In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3552

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TRISTAN DAVIS,

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.

SUBMITTED MARCH 15, 2013—DECIDED APRIL 9, 2013

Before EASTERBROOK, Chief Judge, and MANION and

ROVNER, Circuit Judges.

PER CURIAM. Tristan Davis repeatedly gave false addresses 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 defendant. In this respect §3E1.1(b) functions like the prosecutor’s entitlement to move for a below-minimum sentence. See U.S.S.G. §5K1.1. The prosecutor may withhold such a motion for any reason that does not violate the Constitution. Wade v. United States, 504 U.S. 181

(1992). Deberry concluded that §3E1.1(b) should be understood the same way, with the same limit.

Two courts of appeals have sided with Davis’s contention that a court may direct the prosecutor to file a

motion under §3E1.1(b) even if the prosecutor’s reason 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).

AFFIRMED

ROVNER, 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 counsel 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 regularity. Sentencing judges must apply a relatively

complex set of guidelines to the unique facts surrounding 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 unreasonable. We routinely vacate sentences and remand for

resentencing to correct these and other kinds of sentencing errors. These errors are rarely, if ever, attributable 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 sentencing. 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 government may not refuse to recommend the reduction for

an invidious reason or for a reason “unrelated to a legitimate governmental objective.” 576 F.3d at 711. Those
6 No. 12-3552

were the sole limitations that the Supreme Court’s decision in Wade v. United States, 504 U.S. 181, 185-86, 112

S. Ct. 1840, 1843-44 (1992), imposed on the government’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 conviction 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 defendant ought to receive the extra reduction for acceptance

of responsibility, see 576 F.3d at 710, the straightforward terms of both the guideline and the accompanying

commentary specify the criteria that control the government’s assessment. Subsection (b) of the guideline describes the motion that must be filed by the government 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 particularly 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 omitted). 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 section 5K1.1, which supplies no meaningful standard by

which the government is to determine whether the defendant has provided substantial assistance in the investigation 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 discrimination 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 government’s authority. The government “retains discretion

to determine whether the defendant’s assistance has relieved it of preparing for trial.” Divens, 650 F.3d at 346

(emphasis in original); see also Alexa Chu Clinton, Comment, Taming the Hydra: Prosecutorial Discretion Under

the Acceptance of Responsibility Provision of the U.S. Sentencing Guidelines, 79 U. Chi. L. Rev. 1467, 1499-1510

(2012) (discussing what interests related to the conservation of trial resources might appropriately be con-
No. 12-3552 9

sidered in exercise of government’s discretion under section 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 willingness 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 mentioned. 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 obvious, the guideline is aimed at the defendant’s acceptance of responsibility for his offense, not the streamlining 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 preparation 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 defendant’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 challenges 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 acceptance of responsibility for his own conduct. A defendant 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 defendant 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 defendant the extra reduction in his offense level notwithstanding the absence of a motion from the government.

See Deberry, 576 F.3d at 711 (where government has withheld 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 additional 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 acceptance 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.

4-9-13