Amicus Brief.final

7/28/2019 Amicus Brief.final

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No. 12-10135(Panel: Circuit Judges Reinhardt, Wardlaw, and Bea)

Memorandum disposition filed September 7, 2012

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HERBERT FRANKLIN VANEGAS-

ORTIZ,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Arizona

BRIEF OF AMICI CURIAE NINTH CIRCUIT FEDERAL PUBLIC AND

COMMUNITY DEFENDERS AND THE NATIONAL ASSOCIATION OFCRIMINAL DEFENSE LAWYERS IN SUPPORT OF DEFENDANT-

APPELLANTS PETITION FOR REHEARING EN BANC

David M. Porter

Vice-Chair, NACDL

Ninth Circuit Amicus Committee

801 I Street, 3rd Floor

Sacramento, California 95814

(916) 498-5700

Lisa Hay

Assistant Federal Public Defender

Stephen Sady

Chief Deputy Federal Public Defender

101 SW Main Street, Suite 1700

Portland, Oregon 97204

(503) 326-2123

Counsel For Amici Curiae


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TABLE OF CONTENTS

Page

I. REASONS FOR GRANTING REHEARING EN BANC. . . . . . . . . . . . . . . 1

II. SUMMARY OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. REHEARING EN BANC SHOULD BE GRANTED TO CORRECT

THE ERRONEOUS RULINGS IN JOHNSON AND MEDINA-

BELTRAN, CASES THAT MISCONSTRUED THE SENTENCING

GUIDELINE REDUCTION FOR ACCEPTANCE OF

RESPONSIBILITY, RESULTING IN AN UNWARRANTED

EXPANSION OF GOVERNMENT DISCRETION OVER

SENTENCES AND AN INTOLERABLE RISK OF PUNISHMENT

FOR THE EXERCISE OF CONSTITUTIONAL AND APPELLATERIGHTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Under The Plain Language Of Section 3E1.1, The Only Act

Required Of A Defendant To Be Eligible For The Reduction Is A

Timely Notice Of Intent To Plead Guilty. . . . . . . . . . . . . . . . . . . . . . . 5

B. The Text Of Section 3E1.1, Its Commentary, And This Courts

Precedents All Make Clear That Conservation Of Trial

Resources, Not Other Resources, Is The Outcome To Be AssessedFrom A Defendants Timely Plea. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. The Johnson Courts Error Stems In Part From Erroneous

Reasoning inEspinoza-Cano, Which Was Adopted InMedina-

Beltran.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

D. An Interpretation Of Section 3E1.1 That Allows The Government

To Penalize Defendants Assertion Of Constitutional Protections

Would Imperil Constitutional Rights And Must Be Avoided. . . . . . 16

1. By Conditioning The One-Level Adjustment On

Relinquishment Of Non-Trial Rights And Appeals,

Johnson Jeopardized The Exercise Of Rights Under The

Fourth, Fifth, And Sixth Amendments. . . . . . . . . . . . . . . . . . . 18

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2. Well-Established Constitutional Law Prohibits Legislation

That Conditions The Lower Level On The Relinquishment

Of Statutory And Constitutional Rights. . . . . . . . . . . . . . . . . 20

IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

BRIEF FORMAT CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

APPENDIX

Clerks Docket.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App-1

Government Notice of Intent Not to File 3E1.1 Motion. . . . . . . . . . . App-7

List of Related Ninth Circuit Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . App-9

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TABLE OF AUTHORITIES

Page

FEDERAL CASES

Alabama v. Smith,490 U.S. 794 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Clark v. Martinez,

543 U.S. 371 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Dunnigan v. United States,

507 U.S. 87 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Edelman v. Jordan,415 U.S. 651 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Leocal v. Ashcroft,

543 U.S. 1 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

North Carolina v. Pearce,

395 U.S. 711 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Rivers v. Roadway Express, Inc.,511 U.S. 298 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Shapiro v. Thompson,

394 U.S. 618 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Sherbert v. Verner,

374 U.S. 398 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Simmons v. United States,

390 U.S. 377, 389 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Smith v. Wainwright,

664 F.2d 1194 (5th Cir. 1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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Stinson v. United States,

