                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-4165
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                 Bralen Lamar Jordan

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                           Submitted: September 18, 2017
                              Filed: December 7, 2017
                                   ____________

Before COLLOTON, BENTON, and KELLY, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       Bralen L. Jordan pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1 denied his
request for a third level of reduction for acceptance of responsibility under U.S.S.G.

      1
       The Honorable D.P. Marshall, Jr., United States District Judge for the Eastern
District of Arkansas.
§ 3E1.1(b). Jordan appeals. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.

       In 2014, Jordan pled guilty to unlawfully possessing a firearm. At sentencing,
the district court decreased his offense level by two for acceptance of responsibility
under U.S.S.G. § 3E1.1(a). The government declined to move for the third level
under § 3E1.1(b). Jordan did not object. The district court sentenced him as an
armed career criminal. He appealed. This court reversed the armed career criminal
determination and remanded for resentencing. United States v. Jordan, 812 F.3d
1183, 1187 (8th Cir. 2016). In a supplemental memorandum, Jordan requested the
court decrease his offense by three levels under “U.S.S.G. § 3E1.1(a).” The
government responded that “the third point reduction is only made upon motion of
the government.” It again refused to move for the reduction under § 3E1.1(b). At the
resentencing hearing, Jordan requested the reduction. He did not mention, let alone
argue, that the government’s refusal was error. The district court denied the third
level because the government did not move for it.

       This court reviews the district court’s “failure to grant a § 3E1.1(b) reduction”
for clear error. United States v. Moore, 683 F.3d 927, 931 (8th Cir. 2012). If a
defendant does not make “sufficiently specific objections” before the district court,
the claim is reviewed for plain error. United States v. MacInnis, 607 F.3d 539, 542
(8th Cir. 2010).

      Jordan did not make “sufficiently specific objections” to the government
withholding the reduction. See id. At resentencing, Jordan’s counsel said:

      The next issue is whether or not to award the third point, and the
      government objects, said they’re not going to do it. But in light of
      everything’s he’s done since he’s been arrested, I think the Court should
      go ahead and award him the third point. I know it’s discretionary with
      the Court. But he’s not done anything as far as being inconsistent with

                                          -2-
       the plea of guilty, other than he appealed, and he appealed and he was
       right and we’re back here for resentencing.

The court immediately responded:

       That request is overruled, Mr. Adams. Mr. Jordan, the Court only gets
       involved on the third point if the United States makes a motion. And so
       I don’t have any role to play in that because Ms. Mazzanti has been clear
       that the United States is not going to ask for the third point. So I just
       don’t get there, I can’t get there under the law, whether you’re entitled
       to that third point.

The court made clear that a § 3E1.1(b) reduction is appropriate only “upon motion of
the government.” See U.S.S.G. § 3E1.1(b). Although Jordan requested the
reduction, he did not ask why the government refused to move for it or argue that the
refusal was error. Thus, he did not preserve his objection. Cf. United States v.
Stacey, 531 F.3d 565, 568 (8th Cir. 2008) (holding defendant did not waive his
objection where his counsel asked for “an explanation as to why the additional
one-level reduction had been refused” and allowed the court “ample time to prevent
or correct any error”).

       Because he did not specifically object, this court reviews for plain error. See
MacInnis, 607 F.3d at 542 (reviewing for plain error where the defendant “failed to
make sufficiently specific objections to put the government on notice of what the
government needed to prove at sentencing”). “Under plain error review, the
defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial
rights. If a defendant makes that showing, an appellate court may exercise its
discretion to correct a forfeited error only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” Id.




                                            -3-
      United States Sentencing Guideline § 3E1.1 provides:

      (a) If the defendant clearly demonstrates acceptance of responsibility for
      his 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 subsection (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 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, decrease the offense level by 1
      additional level.

