United States District Court

For the Northern District of California

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 Rule 35(a) states: “Within 14 days after sentencing, the court may correct a sentence

that resulted from arithmetical, technical, or other clear error.” Fed. R. Crim. P. 35(a).

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

 v.

RAFAEL FRANCO-PEREZ,

Defendant. /

No. CR 09-0103-1 CRB

ORDER DENYING DEFENDANT’S

MOTION TO AMEND/CORRECT

SENTENCE

On March 31, 2010, the Court sentenced Defendant Rafael Franco-Perez to 300

months custody. The Court arrived at this sentence by reducing the sentence sought by the

government – 360 months – by 16.67%, to account for defendant’s acceptance of

responsibility for his offense. On April 2, 2010, Defendant filed a motion to correct his

sentence pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure.1

 According to 

Franco-Perez, the “average sentencing reduction that a defendant receives under the

guidelines for acceptance of responsibility is 28.5%.” Franco-Perez therefore maintains that

the Court committed an “arithmetical” error when it reduced his sentence by 16.67%, rather

than the “average” guideline reduction for acceptance of responsibility of 28.5%.

For the reasons discussed below, the Court DENIES Defendant’s motion. The Court

finds that reducing the government’s proposed sentence to reflect Franco-Perez’s acceptance

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of responsibility was necessary and appropriate. The Court also finds, however, that a

16.67% reduction adequately accounts for Franco-Perez’s acceptance of responsibility and

did not “result[] from an arithmetical, technical, or other clear error.” See Fed. R. Crim. P.

35(a).

DISCUSSION

A. The Plea Agreement

On September 17, 2009, Franco-Perez entered into a plea agreement with the

government in which he agreed to plead guilty to one count of conspiracy to possess with

intent to distribute various controlled substances. For sentencing purposes, Franco-Perez

agreed that his criminal history category was VI, that his base offense level was 38, that he

was subject to a 3-level increase in his offense level due to his role in the offense, and that he

qualified for a 3-level reduction for his acceptance of responsibility. Before adjusting for

acceptance of responsibility, then, Franco-Perez’s offense level was 41. His post-acceptance

of responsibility offense level was, like his base offense level, 38. 

B. The Sentencing Guidelines

For defendants with a criminal history category of VI, the Sentencing Guidelines

provide the following recommended sentences:

Offense

Level

Recommended

Sentence

32 210-262

33 235-293

34 262-327

35 292-365

36 324-405

37 360-life

38 360-life

39 360-life

40 360-life

41 360-life

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42 360-life

43 life

 

In this case, Franco-Perez’s adjusted offense level was 38. The Sentencing Guidelines

therefore provided a recommended sentencing range of 360 months to life imprisonment. 

Pursuant to the parties’ plea agreement, the government sought a sentence of 360 months, the

low end of the range. Franco-Perez argued for a sentence of 210 months imprisonment.

C. The Appropriate Sentence

On March 31, 2010, the Court sentenced Franco-Perez to 300 months custody. As the

Court stated at the sentencing hearing, a downward departure from the low end of the

recommended guideline range was necessary to properly account for Franco-Perez’s

acceptance of responsibility for his offense. 

The need for this departure stems from the Guideline’s idiosyncratic treatment of

criminal defendants with a criminal history category of VI and a pre-acceptance of

responsibility offense level between 40 and 42. For such defendants, the recommended

guideline sentencing range is identical – 360 months to life – both before and after the 3-level

downward adjustment for acceptance of responsibility provided for in U.S.S.G. § 3E1.1. In

other words, a category VI defendant who, like Franco-Perez, has a pre-acceptance of

responsibility offense level between 40 and 42 receives no benefit for accepting

responsibility for the offense and therefore has no incentive to accept responsibility.

The Court finds this anomaly in the Guidelines particularly troubling given that the

defendants who meet the relevant criteria have, by definition, committed the most serious

offenses. As a result, their cases, should they go to trial, would likely consume substantially

more government and court resources than those of less serious offenders. Thus, by

admitting guilt and accepting responsibility, these defendants provide an especially

significant benefit to the government and to the court. See U.S.S.G. § 3E1.1(b) (stating that a

downward adjustment for timely acceptance of responsibility is appropriate because, among

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other things, timely acceptance “permit[s] the government to avoid preparing for trial and

permit[s] the government and the court to allocate their resources efficiently”). 

This matter provides a case-in-point. According to the plea agreement, Franco-Perez

was a central figure in a large conspiracy to ship and distribute various controlled substances

from Mexico to the United States. The investigation that culminated in Franco-Perez’s arrest

lasted a year and a half and involved multiple law enforcement agencies. In addition, the

amount of drugs and money seized by the government was substantial. These facts

demonstrate that, had Franco-Perez’s case gone to trial, the time required to prepare and try

his case would have been significant. Franco-Perez’s decision to plead guilty was therefore

particularly beneficial to the government and the court. The Guidelines’s failure to provide

Franco-Perez with an incentive to enter a timely guilty plea is therefore unreasonable.