508 U.S. 36 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 17

United States v. Aichele,

941 F.2d 761 (9th Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Capriola,

537 F.2d 319 (9th Cir. 1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Divens,

650 F.3d 343 (5th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 9, 12, 15

United States v. Espinoza-Cano,

456 F.3d 1126 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . 4, 11, 13, 14, 16, 23

United States v. Jackson,

390 U.S. 570 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Jimenez,

470 Fed. Appx. 680 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Johnson,

581 F.3d 994 (9th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. Kimple,

27 F.3d 1409 (9th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17

United States v. LaPierre,

998 F.2d 1460 (9th Cir. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Lee,

653 F.3d 170 (2d Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 15, 20

United States v. McGowan,

668 F.3d 601 (9th Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Medina-Beltran,

542 F.3d 729 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 14, 16, 23

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United States v. Munoz,

701 F.2d 1293 (9th Cir. 1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Rabinowitz,

339 U.S. 56 (1950). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Sarbia,

367 F.3d 1079 (9th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Stockwell,

472 F.2d 1187 (9th Cir. 1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Vance,

62 F.3d 1152 (9th Cir. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10, 17

United States v. Watt,

910 F.2d 587 (9th Cir. 1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18

Wade v. United States,

504 U.S. 181 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13, 14, 15

FEDERAL STATUTES

18 U.S.C. 3553(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

UNITED STATES SENTENCING GUIDELINES

Section 3E1.1 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Section 5K1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 13, 14, 15

U.S.S.G. Appendix C, amendment 649.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

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IN THE UNITED STATES COURT OF APPEALS


UNITED STATES OF AMERICA, ))

Plaintiff-Appellee, ) CA No.12-10135

)

v. )

)

HERBERT FRANKLIN VANEGAS- )

ORTIZ, )

)

Defendant-Appellant.)

BRIEF OF AMICI CURIAE NINTH CIRCUIT FEDERAL PUBLIC AND

COMMUNITY DEFENDERS AND THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS IN SUPPORT OF

DEFENDANT-APPELLANT'S PETITION FOR REHEARING EN BANC

I. REASONS FOR GRANTING REHEARING EN BANC

Two Circuits have explicitly rejected the case relied upon by this Panel,

United States v. Johnson, 581 F.3d 994 (9th Cir. 2009), that addresses the

acceptance of responsibility guideline adjustment under 3E1.1(b). See United

States v. Divens, 650 F.3d 343, 347 (4th Cir. 2011) (rejecting Johnson); United

States v. Lee, 653 F.3d 170, 174 n.1 (2d Cir. 2011) (rejectingJohnson). The Panel

applied Johnson and related circuit precedents that miscontrue the plain text of

3E1.1, unduly expand government discretion to withhold a motion for sentence

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reduction, and create substantial danger that exercise of constitutional and

appellate rights will be chilled or punished. Section 3E1.1 applied to 94.2.% of all

federal sentences in 2010, and the specific language at issue in this case applied in

at least 60% of those cases. See REFUSING TO COMPARE APPLES AND ORANGES:

WHY THE FOURTH CIRCUIT GOT IT RIGHT IN UNITED STATES V. DIVENS, 90

N.C.L.Rev 1267, 1287 (2012) (noting circuit split on interpretation of 3E1.1(b)

and citing statistics from U.S. Sentencing Commission). Rehearing en banc should

be granted to consider the authoritative decisions of the Fourth and Second

Circuits and to correct the error in this Courts precedents.

II. SUMMARY OF THE CASE

The defendant pled guilty less than two months after arraignment and within

the time set by the Court as the first plea deadline (CD 6, 12, 13; App. at 1).1

Because the defendant chose to plead guilty without accepting the governments

plea agreement, which required waiver of sentencing, appellate, and post-

conviction rights, the government filed notice that it would decline to move for the

one-level reduction in offense level for acceptance of responsibility under

3E1.1(b) (App. at 7).

1 CD refers to the Clerks Docket from the district court case, included in the

Appendix.