       “[A]n adjustment under subsection (b) may only be granted upon a formal
motion by the Government at the time of sentencing.” United States v. Smith, 422
F.3d 715, 726 (8th Cir. 2005), quoting U.S.S.G. § 3E1.1(b), cmt. 6. The
government’s “failure to file a § 3E1.1(b) motion must be rationally related to a
legitimate governmental end[.]” Id. The district court may not order the government
to file the motion unless the government’s refusal was based on unconstitutional
motive. See United States v. Moeller, 383 F.3d 710, 712 (8th Cir. 2004), quoting
Wade v. United States, 504 U.S. 181, 185-86 (1992) (holding that “federal district
courts have authority to review a prosecutor’s refusal to file a substantial-assistance
motion and to grant a remedy if they find that the refusal was based on an
unconstitutional motive”).

      Jordan does not argue unconstitutional motive. Citing United States v.
Wattree, 431 F.3d 618 (8th Cir. 2005), he argues the government “acted in bad faith
when it refused to move for the third point reduction.” In Wattree, this court said,
“So long as the government’s refusal to file the required motion is not motivated by
bad faith or an unconstitutional motive, the district court may not order the


                                         -4-
government to file the motion.” Wattree, 431 F.3d at 624. Wattree was this court’s
first case to consider bad faith as a standard for ordering a § 3E1.1(b) motion. Id.,
citing Moeller, 383 F.3d at 713. However, it did so based on Moeller, a case that
rejected bad faith as a basis for ordering the government to file a substantial
assistance motion. See Moeller, 383 F.3d at 713 (“bad faith is not a constitutional
standard”). Thus, arguably there are two different lines of cases. Moeller was
decided before Wattree, and this court will follow it. See Mader v. United States,
654 F.3d 794, 800 (8th Cir. 2011) (en banc) (“We definitively rule today, in
accordance with the almost universal practice in other federal circuits, that when
faced with conflicting panel opinions, the earliest opinion must be followed as it
should have controlled the subsequent panels that created the conflict.”) (internal
quotation marks and citations omitted). Bad faith is not a basis for the court to order
the government to file a § 3E1.1(b) motion.

       Ignoring the “bad faith” label, Jordan’s claim still fails. Jordan believes the
government’s “sole reason for not moving for the third point reduction”—that “it had
to prepare for a contested sentencing hearing”—is not a proper basis to withhold the
motion. This belief is without merit. The government’s refusal to move for the third
level was not unconstitutional and was rationally related to an interest identified in
§ 3E1.1(b) (a legitimate governmental end): Jordan’s denial of relevant conduct did
not “permit[] the government and the court to allocate their resources efficiently.”
See U.S.S.G. § 3E1.1(b). See also U.S.S.G. § 3E1.1 cmt. n.6 (“The government
should not withhold such a motion based on interests not identified in § 3E1.1.”).

       Jordan pled guilty to being a felon in possession of a firearm. But, he denied
conduct relevant to sentencing—possessing the firearm in connection with another
felony. To establish this conduct at his first sentencing, the government had to
subpoena and present testimony of six witnesses in a hearing lasting almost four
hours.