Given that some reduction in Franco-Perez’s sentence was necessary to account for

his acceptance of responsibility, the next issue is what the appropriate reduction should be. 

At the sentencing hearing, the Court provided a 16.67% reduction, resulting in a sentence of

300, rather than 360, months.

Franco-Perez maintains that the Court committed an “arithmetical” error in arriving at

its chosen reduction. Citing a statement by the Court that it wished to provide Franco-Perez

with a reduction commensurate with that received by other defendants, Franco-Perez argues

that the “average” benefit a defendant receives under the Guidelines for accepting

responsibility is approximately 28.5%, not 16.67%. Franco-Perez notes, for example, that a

criminal history category VI defendant with an unadjusted offense level of 35 would receive

a 28.1% reduction in the low-end of his sentence (from 292 months to 210 months) for a 3-

level acceptance of responsibility adjustment. Given that the Court intended to provide

Franco-Perez with a typical reduction in his sentence and that the “average” reduction is

around 28%, Franco-Perez contends, the Court committed an “arithmetical” error in

calculating his sentence.

The Court disagrees, for several reasons. First, as the government points out, the

percentage reduction in sentence that a category VI defendant receives from a 3-level

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acceptance of responsibility adjustment varies. For example, although a defendant with an

unadjusted offense level of 37 receives a 27.2% reduction in the low end of his sentencing

range by accepting responsibility (from 360 months at level 37 to 262 months at level 34), a

defendant with an unadjusted offense level of 38 receives only an 18.9% reduction (from 360

months at level 38 to 292 months at level 35), and a defendant with an unadjusted offense

level of 39 receives only a 10% benefit (from 360 months at level 39 to 324 months at level

36). As a result, the Court does not agree with the Defendant that the typical or average

reduction for a category VI defendant with an offense level above 37 is 28.5%. 

Second, applying a 28.5% reduction in a case like this one would lead to anomalous

results. Reducing the government’s proposed sentence of 360 months by 28.5% would result

in a sentence of 257 months. A 257-month sentence is, however, below the low end of the

range for defendants whose offense levels are 34 (262 – 327 months), 35 (292 – 365 months),

and 36 (324 – 405 months). This means that a defendant with an unadjusted offense level of

37 (360 months – life), 38 (360 months – life), and 39 (360 months – life) would receive less

benefit from a 3-level downward adjustment for accepting responsibility than Franco-Perez,

whose unadjusted offense level is 41.

Third, criminal history category VI defendants at the upper offense levels already

receive an implicit reduction in their sentences. As the chart below demonstrates, the

recommended number of months at the low end of the guidelines range increases

exponentially with offense level until offense level 37. At that point, the low end of the

range flattens out at 360 months, where it remains for the next five offense levels. If, instead

of flattening out, the recommended low end of the sentencing range continued to increase

exponentially, defendants with an offense level between 38 and 42 would be subject to

considerably higher sentences. If that were the case, then a reduction for acceptance of

responsibility that was closer to what a defendant at a lower offense level – i.e., a defendant

who is subject to the exponential increase – would receive might be appropriate. But because

defendants at high offense levels already receive an implicit reduction in their recommended

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sentences, the Court finds that a reduction that is nearly identical to what defendants at lower

offense levels receives is not justifiable.

In sum, the Court finds that its sentence of 300 months did not result from

“arithmetical, technical, or other clear error.” Fed. R. Crim. P. 35(a). The typical reduction

for acceptance of responsibility for a defendant with Franco-Perez’s offense level and

criminal history characteristics cannot be precisely calculated. Moreover, the 28.5%

reduction Defendant argues in favor of would overcompensate defendants in Franco-Perez’s

position for accepting responsibility. The Court finds that a 16.67% reduction, on the other

hand, provides an appropriate incentive to defendants like Franco-Perez to plead guilty,

without supplying an undue benefit to such defendants. The Court’s decision therefore did

not result from an “arithmetical” error or any other error that would permit the Court to

correct its sentence under Rule 35(a). See, e.g., United States v. Stevens, 548 F.2d 1360,

1362 (9th Cir. 1977) (affirming correction of sentence under Rule 35 where “the judge said

‘two’ [years], when he meant to say ‘ten.’”). 

Accordingly, the Franco-Perez’s Rule 35(a) Motion to Correct Sentence is DENIED.

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G:\CRBALL\2009\0103\Order re Rule 35(a) motion.wpd 7

IT IS SO ORDERED.

Dated: April 7, 2010 

CHARLES R. BREYER

UNITED STATES DISTRICT JUDGE

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