 Before P OSNER, K ANNE, and SYKES, Circuit Judges.
  P OSNER, Circuit Judge. The defendant pleaded guilty
to being a felon in possession of a gun and was sen-
tenced to 57 months in prison. The only ground of his
appeal is that the government should have filed a
motion under section 3E1.1(b) of the federal sentencing
guidelines, which would have entitled him to a further
sentencing discount for acceptance of responsibility.
  Section 3E1.1 provides that “(a) If the defendant
clearly demonstrates acceptance of responsibility for his
2                                               No. 09-1111

offense, decrease the offense level by 2 levels. (b) If the
defendant qualifies for a decrease under subsection (a), the
offense level determined prior to the operation of sub-
section (a) is level 16 or greater, and upon motion of
the government stating that the defendant has assisted
authorities in the investigation or prosecution of his
own misconduct by timely notifying the authorities of
his intention to enter a plea of guilty, thereby per-
mitting the government to avoid preparing for trial and
permitting the government and the court to allocate
their resources efficiently, decrease the offense level by
1 additional level” (emphasis added).
  The defendant argues, and for purposes of our decision
we shall assume, that he satisfied all the requirements of
subsection (b) except that the government refused to file
a motion. The ground of its refusal was the defendant’s
refusal to agree to waive his right to appeal his con-
viction or sentence. He argues that if the premise of such
a motion is established—that is, if “the defendant has
assisted authorities in the investigation or prosecution
of his own misconduct by timely notifying the 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 must file
the motion.
  The defendant’s argument misunderstands the guide-
line. Subsection (a) confers an entitlement on the defen-
dant: if he satisfies the criteria in the subsection, he is
entitled to a two-level reduction in his offense level. That
No. 09-1111                                                  3

does not necessarily mean that he’ll get a lighter sen-
tence, because the judge does not have to give a sen-
tence within the applicable guidelines range. But the
judge has to calculate that range and start his sentencing
analysis from there. Nelson v. United States, 129 S. Ct. 890
(2009) (per curiam); United States v. Mendoza, 510 F.3d 749,
754 (7th Cir. 2007). Subsection (b) confers an entitlement
on the government: if it wants to give the defendant addi-
tional credit for acceptance of responsibility, perhaps to
induce additional cooperation, and can satisfy the
criteria in the subsection, it can file a motion and the
defendant will get the additional one-level reduction in
his offense level, though again this may not determine
his actual sentence.
  Until subsection (b) was amended in 2003 to specify
that the relief granted must be in response to a motion
by the government, the defendant was entitled, just as
subsection (a) entitles defendants, to relief if the criteria
were met. United States v. Townsend, 73 F.3d 747, 755-56
(7th Cir. 1996). The amendment turned subsection (b) into
a license for prosecutorial discretion. A duty was con-
verted to a power. Just as the government can decide to
reduce the charges against a defendant because of his
cooperation, it can decide to give him a break in the
calculation of his guideline sentencing range if his accep-
tance of responsibility saves prosecutorial resources.
United States v. Beatty, 538 F.3d 8, 14-17 (1st Cir. 2008), and
cases cited there.
  It has almost the same latitude in deciding whether to
give a defendant that break (and similar breaks under
4                                                 No. 09-1111

other sentencing provisions, see U.S.S.G. § 5K1.1; Fed. R.
Crim P. 35(b); 18 U.S.C. § 3553(e)) as it does in deciding
whether to charge him in the first place, or what to
charge him with. United States v. Kelly, 336 F.3d 897, 902
(7th Cir. 2003); United States v. Mulero-Algarin, 535 F.3d
34, 38-39 (1st Cir 2008); United States v. Sloley, 464 F.3d
355, 360 (2d Cir. 2006). It may not base a refusal to file
a motion under section 3E1.1(b) on an invidious ground,
or (and here is where the government’s discretion is less
extensive than it is with regard to charging decisions) on
a ground unrelated to a legitimate governmental objec-
tive. Wade v. United States, 504 U.S. 181, 185-86 (1992);
United States v. Richardson, 558 F.3d 680, 682 (7th Cir. 2009);
see also United States v. Mulero-Algarin, supra, 535 F.3d at
38-39; In re United States, 503 F.3d 638, 641 (7th Cir. 2007);
United States v. Butler, 272 F.3d 683, 687 (4th Cir. 2001);
compare United States v. Moore, 543 F.3d 891, 899-900
(7th Cir. 2008); United States v. Smith, 502 F.3d 680, 690-91
(7th Cir. 2007).
  Of course, with the guidelines now advisory rather
than mandatory, the refusal of the government to file
such a limitation is not the end of the line for the defen-
dant. Having broad discretion to deviate from the guide-
lines in sentencing a defendant, the judge can if he
wants ignore the absence of a motion and use the
criteria in subsection (b), or any other criteria consistent
with the statutory sentencing factors in 18 U.S.C. § 3553(a),
to lower the defendant’s sentence. But he must ignore
the absence of the motion if the failure to file it was
unreasonable.
No. 09-1111                                                5

  There was nothing unreasonable about the govern-
ment’s deciding not to file the motion in this case, how-
ever. It wanted an appeal waiver in order to avoid the
expense and uncertainty of having to defend the defen-
dant’s conviction and sentence on appeal. That was a
legitimate desire, closely related to the express criteria in
subsection (b). And the government was proposing to
compensate the defendant for giving up his appeal right
by moving for the additional sentencing credit. United
States v. Richardson, supra, 558 F.3d at 682; United States
v. Newson, 515 F.3d 374, 378 (5th Cir. 2008); United States
v. Espinoza-Cano, 456 F.3d 1126, 1138 (9th Cir. 2006).
  And since Deberry had no appellate issues, waiving
appeal in exchange for an additional one-level reduction
in his offense level would have been a good deal for him.
The only argument he makes on appeal concerns that
additional reduction, which he could have had for free
in the district court. His failure to raise any other issue
on appeal shows that accepting the deal offered by the
government would have cost him nothing.
                                                  A FFIRMED.




                           8-11-09