                                         -5-
       Based on United States v. Lee, 653 F.3d 170 (2d Cir. 2011), Jordan argues the
government cannot withhold the reduction solely because it was required to prepare
for a contested sentencing hearing. See Lee, 653 F.3d at 174 (holding that “the plain
language of § 3E1.1(b) refers only to the prosecution resources saved when the
defendant’s timely guilty plea ‘permit[s] the government to avoid preparing for trial’”
and not a sentencing hearing), quoting U.S.S.G. § 3E1.1(b). The Sixth Circuit rejects
Lee’s analysis, noting that while the former and current versions of § 3E1.1(b)
identify a government interest in avoiding trial preparation, the amended § 3E1.1(b)
“explicitly identifies a broader government interest in allocating its resources
efficiently.” United States v. Collins, 683 F.3d 697, 706 (6th Cir. 2012). Other
circuits similarly hold that interests beyond trial preparation can justify the
government’s decision to withhold the reduction. See United States v. Nurek, 578
F.3d 618, 625 (7th Cir. 2009) (holding that the government “acted well within its
discretion in withholding a motion for the additional one-point reduction for
acceptance of responsibility under § 3E1.1(b)” where the defendant “frivolously
contest[ed] the obstruction-of-justice enhancement”); United States v. Beatty, 538
F.3d 8, 16 (1st Cir. 2008) (“As amended, the touchstone of § 3E1.1 is no longer trial
preparation, but rather the presence of a government motion for the third-level
reduction. . . . Now, rather than turning on the timeliness of the plea and the
avoidance of trial preparation, the entitlement to the third-level reduction turns on
whether both the court and the government are satisfied that the acceptance of
responsibility is genuine.”) (internal quotation marks and citations omitted); United
States v. Sanders, 208 Fed. Appx. 160, 163 (3d Cir. 2006) (holding that the
government’s withholding of a § 3E1.1(b) motion was justified where the government
reasonably concluded that the defendant did not permit the government or the court
to “allocate their resources efficiently” in requiring a suppression hearing on the
essential element of a 922(g)(1) conviction); United States v. Blanco, 466 F.3d 916,
918 (10th Cir. 2006) (holding that “[e]nsuring efficient resource allocation is a
legitimate government end and a stated purpose of § 3E1.1(b)” and that the
prosecutor’s decision to withhold a § 3E1.1(b) motion when the defendant pleaded

                                         -6-
guilty but requested reweighing of drugs is “rationally related to that end”). But see
United States v. Igboanugo, 655 F. Appx. 578, 580 (9th Cir. 2016) (holding the
government erred in “refusing to move for a § 3E1.1(b) reduction due to Igboanugo’s
refusal to agree to sentencing factors”); United States v. Castillo, 779 F.3d 318, 325-
26 (5th Cir. 2015) (holding that the government may not withhold the third point if
the defendant has a good faith dispute about the accuracy of the factual findings in
the PSR).

       Jordan also invokes amendment 775 to § 3E1.1. U.S.S.G. app. C amend. 775
(effective Nov. 1, 2013). The U.S. Sentencing Commission explained that the
amendment addresses a circuit split about withholding the third level “based on an
interest not identified in § 3E1.1.” Id. Citing several cases, including Lee, the
Commission “determined that the defendant’s waiver of his or her right to appeal is
an example of an interest not identified in § 3E1.1.” Id., citing United States v.
Divens, 650 F.3d 343, 348 (4th Cir. 2011) (holding that § 3E1.1(b) was concerned
only with the “efficient allocation of trial resources, not appellate resources”). It
amended the guideline to say: “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.” U.S.S.G. § 3E1.1 cmt. n.6 (emphasis added).
Although aware of Lee’s holding (that avoiding contested sentencing hearings is not
an interest identified in § 3E1.1), the Commission did not amend the guideline to
include it. If the Commission intended to exclude contested sentencing hearings from
interests identified in § 3E1.1, it could have done so. It did not. Under the plain
language of the guideline, a § 3E1.1(b) reduction is appropriate when the defendant
“permit[s] the government and the court to allocate their resources efficiently.”
U.S.S.G. § 3E1.1(b). Jordan’s denial of relevant conduct did not allow the
government and the court to allocate their resources efficiently. Thus, there was no
error in withholding the reduction. Regardless, given the lack of authority on this
issue in this circuit and a split in authority in other circuits, even if there were error,


                                           -7-
it would not be plain or obvious. See United States v. Lovelace, 565 F.3d 1080, 1092
(8th Cir. 2009) (“A plain error is one that is clear or obvious under current law.”).

      The district court properly denied the reduction.

                                    *******

      The judgment is affirmed.

KELLY, Circuit Judge, concurring in the judgment.

       I write separately because I believe that the Sentencing Commission’s 2013
amendment to § 3E1.1 (Amendment 775) requires us to rethink our analysis of third-
level reductions under § 3E1.1(b).

       Amendment 775 added the following admonition to § 3E1.1’s commentary:
“The government should not withhold . . . a [third-level-reduction] motion based on
interests not identified in § 3E1.1, such as whether the defendant agrees to waive his
or her right to appeal.” See USSG § 3E1.1 cmt. n.6. In making the amendment, the
Sentencing Commission considered Congress’s previous changes to § 3E1.1(b) and
found “no congressional intent to allow decisions under § 3E1.1 to be based on
interests not identified in § 3E1.1.” USSG app. C at 45 (2013). The question in this
case is whether avoiding a contested sentencing hearing is an interest “identified in
§ 3E1.1.”

