                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-3552

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

T RISTAN D AVIS,
                                            Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
             No. 2:11cr182-001—James T. Moody, Judge.



     S UBMITTED M ARCH 15, 2013—D ECIDED A PRIL 9, 2013




  Before E ASTERBROOK, Chief Judge, and M ANION and
R OVNER, Circuit Judges.
  P ER C URIAM. Tristan Davis repeatedly gave false ad-
dresses when purchasing guns, six of which were later
recovered from persons who could not lawfully possess
them. Davis contends that the guns were stolen from
him. He pleaded guilty to two counts of lying to gun
dealers. 18 U.S.C. §§ 922(a)(6), 924(a)(1)(A). Other charges
were dismissed as part of a plea bargain.
2                                               No. 12-3552

  Davis was sentenced to 18 months’ imprisonment.
His offense level, and perhaps the sentence too, would
have been lower had the district judge given him
a three-level reduction for accepting responsibility by
pleading guilty. It deducted only two levels, because
the prosecutor declined to move for the subtraction of a
third level under U.S.S.G. §3E1.1(b). The prosecutor
wanted Davis to waive his right to appeal, and his
refusal to do that led the prosecutor to withhold
the motion. 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, but he acknowledges that we
rejected that contention in United States v. Deberry, 576
F.3d 708 (7th Cir. 2009), which holds that §3E1.1(b)
confers an entitlement on the prosecutor, not on the de-
fendant. In this respect §3E1.1(b) functions like the pros-
ecutor’s entitlement to move for a below-minimum sen-
tence. See U.S.S.G. §5K1.1. The prosecutor may with-
hold such a motion for any reason that does not vio-
late the Constitution. Wade v. United States, 504 U.S. 181
(1992). Deberry concluded that §3E1.1(b) should be under-
stood the same way, with the same limit.
  Two courts of appeals have sided with Davis’s conten-
tion that a court may direct the prosecutor to file a
motion under §3E1.1(b) even if the prosecutor’s rea-
son for withholding that motion does not violate the
Constitution. United States v. Lee, 653 F.3d 170, 174–75 (2d
Cir. 2011); United States v. Divens, 650 F.3d 343, 346–47
(4th Cir. 2011). Four courts of appeals have reached
the same conclusion as Deberry. United States v. Collins,
No. 12-3552                                              3

683 F.3d 697 (6th Cir. 2012); United States v. Johnson, 581
F.3d 994, 1003 (9th Cir. 2009); United States v. Beatty,
538 F.3d 8, 16–17 (1st Cir. 2008); United States v.
Newson, 515 F.3d 374, 378–79 (5th Cir. 2008). 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. See Buchmeier v. United
States, 581 F.3d 561, 566 (7th Cir. 2009) (en banc).
                                                A FFIRMED




  R OVNER , Circuit Judge, concurring. As the court
correctly observes, and as Davis himself recognizes, the
outcome of this appeal is controlled by our decision in
United States v. Deberry, 576 F.3d 708 (7th Cir. 2009).
I accept and respect Deberry as the law of this circuit.
I write separately, however, to explain why I do not
believe that section 3E1.1(b) of the Guidelines permits
the government to insist that a defendant waive his
appellate rights before it will ask the court to grant him
an additional one-level decrease in his offense level
for acceptance of responsibility.
  For a defendant who waives his right to a trial and
pleads guilty, the right to an appeal remains important
4                                            No. 12-3552

primarily as a means to address any errors that may
occur at his sentencing. (I am setting aside the much
smaller set of cases in which a defendant may have
a legitimate ground on which to challenge the validity
of his guilty plea.) Obviously, a defendant and his coun-
sel cannot know whether such a sentencing error has
occurred until he is actually sentenced. Yet, we as
appellate judges know that such errors occur with reg-
ularity. Sentencing judges must apply a relatively
complex set of guidelines to the unique facts sur-
rounding a defendant’s criminal conduct and history;
and following that, they must independently determine,
in light of broader statutory criteria, see 18 U.S.C.
§ 3553(a), what they believe to be a reasonable sentence.
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 unreason-
able. We routinely vacate sentences and remand for
resentencing to correct these and other kinds of sen-
tencing errors. These errors are rarely, if ever, attrib-
utable to the defendant; the responsibility typically
lies with the court, sometimes with the knowing or
unknowing complicity of the attorneys. Correction of
such errors serves both the defendant’s right to due
process and a public interest in fair and accurate sen-
tencing. In sum, reserving the defendant’s right to raise
sentencing errors on appeal has absolutely nothing to
do with his acceptance of responsibility for his crime.
No. 12-3552                                               5

