UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 08-5233
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL ANTONIO SANDERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00174-FL-2)
Submitted: January 21, 2010 Decided: March 19, 2010
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Daniel Antonio Sanders pled guilty to being an
accessory after the fact in a Hobbs Act robbery, 18 U.S.C. § 3
(2006), without a plea agreement, and was sentenced to a term of
sixty-three months imprisonment. He appeals his sentence,
arguing that the district court abused its discretion in denying
his request for a one-level downward variance to compensate for
the government’s refusal to move for a one-level reduction under
U.S. Sentencing Guidelines Manual § 3E1.1(b) (2008). We affirm.
Sanders’ co-defendant, Kendricus Williams, robbed a
convenience store and escaped in a vehicle driven by Sanders.
They were immediately pursued by police. Sanders crashed the
vehicle after a high-speed chase; both he and Williams were
arrested. In an unprotected statement to the police following
his arrest, Sanders said he drove Williams to the store not
knowing Williams intended to rob it, but that he saw a gun in
Williams’ waistband when Williams returned to the car, saw
Williams counting money, and heard Williams indicate that he had
robbed the store.
At his sentencing hearing, Sanders challenged an
enhancement recommended in the presentence report for possession
or brandishing of a firearm during the offense under USSG
§ 2B3.1(b)(2)(C). Sanders asserted that he was unaware that
Williams intended to rob the store and was not responsible for
2 conduct that occurred before he knowingly became involved in the
offense. The district court overruled his objection,
specifically holding that the objection was not frivolous. The
court further found that Sanders had accepted responsibility and
awarded him a two-level reduction under USSG § 3E1.1(a).
The government nonetheless characterized Sanders’
objection as frivolous and refused to move for the additional
one-level reduction available under § 3E1.1(b) when the
defendant has “timely notif[ied] 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[.]”
Sanders responded that he had given early notice that
he would plead guilty and requested a one-level variance to
offset the government’s action. The district court decided not
to grant a variance, stating that the government was “within its
province to not move for the reasons it deems appropriate for
that third point of acceptance of responsibility.” When defense
counsel asked the government to explain for the record why it
had refused a motion under § 3E1.1(b), the government stated:
[T]he government has, in its view, applied the application note to 3E1.1 in a manner which accords with the prerogatives of the executive branch, and that is to not move in a case where the government does not feel that the defendant has fully accepted responsibility for his actions, and those actions
3 include the relevant conduct. And that is specifically listed there in the application note.
Sanders’ advisory guideline range was 57-71 months.
The district court imposed a sentence of sixty-three months
imprisonment.
On appeal, Sanders argues that the district court
abused its discretion when it denied his request for a one-level
variance on the ground that the government had discretion to
refuse to move for a one-level adjustment under § 3E1.1(b) for
whatever reasons it deemed appropriate.
We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.
After determining whether the district court properly calculated
the defendant’s advisory guideline range, we next consider
whether the district court considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed the arguments presented by the parties,
and sufficiently explained the selected sentence. Id.; see
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)
(holding that, while the “individualized assessment need not be
elaborate or lengthy, . . . it must provide a rationale tailored
to the particular case . . . and [be] adequate to permit
meaningful appellate review”). Finally, we review the
4 substantive reasonableness of the sentence, “taking into account
the totality of the circumstances, including the extent of any
variance from the Guidelines range.” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007). In this circuit, substantive
reasonableness review presumes that a sentence imposed within
the properly calculated guidelines range is reasonable. United
States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (adopting
presumption of reasonableness); see also Rita v. United States,
551 U.S. 338, 347 (2007) (upholding rebuttable presumption of
reasonableness for within-guidelines sentence).
Other circuits have held that the government may
withhold a motion under § 3E1.1(b) on a variety of grounds
unrelated to the timeliness of the guilty plea if its decision
serves some legitimate government interest, equating the limits
on its discretion under § 3E1.1(b) with the constraints to its
filing a motion for a substantial assistance departure under
USSG § 5K1.1, as set out in Wade v. United States, 504 U.S. 181,
186-87 (1992) (holding that government not obligated to file
motion for substantial assistance departure, but refusal may not
be based on unconstitutional motive and must be rationally
related to legitimate government end). See United States v.
Johnson, 581 F.3d 994, 1003 (9th Cir. 2009) (holding that the
desire to avoid “the expenditure of additional resources in
anticipation of and defending against an appeal is a legitimate
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 08-5233
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL ANTONIO SANDERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00174-FL-2)
Submitted: January 21, 2010 Decided: March 19, 2010
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Daniel Antonio Sanders pled guilty to being an
accessory after the fact in a Hobbs Act robbery, 18 U.S.C. § 3
(2006), without a plea agreement, and was sentenced to a term of
sixty-three months imprisonment. He appeals his sentence,
arguing that the district court abused its discretion in denying
his request for a one-level downward variance to compensate for
the government’s refusal to move for a one-level reduction under
U.S. Sentencing Guidelines Manual § 3E1.1(b) (2008). We affirm.
