USSG 3E1.1: One Point for Timely Acceptance MUST Be Granted By Court If Government Asks

UNITED STATES OF AMERICA v. JAYMIE T. MOUNT, No. 11-2616.

Jaymie Mount disappeared while on release awaiting trial on a charge of possession of a gun by a felon, in violation of 18 U.S.C. § 922(g)(1). He was captured nearly three months later and pleaded guilty two weeks before his trial was set to begin.

At sentencing, the district court granted him a two-level reduction in his offense level under the U.S. Sentencing Guidelines for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). In keeping with the plea agreement, the government moved for Mount to receive an additional one-level reduction, because it was satisfied that he had given prosecutors timely notice of his intention to plead guilty. See id. § 3E1.1(b).

The district court denied that motion, however, citing Mount’s flight as its reason. Mount appeals, arguing that the additional one-level reduction is mandatory once the government determines that the criteria spelled out in § 3E1.1(b) are satisfied and it makes the necessary motion.

We conclude that Mount is correct, and we thus remand for resentencing.

We have not had occasion squarely to address this question in the past.
Returning to the language of the guideline, we come back to the point we noted earlier: since 2003 there have been essentially three requirements under the current text of § 3E1.1(b): (1) a decision that the defendant qualifies for the first two levels under subpart (a); (2) an offense level of 16 or greater before subpart (a) is applied; and (3) a government motion certifying assistance through a timely plea.

The language just quoted, we have held, is mandatory: subsection (b) “directs rather than allows the sentencing court to reduce the defendant’s offense level if the qualifying conditions are met.” United States v. Townsend, 73 F.3d 747, 755 (7th Cir. 1996). And we are not alone. Every circuit to consider the matter has also adopted this reading of the pre-amendment version of subsection (b). See, e.g., United States v. Rood, 281 F.3d 353, 357 (2d Cir. 2002); United States v. Rice, 184 F.3d 740, 742 (8th Cir. 1999); United States v. Tello, 9 F.3d 1119, 1124 (5th Cir. 1993).

We conclude that the district court erred here by failing to grant Mount the one-level reduction under § 3E1.1(b) that was triggered by the government’s motion. His advisory guideline range was affected by that error, and we cannot say on this record that the error was harmless.

The judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this opinion.