And, conversely, insisting that he waive his right to
appeal before he may receive the maximum credit
under the Guidelines for accepting responsibility serves
none of the interests identified in section 3E1.1.
  When 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 2003, P.L. 108-21,
117 Stat. 650, 671-72 (Apr. 30, 2003) (the “PROTECT Act”),
the authority to assess a defendant’s qualification for
the extra reduction in his offense level for acceptance
of responsibility was transferred from the sentencing
judge to the government. And what previously had
been a mandatory reduction, provided the defendant
met the criteria for it, became a reduction dependent on
the government’s unilateral decision to request it of the
court. Deberry, 576 F.3d at 710. In Deberry, we likened
the breadth of the government’s discretion in deciding
whether to solicit the reduction to its wide latitude in
requesting a sentence reduction based on a defendant’s
substantial assistance in the investigation or prosecution
of another person, see 18 U.S.C. § 3553(e); Fed. R. Crim.
P. 35(b); U.S.S.G. § 5K1.1, and in deciding whether
and how to charge the defendant in the first instance.
576 F.3d at 710-11.
  Yet, the government’s discretion with respect to the
extra reduction for acceptance of responsibility is not
unlimited. As we acknowledged in Deberry, the govern-
ment may not refuse to recommend the reduction for
an invidious reason or for a reason “unrelated to a legiti-
mate governmental objective.” 576 F.3d at 711. Those
6                                                 No. 12-3552

were the sole limitations that the Supreme Court’s deci-
sion in Wade v. United States, 504 U.S. 181, 185-86, 112
S. Ct. 1840, 1843-44 (1992), imposed on the govern-
ment’s power to request a sentence reduction for the
defendant’s substantial assistance pursuant to 18 U.S.C.
§ 3553(e) and U.S.S.G. § 5K1.1. Relying on the nearly
unbridled discretion that the Wade standard reserved to
the government, we concluded that it was permissible
for the government to condition its assent to extra
credit for acceptance of responsibility on the defendant’s
agreement to waive his appellate rights. 576 F.3d at 711.
We reasoned that an appeal waiver would spare the
government the need to defend the defendant’s convic-
tion and sentence on appeal; and the government’s
wish to avoid the cost and uncertainty associated with
an appeal “was a legitimate desire, closely related to
the express criteria in subsection (b)” of the guideline. Id.
  But, given the language of section 3E1.1., I believe the
limitations on the government’s discretion are greater
than we recognized in Deberry. Although the PROTECT
Act made the government the arbiter of whether a defen-
dant ought to receive the extra reduction for acceptance
of responsibility, see 576 F.3d at 710, the straightfor-
ward terms of both the guideline and the accompanying
commentary specify the criteria that control the govern-
ment’s assessment. Subsection (b) of the guideline de-
scribes the motion that must be filed by the govern-
ment soliciting the reduction as one “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
No. 12-3552                                              7

permitting the government to avoid preparing for trial and
permitting the government and the court to allocate their
resources efficiently.” (Emphasis mine.) The plain focus of
this language is on the defendant’s timely notification
that he intends to plead guilty, an act which spares
both the government and the court the need to prepare
for trial. Application Note 6 reinforces the point when
it observes:
   . . . In general, the conduct qualifying for a decrease
   in offense level under subsection (b) will occur par-
   ticularly early in the case. For example, to qualify
   under subsection (b), the defendant must have
   notified authorities of his intention to enter a plea
   of guilty at a sufficiently early point in the process
   so that the government may avoid preparing for trial and
   the court may schedule its calendar efficiently.
   Because the [g]overnment 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 [g]overnment
   at the time of sentencing.
§ 3B1.1, comment. (n.6.) (emphasis mine) (citation omit-
ted). The background commentary adds that a defendant
who has met the criteria set forth in subsection (b) “has
accepted responsibility in a way that ensures the
certainty of his just punishment in a timely manner,
thereby appropriately meriting an additional reduction.”
(Emphasis mine.)
8                                              No. 12-3552

