* The Honorable Edward R. Korman, United States District

Judge, Eastern District of New York, sitting by designation.

10-493-cr

United States v. Lee

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2010

(Submitted: June 17, 2011 Decided: July 26, 2011)

Docket No. 10-493-cr

 

UNITED STATES OF AMERICA,

Appellee,

v.

CHRIS LEE,

Defendant-Appellant.

 

Before:

B.D. PARKER and CHIN, Circuit Judges, and 

KORMAN, District Judge.*

Appeal from a February 17, 2010, judgment of the

United States District Court for the Eastern District of New

York (Townes, J.) convicting defendant-appellant Chris Lee,

following his guilty plea, of narcotics violations and

sentencing him principally to 235 months' imprisonment.

VACATED and REMANDED. 

 

BARRY KRINSKY, Law Office of Barry

Krinksy, Brooklyn, New York, for

Defendant-Appellant. 
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SUSAN CORKERY and DANIEL SPECTOR, Assistant United States

Attorneys, for Loretta E. Lynch,

United States Attorney for the

Eastern District of New York,

Brooklyn, New York, for

Appellee.

 

CHIN, Circuit Judge:

In this case, defendant-appellant Chris Lee was

indicted for narcotics violations in connection with a

scheme to import cocaine. He pleaded guilty and was

sentenced principally to a term of 235 months' imprisonment. 

On appeal, he contends that his sentence was procedurally

and substantively unreasonable. See United States v.

Cavera, 550 F.3d 180, 187-89 (2d Cir. 2008) (en banc). We

agree, in part, and therefore vacate the sentence and remand

for resentencing.

BACKGROUND

On September 26, 2007, Lee pleaded guilty, without

a plea agreement, to all four counts of an indictment

charging him with narcotics violations. The Probation

Department prepared a presentence report (the "PSR"). Lee

made certain objections to the PSR's findings, including a

finding that he had threatened to kill certain drug couriers

who he feared might cooperate with law enforcement officers.

A Fatico hearing was scheduled for July 22, 2008. 

The night before, Lee withdrew all but one of his
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objections. He continued to deny that he had threatened to

kill the couriers. The Fatico hearing was rescheduled and

limited to this issue. At the hearing, the district court

found that Lee had made the threats. 

At sentencing, although the government agreed to

recommend a two-level reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1(a), it refused to move

for the third-point reduction available under § 3E1.1(b)

because, as it explained to the district court: 

[T]he defendant required the government

to undergo extensive preparation for a

Fatico hearing on multiple sentencing

issues, and, after the government had

undergone such preparation, the defendant

elected to proceed with a Fatico hearing

on narrower issues. The preparation

involved with respect to the initial,

broader Fatico hearing involved multiple

witnesses and was akin to preparing for

trial . . . .

Lee requested the third-point reduction, but the

district court denied the request, noting that the

government had not moved for the third-point reduction and

that Lee had not argued that the government's decision not

to make the motion was "without good faith." The court

thereafter sentenced Lee to 235 months' imprisonment -- the

bottom of the advisory guidelines range. 
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DISCUSSION

This Court may "review sentences only for

'reasonableness,' a deferential standard limited to

identifying abuse of discretion." United States v. Jones,

531 F.3d 163, 170 (2d Cir. 2008) (citation omitted). 

Reasonableness review consists of two prongs: "first, we

must 'ensure that the district court committed no

significant procedural error,' and second, if we find the

sentence to be 'procedurally sound,' we must 'take into

account the totality of the circumstances' and 'consider the

substantive reasonableness of the sentence.'" Id. (quoting

Gall v. United States, 552 U.S. 38, 51 (2007)).

A. Procedural Reasonableness

Lee argues that the district court committed

procedural error by declining to grant a third-point

reduction for acceptance of responsibility under U.S.S.G. §

3E1.1(b), contending that the government's decision not to

move for the third-point reduction was improper. We agree.

Section 3E1.1 provides that a criminal defendant

may receive up to a three-level reduction in the offense

level calculation. "If the defendant clearly demonstrates

acceptance of responsibility for his offense," the offense

level may be reduced by two points. § 3E1.1(a). An
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additional one-level reduction may be granted where certain

criteria are met:

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 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.

§ 3E1.1(b).

Hence, § 3E1.1(b) gives the court authority to

award a third-point reduction "upon motion of the

government." § 3E1.1(b). As the case law recognizes, a

government motion is "a necessary prerequisite" to the

granting of the third point. United States v. Sloley, 464

F.3d 355, 359 (2d Cir. 2006) (citing United States v.

Moreno-Trevino, 432 F.3d 1181, 1185-86 (10th Cir. 2005);

United States v. Wattree, 431 F.3d 618, 623-24 (8th Cir.

2005); United States v. Smith, 429 F.3d 620, 628 (6th Cir.

2005)); see U.S.S.G. § 3E1.1 cmt. n.6 ("[A]n adjustment

under subsection (b) may only be granted upon a formal

motion by the Government at the time of sentencing."). 
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In two circumstances, however, a sentencing court

is permitted to grant the additional point reduction despite

the absence of a government motion: (1) where the

government's refusal to move is based on an unconstitutional

motive, or (2) where a plea agreement leaves the decision to

move to the government's discretion and the government acts

in bad faith. Sloley, 464 F.3d at 360, 361.

We hold that the government's refusal to move for

a third-point reduction under § 3E1.1(b) in this case was

based on an unlawful reason, as the government could not

refuse to move on the grounds that it had been required to

prepare for a Fatico hearing.