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The governments authority to move for a one-level reduction was added to

3E1.1 by amendment in 2003. U.S.S.G. app. C, amendment 649 (April 30,

2003). Under the earlier guideline, no motion by the government was required

before the court awarded the one-level reduction. Under the new 3E1.1(b), the

sentencing court is directed to reduce the offense by an additional one level if

certain conditions (not relevant here) are met, and the government files a motion

stating:

that the defendant has assisted authorities in the investigation orprosecution 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.

U.S.S.G. 3E1.1(b) (2003).

Having entered a timely guilty plea that allowed the government to avoid

expending trial resources, the defendant objected to the governments refusal to

file the 3E1.1(b) motion. The district court overruled the objection based on the

governments citation to United States v. Johnson, 581 F.3d 994 (9th Cir. 2009),

and United States v. MedinaBeltran, 542 F.3d 729 (9th Cir. 2008). In affirming,

the Panel found the issue foreclosed by precedent, while also acknowledging the

disagreement of other circuits. Defendant timely filed a petition for rehearing en

banc. This brief is filed in support.

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III. REHEARING EN BANC SHOULD BE GRANTED TO CORRECT

THE ERRONEOUS RULINGS IN JOHNSON AND MEDINA-

BELTRAN, CASES THAT MISCONSTRUED THE SENTENCING

G UIDELINE REDUCTIO N FO R ACCEPTANCE O F

RESPONSIBILITY, RESULTING IN AN UNWARRANTED

EXPANSION OF GOVERNMENT DISCRETION OVERSENTENCES AND AN INTOLERABLE RISK OF PUNISHMENT

FOR THE EXERCISE OF CONSTITUTIONAL AND APPELLATE

RIGHTS.

Johnson misconstrued the plain language of the guideline, treating the 2003

amendments to 3E1.1 as if they had radically altered the guideline and made

previous case law interpreting this section irrelevant. Textual analysis of the

amended guideline, however, and a review of the commentary, demonstrate the

error inJohnsons analysis. By rejecting this Courts precedent in United States v.

Vance, 62 F.3d 1152, 1157 (9th Cir. 1995), and relying on erroneous reasoning in

United States v. Espinoza-Cano, 456 F.3d 1126 (9th Cir. 2006) later adopted in

Medina-Beltran the Johnson decision dramatically increased the discretion

available to prosecutors under 3E1.1. As Judge Smith predicted in his partial

dissent,

[T]he majority risks giving federal prosecutors undue license to

penalize defendants for forcing the government to expend resources,

even if the governments justification for doing so is entirely

unrelated to the stated objectives of the Sentencing Guidelines.

Johnson, 581 F.3d at 1007 (M. Smith, J., dissenting in part and concurring in the

judgment).

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TheJohnson majority dismissed the parade of horribles predicted to result

from its decision, id. at 1004, but now that parade is on the march. As

demonstrated in this case and the attached appendix of cases, prosecutors now

withhold the one-level reduction under 3E1.1 if defendants refuse to sign

government-drafted plea agreements agreements that may eliminate the right to

appeal, or to object to unconstitutional evidence, or to exercise due process rights

to present evidence and argument at sentencing. Nothing in 3E1.1 authorizes

this expansion of government power, and such an expansive interpretation of

3E1.1 imperils constitutional rights and should be avoided.

A. Under The Plain Language Of Section 3E1.1, The Only Act

Required Of A Defendant To Be Eligible For The

Reduction Is A Timely Notice Of Intent To Plead Guilty.

Section 3E1.1(b) instructs the court to decrease a defendants offense one

level when the defendant meets qualifying conditions (not relevant here) and the

government files a motion asserting that the defendant

assisted authorities in the investigation or prosecution of his own

misconduct by timely notifyingauthorities of his intention to enter a

plea of guilty, therebypermitting the government to avoid preparing

for trial and permitting the government and the court to allocate their

resources efficiently.

U.S.S.G. 3E1.1(b) (emphasis added). As the syntax makes clear, only one act is

required of a defendant: timely notification of the intent to plead guilty. This act of

the defendant must have certain consequences as a result of the timely plea, the

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government must thereby be able to conserve resources by avoiding preparation

for trial but no act other than a timely guilty plea is required from the defendant.

