                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2008

USA v. Drennon
Precedential or Non-Precedential: Precedential

Docket No. 06-3399




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"USA v. Drennon" (2008). 2008 Decisions. Paper 1495.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1495


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                              PRECEDENTIAL

     IN THE UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                          NO. 06-3399


              UNITED STATES OF AMERICA

                                v.

                    MICHAEL DRENNON
                        Appellant


       On Appeal From the United States District Court
          For the Eastern District of Pennsylvania
           (D.C. Crim. Action No. 05-cr-00647)
          District Judge: Hon. Timothy J. Savage


      Submitted Pursuant to Third Circuit LAR 34.1(a)
                    December 11, 2007

         BEFORE: RENDELL and STAPLETON,
        Circuit Judges, and IRENAS, District Judge*


* Hon. Joseph E. Irenas, Senior District Judge for the District of
New Jersey, sitting by designation.
             (Opinion Filed February 20, 2008)




Mary E. Crawley
Office of the United States Attorney
615 Chestnut Street – Suite 1250
Philadelphia, PA 19106
 Attorney for Appellee

Robert Epstein
Defender Association of Philadelphia
Federal Court Division
The Curtis Center - Suite 540 West
601 Walnut Street
Philadelphia, PA 19106
Attorney for Appellant




                OPINION OF THE COURT




                              2
STAPLETON, Circuit Judge:

        Michael Drennon pled guilty to bank robbery in violation
of 18 U.S.C. § 2113(a) and was sentenced to 51 months of
incarceration for his crime. At sentencing, Drennon asked for,
and received, a two-level downward adjustment of his offense
level under U.S.S.G. § 3E1.1(a) for acceptance of responsibility.
He also requested an additional one-level downward adjustment
pursuant to U.S.S.G. § 3E1.1(b) which, upon motion by the
government, permits such an adjustment when the defendant
“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 government and the court to allocate
their resources efficiently.” The government declined to file a
§ 3E1.1(b) motion, however, and for that reason, the Court
denied Drennon the adjustment he sought. Drennon now
appeals.

                                I.

        Drennon robbed Bensalem Bank on October 17, 2005,
passing the teller a handwritten note made out on the back of a
pay stub bearing his name. He was arrested shortly thereafter.
Prior to trial, Drennon decided to challenge the constitutionality
of an identification made by one of the bank’s tellers. After an
evidentiary hearing during which the government called its three
key witnesses, the District Court denied the motion.
Subsequently, approximately a month before his trial was
scheduled to begin, Drennon pled guilty. There was no plea
agreement between the parties.



                                3
        At sentencing, in response to Drennon’s request for an
adjustment under U.S.S.G. §3E1.1(b), the government took the
position that “the large majority of the work to prepare for trial
had been done in connection with the suppression hearing.”
Because Drennon had not notified the government of his
intention to plead guilty until after that hearing, it declined to
file a motion of the kind contemplated by § 3E1.1(b). Drennon
urged the Court to make a downward adjustment, nevertheless,
because the government’s decision on whether to file the motion
had not been made in good faith. The District Court concluded
that it could not grant the adjustment in the absence of a
government motion and determined that the Guideline range was
51 to 63 months.

                               II.

       Prior to 2003, a District Court could grant a one-level
downward adjustment based on its own assessment of whether
the defendant’s guilty plea had saved judicial and prosecutorial
resources. In 2003, the rule was changed to take this discretion
from the District Court and vest it in the U.S. Attorney’s office.
Section 3E1.1(b) now reads:

       “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

                                4
       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.”

U.S.S.G. § 3E1.1 (2007) (emphasis added). As explained in the
Application Note, this change was made “[b]ecause the
Government is in the best position to determine whether the
defendant has assisted authorities in a manner that avoids
preparing for trial,” and therefore, “an adjustment under
subsection (b) may only be granted upon a formal motion by the
Government at the time of sentencing.” Id. app. note 6; see also
United States v. Sloley, 464 F.3d 355 (2d Cir. 2006).

       Drennon does not dispute that a motion from the
government is normally a necessary predicate to the granting of
a downward adjustment under § 3E1.1(b). He argues, however,
that the government’s explanation for its refusal to file
demonstrates that it is the product of “bad faith.”