       The court correctly notes that the Commission did not expressly exclude
“contested sentencing hearings” from the interests “identified in § 3E1.1.” But other
portions of § 3E1.1 and its accompanying commentary lead me to believe that no
interest “identified in § 3E1.1” is served by avoiding a contested sentencing hearing
where non-frivolous objections are resolved by the court.

                                         -8-
       Before a defendant is even eligible for a third-level reduction under § 3E1.1(b),
he first must qualify under § 3E1.1(a) for a two-level reduction. USSG § 3E1.1(b).
He does so by “clearly demonstrat[ing] acceptance of responsibility for his offense.”
USSG § 3E1.1(a). If he earns the two-level reduction, he can then receive an
additional one-level reduction—but only if the government files a motion “stating
that the defendant 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.” USSG
§ 3E1.1(b) (emphasis added). While only the government may file the § 3E1.1(b)
motion, it is the defendant who must first take expressly-identified steps: assist
authorities in the investigation or prosecution of his own misconduct by timely
notifying authorities of his intent to plead guilty. Id.; see also USSG § 3E1.1 cmt. n.6
(“Subsection (b) provides an additional 1-level decrease in the offense level for a
defendant at offense level 16 or greater prior to the operation of subsection (a) who
both qualifies for a decrease under subsection (a) and who has assisted authorities in
the investigation or prosecution of his own misconduct by taking the steps set forth
in subsection (b).”).

        Subsection (b) stresses the importance of “permitting the government to avoid
preparing for trial and permitting the government and the court to allocate their
resources efficiently.” USSG § 3E1.1(b). While these are the ultimate goals of the
subsection, the means by which (“thereby”) they are achieved are also expressly
identified: by the defendant assisting in the investigation or prosecution of his own
misconduct by timely notifying authorities of his intent to plead guilty. Id.; see also
USSG § 3E1.1 cmt. n.6 (“Because the Government is in the best position to determine
whether the defendant has assisted authorities in a manner that avoids preparing for
trial, an adjustment under subsection (b) may only be granted upon a formal motion
by the Government at the time of sentencing.” (emphasis added)). Subsection (b)
speaks of no other interests.

                                          -9-
       In this case, the government argued that Jordan forced it to participate in a
“minitrial to get the four point enhancement,” and asserted that its decision not to
move for the third-level reduction “had to do with the defendant not taking full
responsibility for relevant conduct.” But a defendant who has not accepted
responsibility for the offense of conviction, or who has falsely denied or frivolously
contested relevant conduct, has likely not earned the two-level reduction under
§ 3E1.1(a) in the first instance. See USSG § 3E1.1 cmt. n.1. The government is free
to refuse a third-level reduction motion pursuant to any interest contained in § 3E1.1,
but as acceptance of responsibility under § 3E1.1(a) is an absolute prerequisite to
eligibility for a third-level reduction, the government’s interest in acceptance of
responsibility has already been satisfied by the time the third-level reduction comes
into the picture. Nothing in the plain language of subsection (b) suggests
consideration of the degree to which a defendant has accepted responsibility for the
offense of conviction or some other relevant conduct.

       The government may conclude in a given case that it can more efficiently
allocate its resources if the defendant concedes all of the enhancements it seeks, thus
allowing it to avoid a “minitrial” at sentencing. But the government’s efficiency
interest in § 3E1.1(b) cannot be so broad that a defendant who lodges a non-frivolous
objection to a proposed sentencing enhancement risks losing the third-level reduction
under § 3E1.1(b) simply because the court holds, and the government participates in,
a contested sentencing hearing. Because I agree that any error was not “clear or
obvious under current law,” Lovelace, 565 F.3d at 1092, however, I concur in the
judgment of the court.
                         ______________________________




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