InJohnson, the Court ignored the syntax of the guideline and construed the

terms as if a defendant were ineligible for the reduction if he eitherfailed to enter

a timely plea orcaused the government to expend resources. Thus, the Court held

that expected allocation and expenditure of prosecutorial resources for the

purposes of defending an appeal justified declining to move for the reduction,

even if a defendant entered a timely guilty plea. 581 F.3d at 1002. The Court read

3E1.1 to create a broad interest in conserving government resources in the

prosecution of the defendants misconduct. Id.

Other courts have rejected this broad reading of 3E1.1. In Divens, for

example, the Court analyzed the placement of the phrases by [timely notifying]

and thereby [permitting avoidance of trial preparation] in 3E1.1 to conclude

that nothing more than a timely guilty plea can be required of the defendant:

Section 3E1.1(b) thus instructs the Government to determine simply

whether the defendant has timely entered a plea of guilty and thus

furthered the guidelines purposes 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. Certainly, timely entry of a plea of guilty doesnot require the execution of an appellate waiver.

Divens, 650 F.3d at 348 (citation omitted); see alsoLee, 653 F.3d at 174 (deeming

governments refusal to file a 3E1.1 motion unlawful because it contravened

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the language of the guideline, its purpose, and the intent of Congress); Johnson,

581 F.3d at 1009 (Smith, J., dissenting in part); United States v. Jimenez, 470 Fed.

Appx. 680 (9th Cir. 2012) (unpublished) (Pratt, D.J., concurring) (While there are

numerous ways in which a defendant might aid in the investigation and

prosecution of his own misconduct, pleading guilty in a timely manner is the only

action contemplated by the guideline.).

Adopting the resource-preservation focus ofJohnson, the prosecutor in this

case declined to move for the one-level reduction despite the defendants timely

guilty plea. The government justified its action by noting that the defendant

declined to sign the governments plea offer, thereby leaving open the potential

need to expend resources on sentencing or on appeal. Nothing in the guideline

justifies the imposition of additional eligibility requirements on defendants, such

as signing plea offers, abandoning sentencing arguments, or waiving appeal. This

erroneous outcome fromJohnson requires correction.

B. The Text Of Section 3E1.1, Its Commentary, And This

Courts Precedents, All Make Clear That Conservation Of

TrialResources, Not Other Resources, Is The Outcome To

Be Assessed From A Defendants Timely Plea.

Failing to adhere to the plain language of 3E1.1, and without addressing

the guidelines commentary,Johnson concluded that [w]hen 3E1.1(b) speaks of

conserving government resources in the prosecution of the defendants

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misconduct, it means more than simply trial preparation. 581 F.3d at 1002.

Based on this construction of the text, Johnson ruled that the government can

consider its need to expend resources on an appeal, not just for trial preparation,

when deciding whether to move for the one-level reduction.Id.

Contrary to Johnsons assertion, the plain language of 3E1.1 does not

speak[] of conserving government resources in the prosecution of a defendants

misconduct. That construction merges two phrases of 3E1.1 that are

separated by significant text. Consideration of resources comes in the last

clause of 3E1.1, directly after the reference to avoiding trial preparation and the

requirement of a timely guilty plea. The plain language of 3E1.1 links

preservation of resources to the guilty plea (by a guilty plea thereby permitting

efficient allocation of resources). Johnson elides the crucial text to reach its

holding.

Moreover, had Congress been concerned with preservation of appellate

resources in addition to trial resources, it would have referred to courts, not to a

single court, in the last clause. Congresss choice to refer to the ability of the

government and the court to allocate resources efficiently precludes an

interpretation that this clause includes consideration of appellate costs. U.S.S.G.

3E1.1(b) (emphasis added). Accord Divens, 650 F.3d at 348 (Had Congress

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intended to conserve appellate court resources, it would have referred to courts

not the court.).

The application notes further indicate that 3E1.1 addresses the allocation

and preservation only of trial resources. Application notes are binding on the

courts in their construction of the guidelines. Stinson v. United States, 508 U.S.