Sanders’ co-defendant, Kendricus Williams, robbed a
convenience store and escaped in a vehicle driven by Sanders.
They were immediately pursued by police. Sanders crashed the
vehicle after a high-speed chase; both he and Williams were
arrested. In an unprotected statement to the police following
his arrest, Sanders said he drove Williams to the store not
knowing Williams intended to rob it, but that he saw a gun in
Williams’ waistband when Williams returned to the car, saw
Williams counting money, and heard Williams indicate that he had
robbed the store.
At his sentencing hearing, Sanders challenged an
enhancement recommended in the presentence report for possession
or brandishing of a firearm during the offense under USSG
§ 2B3.1(b)(2)(C). Sanders asserted that he was unaware that
Williams intended to rob the store and was not responsible for
2 conduct that occurred before he knowingly became involved in the
offense. The district court overruled his objection,
specifically holding that the objection was not frivolous. The
court further found that Sanders had accepted responsibility and
awarded him a two-level reduction under USSG § 3E1.1(a).
The government nonetheless characterized Sanders’
objection as frivolous and refused to move for the additional
one-level reduction available under § 3E1.1(b) when the
defendant has “timely notif[ied] 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[.]”
Sanders responded that he had given early notice that
he would plead guilty and requested a one-level variance to
offset the government’s action. The district court decided not
to grant a variance, stating that the government was “within its
province to not move for the reasons it deems appropriate for
that third point of acceptance of responsibility.” When defense
counsel asked the government to explain for the record why it
had refused a motion under § 3E1.1(b), the government stated:
[T]he government has, in its view, applied the application note to 3E1.1 in a manner which accords with the prerogatives of the executive branch, and that is to not move in a case where the government does not feel that the defendant has fully accepted responsibility for his actions, and those actions
3 include the relevant conduct. And that is specifically listed there in the application note.
Sanders’ advisory guideline range was 57-71 months.
The district court imposed a sentence of sixty-three months
imprisonment.
On appeal, Sanders argues that the district court
abused its discretion when it denied his request for a one-level
variance on the ground that the government had discretion to
refuse to move for a one-level adjustment under § 3E1.1(b) for
whatever reasons it deemed appropriate.
We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.
After determining whether the district court properly calculated
the defendant’s advisory guideline range, we next consider
whether the district court considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed the arguments presented by the parties,
and sufficiently explained the selected sentence. Id.; see
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)
(holding that, while the “individualized assessment need not be
elaborate or lengthy, . . . it must provide a rationale tailored
to the particular case . . . and [be] adequate to permit
meaningful appellate review”). Finally, we review the
4 substantive reasonableness of the sentence, “taking into account
the totality of the circumstances, including the extent of any
variance from the Guidelines range.” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007). In this circuit, substantive
reasonableness review presumes that a sentence imposed within
the properly calculated guidelines range is reasonable. United
States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (adopting
presumption of reasonableness); see also Rita v. United States,
551 U.S. 338, 347 (2007) (upholding rebuttable presumption of
reasonableness for within-guidelines sentence).
Other circuits have held that the government may
withhold a motion under § 3E1.1(b) on a variety of grounds
unrelated to the timeliness of the guilty plea if its decision
serves some legitimate government interest, equating the limits
on its discretion under § 3E1.1(b) with the constraints to its
filing a motion for a substantial assistance departure under
USSG § 5K1.1, as set out in Wade v. United States, 504 U.S. 181,
186-87 (1992) (holding that government not obligated to file
motion for substantial assistance departure, but refusal may not
be based on unconstitutional motive and must be rationally
related to legitimate government end). See United States v.
Johnson, 581 F.3d 994, 1003 (9th Cir. 2009) (holding that the
desire to avoid “the expenditure of additional resources in
anticipation of and defending against an appeal is a legitimate
5 governmental interest”); United States v. Drennon, 516 F.3d 160,
163 (3d Cir. 2008) (government’s refusal to make motion because
defendant moved to suppress evidence was rationally related to
legitimate government interest of “efficient allocation of the
government’s litigating resources”); United States v. Newson,
515 F.3d 374, 379 (5th Cir. 2008) (holding that defendant’s
refusal to waive his right to appeal is proper basis for
government to refuse motion, “as it is rationally related to the
purpose of the rule and is not based on an unconstitutional
motive”); United States v. Moreno-Trevino, 432 F.3d 1181, 1185-
86 (10th Cir. 2005) (prosecutors should have same discretion
under § 3E1.1(b) as under § 5K1.1, citing Wade).
Thus, the weight of authority currently favors the
application of the limits set forth in Wade to the government’s
discretion under § 3E1.1(b). Moreover, the sentencing court
retains the discretion to grant or deny a requested variance.
The sentencing court’s decision not to vary below the guideline
range is presumptively reasonable, Rita, 551 U.S. at 347, and we
conclude that Sanders has not rebutted the presumption of
reasonableness.
Therefore, we affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
6 materials before the court and argument would not aid the
decisional process.
AFFIRMED