       The relevant text of § 3E1.1(b) tracks that of U.S.S.G. §
5K1.1 which requires a motion from the government before any
downward departure may be granted based upon the defendant’s
cooperation with the government. In each instance, the purpose
of the requirement is to insist that the necessary exercise of
discretion be informed by the unique perspective of the
government. This similarity of text and purpose leads us to the
conclusion that our § 5K1.1 jurisprudence is particularly helpful
in applying § 3E1.1(b).

       In the context of § 5K1.1, we have rejected an argument

                                5
much like that pressed by Drennon here. In United States v.
Gonzales, 927 F.2d 139 (3d Cir. 1991), we held that a “district
court could not depart downward under Guideline § 5K1.1 ‘in
the absence of a government motion based on defendant’s
cooperation’” and that there was no “bad faith” exception to this
rule where, as here, the government has not committed itself in
a plea agreement to file such a motion.1 Id. at 145 (quoting from
United States v. Bruno, 897 F.2d 691 (3d Cir. 1990). Instead,
we recognized, as the Supreme Court has put it, “the condition
limiting the court’s authority [under § 5K1.1] gives the
government a power, not a duty, to file a motion when a
defendant has substantially assisted.” Wade v. United States,
504 U.S. 181, 185 (1992). Accordingly, the absence of a
government motion left the District Court powerless to grant the
adjustment sought under § 5K1.1, just as it does under §
3E1.1(b).

       While § 3E1.1(b) itself thus requires full deference to the
government’s assessment of the timeliness of the plea under the
standards set forth in that section, its discretion is nevertheless
subject, of course, to constitutional restraints. As the Supreme
Court held in Wade, 504 U.S. at 186, in the context of § 5K1.1:

      1
       When the government has committed itself in a plea
agreement to file a § 5K1.1 motion, traditional principles of
contract law require a good faith exercise of discretion on the
part of the government. United States v. Abuhouran, 161 F.3d
206, 212 (3d Cir. 1998) (“contract law principles apply because,
without them, the defendant would be deprived of the benefit of
the bargain and his plea would be involuntary:); United States
v. Isaac, 141 F.3d 477 (3d Cir. 1998).
                                6
       Because we see no reason why courts should treat
       a prosecutor’s refusal to file a substantial-
       assistance motion differently from a prosecutor’s
       other decisions, see, e.g., Wayte v. United States,
       470 U.S. 598, 608-09 (1985), we hold 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.

        As we explained in United States v. Abuhouran, 161 F.3d
206, 212 (3d Cir. 1998), “an unconstitutional motive exists
when the government’s decision is based on the defendant’s
race, religion, or gender.” Moreover, the “government also acts
from an ‘unconstitutional motive’ when its ‘refusal to move was
not rationally related to any legitimate government end.’” Id.
(quoting from Wade, 504 U.S. at 186).

        The record in this case does not support a finding that the
government’s refusal to file a § 3E1.1(b) motion was
attributable to an unconstitutional motive. The dispute here is
about the character and extent of the professional services
invested by the government prior to the plea. These are matters
committed to the discretion of the government. Drennon may
disagree with the government about such matters, just as the
petitioner in Wade disagreed with the government about whether
he had rendered substantial assistance, but here, as there, the
disagreement is not sufficient alone to carry the day. While
Drennon suggests that the government’s decision was not
rationally related to a legitimate governmental end, the record
provides no basis for concluding that it was motivated by

                                7
anything other than a concern for the efficient allocation of the
government’s litigating resources. It necessarily follows that the
District Court properly concluded that it had no power to grant
the requested adjustment.2

                               III.

       The judgment of the District Court will be affirmed.




   2
     The cases that Drennon relies on to support his theory are
not to the contrary. In none of them did the government suggest
that its preparation for the suppression hearing was tantamount
to preparing for trial, or point to other specific actions it had
undertaken to prepare for trial. See United States v. Marquez,
337 F.3d 1203, 1211 (10th Cir. 2003); United States v. Price,
409 F.3d 436, 443 (D.C. Cir. 2005); United States v. Morroquin,
136 F.3d 220, 222 (1st Cir. 1998). By contrast, the government
here explained that its preparation for Drennon’s pre-trial
hearing amounted to trial preparation, which is something we
have no reason to doubt. Accordingly, it was well within its
rights in refusing to file the § 3E1.1 motion.
                                8