36, 38 (1993); United States v. Sarbia, 367 F.3d 1079, 1084 (9th Cir. 2004).2 As

the notes explain, a defendant qualifies for the reduction if he has 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 preparation for trialand the court

may schedule its calendar efficiently. U.S.S.G. 3E.1.(b) cmt. (n.6) (emphasis

added). That the government should exercise its discretion to assess whether the

defendants actions have conserved trial resources is made explicit: the

Government is in the best position to determine whether the defendant has assisted

authorities in a manner that avoids preparing for trial. Id. Johnson failed to

consider these application notes when reaching its erroneous construction of

3E1.1.

2 That part of these application notes predate the 2003 amendment to 3E1.1

does not diminish their relevance. Congress amended the application notes for

3E1.1 when it amended the guidelines and could have deleted unwanted

commentary. U.S.S.G. Appendix C, amendment 649. Congress having left this text

unchanged indicates its continued adherence to the explanation in the commentary.

See Divens, 650 F.3d at 346 n. 1.

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Finally, this Courts pre-Johnson precedents had already construed the

former 3E1.1 to preclude consideration of any resources other than trial

resources when assessing whether a defendant was eligible for the sentence

reduction. As analyzed in detail by Judge Smith in his partial dissent inJohnson,

this Court in Vance established that the reduction for acceptance of responsibility

could not be withheld solely because a defendant filed a motion to suppress.

Johnson, 581 F.3d at 1009-11 (citing Vance, 62 F.3d at 1157). Vance rejected an

argument that the governments expenditure of resources for the motion hearing,

like trial preparation, could be weighed against the defendant under 3E1.1: The

guidelines do not mean motions where they say trial. Id. at 1157 (citing

United States v. Kimple, 27 F.3d 1409, 1414-15 (9th Cir. 1994)). Because Vance

and Kimple had already interpreted the relevant text of 3E1.1, which was

substantially identical to the amended text, theJohnson Court erred in declining to

follow them. SeeLeocal v. Ashcroft, 543 U.S. 1, 12 n.8 (2004) (same statutory

language has same meaning regardless of context); Rivers v. Roadway Express,

Inc., 511 U.S. 298, 312-13 (1994) (judicial construction of statute is authoritative

statement of what statute means).

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C. TheJohnson Courts Error Stems In Part From Erroneous

Reasoning in Espinoza-Cano, Which Was Adopted In

Medina-Beltran.

In reaching its erroneous construction of the Guideline, Johnson relied

heavily on Espinoza-Cano, this Circuits seminal decision interpreting 3E1.1

after the 2003 amendment. Johnson, 581 F.3d at 1003. That case contains a

crucial error of reasoning, which resulted in a broad and unwarranted standard for

3E1.1 motions.

In Espinoza-Cano, the Court for the first time addressed the standard of

review applicable to the governments refusal to exercise its then-new authority

under 3E1.1 to move for the third level of reduction. 456 F.3d at 1136. The

panel chose to use the standard for review of the governments refusal to file a

motion under U.S.S.G. 5K1.1 to reward a defendants substantial assistance to

the government.Id. (citing Wade v. United States, 504 U.S. 181, 185-86 (1992)).

Although both 5K1.1 and 3E1.1 allow a decrease in sentence upon motion of

the government, theEspinoza-Cano panels resort to the Wade standard of review

failed to recognize significant textual and functional differences between 5K1.1

and 3E1.1 that rendered parts of the Wade reasoning inapposite in the context of

3E1.1 motions.

Most importantly, the commentary to 3E1.1 clarifies that the

governments decision to file a motion under 3E1.1 involves far less discretion

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than the comparable decision to file a motion under 5K1.1. The application

commentary for 3E1.1 (but not for 5K1.1) uses mandatory terms to explain the

functioning of the guideline: the guideline provides an additional 1-level

decrease in offense level for a defendant U.S.S.G. 3E1.1, cmt. 6 (emphasis

added). Similarly, the background commentary adds that [s]uch a defendant has

accepted responsibility in a way that ensures the certainty of his just punishment,

thereby appropriately meriting an additional reduction. U.S.S.G. 3E1.1, cmt.

background (emphasis added). The commentary to 5K1.1 includes no

comparable reference to the defendant meriting the reduction based on specific

acts. These comments differentiate the wide discretion afforded to the

Government under 5K1.1 from the more limited decision the government must

make when deciding to move for an additional one-level reduction under 3E1.1.

