UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 
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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 
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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 
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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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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 
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materials before the court and argument would not aid the 

decisional process.

AFFIRMED