First, the plain language of § 3E1.1(b) refers

only to the prosecution resources saved when the defendant's

timely guilty plea "permit[s] the government to avoid

preparing for trial." U.S.S.G. § 3E1.1(b) (emphasis added). 

Here, although Lee contested certain aspects of the PSR and

requested a Fatico hearing, it is undisputed that his guilty

plea was timely and spared the government from "preparing

for trial." A Fatico hearing is not a trial, and Lee's

post-plea objections to the PSR did not require the

government to prepare "for trial." Under the plain language

of § 3E1.1(b), then, the government's refusal to move for

the third-point reduction was not justified, notwithstanding
1 Other circuits have suggested that "[a]s amended, the

touchstone of § 3E1.1 is no longer trial preparation, but rather

the presence of a government motion for the third-level

reduction." United States v. Beatty, 538 F.3d 8, 16 (1st Cir.

2008); see also United States v. Johnson, 581 F.3d 994, 1002 (9th

Cir. 2009) ("When § 3E1.1(b) speaks of conserving government

resources in the 'prosecution' of the defendant's 'misconduct,'

it means more than simply trial preparation."). While we agree

that the language of § 3E1.1(b) requires a government motion, it

still refers to "permitting the government to avoid preparing for

trial." U.S.S.G. § 3E1.1(b) (emphasis added).

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its preparation for a Fatico hearing that proved to be

narrower than anticipated.1

Second, the Application Notes for § 3E1.1

similarly refer only to the government's ability "to

determine whether the defendant has assisted authorities in

a manner that avoids preparing for trial." § 3E1.1 cmt. n.6

(emphasis added). The Notes do not refer to resources saved

by avoiding preparation for a Fatico hearing or any other

proceeding. Hence, the Notes confirm that the government

could not properly withhold its motion merely because it was

required to prepare for a Fatico hearing. See Stinson v.

United States, 508 U.S. 36, 38 (1993) ("[C]ommentary in the

Guidelines Manual that interprets or explains a guideline is

authoritative unless it violates the Constitution or a

federal statute, or is inconsistent with, or [is] a plainly

erroneous reading of, that guideline."). 

Third, a defendant -- even one who pleads guilty 

-- has a due process right to reasonably contest errors in

the PSR that affect his sentence. United States v. 
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Eschman, 227 F.3d 886, 890 (7th Cir. 2000) (holding that

"criminal defendants . . . have a due process right to be

sentenced on the basis of reliable information"). A

defendant should not be punished for doing so. If there is

a good faith dispute as to the accuracy of factual

assertions in the PSR, the defendant's request that the

dispute be resolved is not a permissible reason for the

government to refuse to make the § 3E1.1(b) motion, even if

resolution of the dispute requires a Fatico hearing. The

government's refusal to make the motion under these

circumstances is "unlawful and grounds for reproach" because

it ignores the language of the guideline, its purpose, and

the intent of Congress. Sloley, 464 F.3d at 360. 

The court, not the government, imposes sentence,

and the court is entitled to a full and accurate record –-

as are the parties -- before sentence is imposed. As long

as the defendant disputes the accuracy of a factual

assertion in the PSR in good faith, the government abuses

its authority by refusing to move for a third-point

reduction because the defendant has invoked his right to a

Fatico hearing.

A recent decision of the Fourth Circuit is

instructive. In United States v. Divens, No. 09-4967, 2011

WL 2624434 (4th Cir. July 5, 2011), the defendant refused to
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sign a plea agreement waiving his right to appeal. The

government declined to move for the third-point reduction

under § 3E1.1(b) on the grounds that the defendant's refusal

to sign an appeal waiver would mean that the government

would have to expend resources to defend an appeal. Id. at

**1, 4. 

Relying on the plain language of § 3E1.1(b) and

its commentary, the Fourth Circuit held that the government

could not refuse to make the motion on this basis. Id. at

*5. The court held that § 3E1.1(b) "instructs the

Government to determine simply whether the defendant has

'timely' entered a 'plea of guilty' and thus furthered the

guideline's purpose in that manner. It does not permit the

Government to withhold a motion for a one-level reduction

because the defendant has declined to perform some other act

to assist the Government." Id. These observations apply

with equal force here.

B. Substantive Reasonableness

In light of our ruling above, we do not reach the

issue of substantive reasonableness, but we do reject Lee's

arguments regarding: (1) the disparity between his sentence

and those imposed on his co-defendants, (2) his lack of a

prior criminal record, and (3) his medical condition.
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Regarding the alleged sentencing disparity, we

note that the district court addressed Lee's argument,

identifying several key respects in which he and his codefendants were not similarly situated. Notably, Lee (1)

was the leader of the organization, (2) paid a co-defendant

not to cooperate with law enforcement authorities, and (3)

threatened to kill the couriers. See United States v.

Fernandez, 443 F.3d 19, 28 (2d Cir. 2006) (holding that

"disparity between non-similarly situated co-defendants is

not a valid basis for a claim of error under 18 U.S.C. §

3553(a)(6)").

As for Lee's criminal history, the district court

carefully considered his personal circumstances and weighed

his law-abiding past against the fact that his present

crimes "were ongoing, . . . not just [a] one time thing." 

Finally, with respect to Lee's medical condition,

the parties discussed whether the Bureau of Prisons was

capable of addressing his health needs, and the district

court explicitly stated that it had considered the statutory

factors. See Fernandez, 443 F.3d at 30.

CONCLUSION

For the foregoing reasons, the sentence is VACATED

and the case is REMANDED for resentencing.