Accord Divens, 650 F.3d at 345-48.

In addition, sentence reductions for substantial assistance to the government

do not involve constitutional tensions surrounding the relinquishment of

constitutional rights, as do reductions for acceptance for responsibility. The

statutory standards for substantial assistance focus solely on rewarding activity

that could be compelled by subpoena and immunity. 18 U.S.C. 3553(e). In

contrast, the tensions between rewarding acceptance of responsibility and

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punishing assertions of constitutional rights has resulted in a generation of well-

established case law, as discussed below.

Finally, Espinoza-Cano failed to acknowledge the difference in the

triggering events established by Congress to justify a government motion for

reduction of sentence under 5K1.1 and 3E1.1. The governments motion for

sentence reduction under 5K1.1 is left to the governments subjective assessment

of whether a defendant has substantially assisted in the prosecution of another.

In contrast, the governments motion under 3E1.1 has three objective

components, all linked to the defendants plea: the motion must state that the

defendant (1) has assisted the authorities, (2) by a timely guilty plea (3) that avoids

trial preparation and the inefficient allocation of resources.

Not recognizing these significant differences between government motions

under 5K1.1 and 3E1.1, Espinoza-Cano adopted the full Wade standard,

without stating how the standard should be tailored to fit the specific guideline

limits of 3E1.1. Specifically, the Court provided that, under the Wade standard,

a defendant must show either that the government acted on the basis of an

unconstitutional motive (e.g., racial discrimination), or arbitrarily (i.e., for reasons

not rationally related to any legitimate governmental interest). Espinoza-Cano,

456 F.3d at 1136. TheEspinoza-Cano court failed, however, to take the next step

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of linking the definition of legitimate governmental interest to the specific

guideline-defined interests in 3E1.1, as described above.

Instead, in broad terms, Espinoza-Cano suggested the government could

employ the cost and benefit analysis ofWade to define the government interest:

As noted in Wade, [t]he Governments decision not to move may

[be] based . . . simply on its rational assessment of the cost and

benefit that would flow from moving.

Espinoza-Cano, 456 F.3d at 1138. Because of the different requirements for a

motion under 5K1.1 and 3E1.1, the Espinoza-Cano Panel erred in suggesting

that Wades subjective cost and benefit language should apply to assessment of

3E1.1 motions.

A government motion under 3E1.1 does not depend on a cost-benefit

analysis of the defendants actions (i.e., whether the defendants assistance was

substantial). Instead, a 3E1.1 motion must state whether a specific action of

the defendant timely notice of a guilty plea resulted in specific effects for the

government and the court: avoidance of inefficient allocation of resources for trial

preparation. Unlike in Wade, the government cannot substitute its plea bargain

wish list for objective trial preparation. Unfortunately, later cases have cited

Espinoza-Cano for the proposition that the government has broad discretion under

3E1.1, without limiting that discretion to the objective terms of the relevant

guideline. E.g., Medina-Beltran, 542 F.3d 731. This error was repeated in

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Johnson. 581 F.3d at 1001 ([T]he government has been vested with broad

discretion ...) (quotingMedina-Beltran).

The Fourth Circuit, recognizing the significant differences between

government motions under 5K1.1 and 3E1.1, rejected the Wade standard for

3E1.1 motions:

Accordingly, under 3E1.1(b), the Government retains discretion to

refuse to move for an additional one-level reduction, but only on the

basis of an interest recognized by the guideline itself not, as with

5K1.1, on the basis of any conceivable legitimate interest.

Divens, 650 F.3d at 345-48; see also REFUSING TO COMPARE APPLES AND

ORANGES: WHY THE FOURTH CIRCUIT GOT IT RIGHT IN UNITED STATES V.

DIVENS, 90 N.C.L.Rev 1267, 1279-84 (2012) (approving difference in standard for

review of 5K1.1 and 3E1.1 motions as analyzed inDivens).