   Section 3E1.1(b) is thus explicit about what conduct
warrants the favorable exercise of the government’s
discretion. In that respect, as the Fourth Circuit pointed
out in United States v. Divens, 650 F.3d 343, 345-46 (4th
Cir. 2011), section 3E1.1(b) stands in contrast to sec-
tion 5K1.1, which supplies no meaningful standard by
which the government is to determine whether the de-
fendant has provided substantial assistance in the in-
vestigation or prosecution of another person. See also
18 U.S.C. § 3553(e). It was in the absence of such a
standard that the Supreme Court concluded in Wade
that the government’s wide discretion is bounded
solely by its obligation not to engage in invidious dis-
crimination or rely on a rationale that is unrelated to a
legitimate government objective. 504 U.S. at 185-86, 112
S. Ct. at 1843-44. Section 3E1.1., by citing both the
conduct (the timely announcement of the defendants’
intent to plead guilty) and corresponding benefit
(relieving the government of the need to prepare for
trial and clearing the court’s calendar) which will
“merit[ ]” an additional reduction in the offense
level, places more significant limits on the govern-
ment’s authority. The government “retains discretion
to determine whether the defendant’s assistance has re-
lieved it of preparing for trial.” Divens, 650 F.3d at 346
(emphasis in original); see also Alexa Chu Clinton, Com-
ment, Taming the Hydra: Prosecutorial Discretion Under
the Acceptance of Responsibility Provision of the U.S. Sen-
tencing Guidelines, 79 U. Chi. L. Rev. 1467, 1499-1510
(2012) (discussing what interests related to the conserva-
tion of trial resources might appropriately be con-
No. 12-3552                                               9

sidered in exercise of government’s discretion under sec-
tion 3E1.1(b)). But once it has answered that question in
the affirmative, it is obliged to move for the additional
reduction; it may not require more of the defendant
than the guideline itself does, including in particular
a waiver of the defendant’s right to appeal. See id. at 348-
50; see also United States v. Lee, 653 F.3d 170, 173-75 (2d
Cir. 2011) (government may not withhold motion
based on defendant’s challenge to presentence report,
which necessitate evidentiary hearing).
  Section 3E1.1 says nothing about a defendant’s wil-
lingness to waive his right to an appeal nor the interests
that such a waiver serves. Certainly the government
may have legitimate reasons to want such a waiver: as
Deberry recognizes, the waiver spares the government
the burden and uncertainty of defending the judgment
on appeal, 576 F.3d at 711; the waiver also has the
salutary effect of clearing our own appeals calendar.
But these are interests which are both unmentioned
by the guideline and its commentary and which are
meaningfully distinct from the interests that are men-
tioned. The guideline and commentary do not speak to
the universe of acts that might ease the government’s
(or the judiciary’s) burden or which promote the
efficient resolution of criminal cases. To state the ob-
vious, the guideline is aimed at the defendant’s ac-
ceptance of responsibility for his offense, not the stream-
lining of prosecutorial and judicial dockets.
  It is true, as other courts have pointed out, that the
guideline does mention the efficient allocation of re-
10                                               No. 12-3552

sources. See United States v. Collins, 683 F.3d 697, 706
(6th Cir.), cert. denied, 133 S. Ct. 571 (2012); United States
v. Johnson, 581 F.3d 994, 1006 (9th Cir. 2009). But it does
so in a specific context, describing a defendant who is
eligible for the extra reduction as one who, as a result
of giving timely notice of his intent to plead guilty,
relieves the government of the burden of trial prepara-
tion and permits both the government and the court
to allocate their resources efficiently. The provision as
written is clearly focused on the efficiencies gained by
not having to prepare for trial. See id. at 1008-11 (M.D.
Smith, J., concurring in part & dissenting in part); Laura
Waters, Note, A Power and a Duty: Prosecutorial Discretion
and Obligation in United States Sentencing Guideline
§ 3E1.1(b), 34 Cardozo L. Rev. 813, 829 (2012). Those
efficiencies are dependent on the timeliness of a defen-
dant’s declaration of his intent to plead guilty; other
efficiencies, including those resulting from a defendant’s
willingness to forego his right to appellate review, are
not so time-dependent.
  In short, the guideline and commentary focus
explicitly and exclusively on avoiding the need to
prepare for trial (and clearing the district court’s trial
calendar). No proceeding or event that might occur
later is mentioned or even hinted at.
  The guideline’s silence as to the two principal events that
take place after the defendant’s guilt is determined—
sentencing and appeal—is both understandable and
logical. A defendant knows what crimes he has or has
not committed and thus is entirely able, without a trial,
No. 12-3552                                             11

to accept responsibility for his criminal behavior by
pleading guilty. But the responsibility to determine
what sentence should be imposed on the defendant for
his crime belongs to the judge and the judge alone. See
Lee, 653 F.3d at 174. A defendant typically does not
know in advance what the sentence will be, nor can
he know whether the court will commit some error in
the sentencing process until the sentencing has taken
place. Only then can he know whether there is a ground
for appeal. (Again, I am setting aside potential chal-
lenges to the plea.) He can of course waive his right to
challenge on appeal the reasonableness of the sentence
and any sentencing errors the court may have made,
but that waiver has nothing whatsoever to do with ac-
ceptance of responsibility for his own conduct. A defen-
dant has a right to be sentenced accurately and fairly.
Nothing in section 3E1.1 requires the defendant to
accept responsibility for the court’s errors as well as
his own.
   Where, as here, the government has declined to move
for a section 3E1.1(b) reduction solely because the defen-
dant has not executed an appeals waiver, it has abused
its limited discretion under the guideline. In such an
instance the court can, and indeed must, grant the de-
fendant the extra reduction in his offense level notwith-
standing the absence of a motion from the government.
See Deberry, 576 F.3d at 711 (where government has with-
held motion on illegitimate ground, the court “must
ignore the absence of the motion”). I recognize that, given
the substantial sentencing discretion district courts
enjoy now that United States v. Booker, 543 U.S. 220, 125
12                                                No. 12-3552

S. Ct. 738 (2005), has rendered the Guidelines advisory,
a sentencing judge may effectively grant a defendant
more credit for his acceptance of responsibility than the
government has chosen to do. See Deberry, 576 F.3d at
711. Nonetheless, a defendant has a right to the correct
application of the Guidelines in the first instance, see
Gall v. United States, 552 U.S. 38, 49, 50 n.6, 128 S. Ct. 586,
596 & n.6 (2007); United States v. Glosser, 623 F.3d 413,
418 (7th Cir. 2010); United States v. Nelson, 491 F.3d 344,
347 (7th Cir. 2007); see also Waters, 34 Cardozo L. Rev. at
840-41, and in my view, that includes a right to an addi-
tional one-level reduction in his offense level when he
has satisfied the criteria set forth in section 3E1.1(b). See
Tziporah Schwartz Tapp, Recent Development, Refusing
to Compare Apples and Oranges: Why the Fourth Circuit
Got It Right in United States v. Divens, 90 N. C. L. Rev.
1267, 1273 & nn. 43-44 (2012) (noting that, in practice,
extra one-level reduction in offense level pursuant to
section 3E1.1(b) raises reduction in sentence for ac-
ceptance of responsibility from 20 to 28 percent) (citing
Ricardo J. Bascuas, The American Inquisition: Sentencing
After the Federal Guidelines, 45 Wake Forest L. Rev. 1, 42-43
(2010)).
  I would add, finally, that in view of the division of the
circuits on this question, and the regularity with which
the government seeks appeal waivers, this is a subject
that would genuinely benefit from the further guidance
of the Sentencing Commission.

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