Similarly, inLee, the Second Circuit found the governments refusal to file

a 3E1.1 motion unlawful because it contravened the language and purpose of

the guideline. Lee, 653 F.3d at 174. The prosecutor in that case declined to file

the motion because the defendant, having pled guilty without a plea agreement,

presented evidence and made objections at sentencing. Id. at 172. The

government argued that the extensive preparation for sentencing was akin to

preparing for trial, and therefore no motion was warranted. The Lee Court

rejected both the argument that a 3E1.1 motion takes into consideration any

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resources other than actual trial resources (a hearing is not a trial) and the idea

that the reduction can be denied to a defendant who pleads guilty because the

defendant has declined to perform some other act to assist the government. Id. at

174, 175.

As implemented in the Second and Fourth Circuits, and as Judge Smith

suggested in his partial dissent in Johnson, review of governments exercise of

discretion under 3E1.1 must include consideration of the legitimate government

interest defined by the actual terms of the guideline. See Johnson, 581 F.3d at

1008 (We cannot effectively determine whether the governments basis for

denying the adjustment serves a legitimate government interest unless we first

know what that legitimate government interest is.). Rehearing en banc is needed

to correct the overly-broad standard in Espinoza-Cano and its misapplication in

later cases, includingMedina-Beltran.

D. An Interpretation Of Section 3E1.1 That Allows The

Government To Penalize Defendants Assertion Of

Constitutional Protections Would Imperil Constitutional

Rights And Must Be Avoided.

Almost twenty years ago, this Court held in United States v. Watt that, in

order to avoid unconstitutional application of Sentencing Guidelines, the

3E1.1 acceptance of responsibility reduction had to be construed so that a

sentencing court cannot consider against a defendant any constitutionally

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protected conduct. 910 F.2d 587, 592 (9th Cir. 1990) (citing Supreme Court

authority on constitutional avoidance).3 Until recently, relying on Watt, this Court

had consistently applied this principle, culminating in Vance, where the Court held

that a defendants Fourth Amendment litigation could not justify denying an

acceptance of responsibility reduction. Vance, 62 F.3d at 1157; accord United

States v. Kimple, 27 F.3d 1409, 1414-15 (9th Cir. 1994); United States v.

LaPierre, 998 F.2d 1460, 1467 (9th Cir. 1993) (3E1.1 does not allow the judge to

weigh against the defendant the defendants exercise of constitutional or statutory

rights).

Johnson evidenced little concern for the constitutional perils arising from a

construction of 3E1.1 that provides the government with virtually unreviewable

discretion to, in effect, impose a liberty tax for exercise of constitutional and

statutory appellate rights. Under the controlling precedent of Watt,Johnson

should have considered the constitutional dangers of its construction, then

construed the statute to avoid the risk to individual rights. Clark v. Martinez, 543

U.S. 371, 384 (2005) (requiring the plausible interpretation of a statute that

avoids constitutional problems). The reading of 3E1.1 to apply only to trial

preparation, not pretrial motions, sentencing and appeals, is not only a plausible

3Watts language regarding the weight accorded Guidelines commentary was

superseded in Stinson, 508 U.S. at 38.

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reading but the ordinary and natural meaning of the text. Johnsons reading of the

amended 3E1.1 trenches upon protected Fourth, Fifth, and Sixth Amendment

rights, and unconstitutionally conditions the adjustment downward upon

relinquishment of basic rights.

1. By Conditioning The One-Level Adjustment On

Relinquishment Of Non-Trial Rights And Appeals,

Johnson Jeopardized The Exercise Of Rights Under The

Fourth, Fifth, And Sixth Amendments.

In Watt, this Court protected defendants assertions of constitutional rights

by prohibiting denial of the adjustment under 3E1.1 based on a defendants

refusal to waive constitutional rights by making inculpatory statements and

disclosing the location of evidence. 910 F.2d at 593. The Courts solicitude for

rights enforced through pretrial motions has a distinguished pedigree. In Simmons

v. United States, the Court recognized the fundamental importance of the Fourth

Amendment right of defendants in federal prosecutions, upon motion and proof,

to have excluded from trial evidence which had been secured by means of an

unlawful search and seizure. 390 U.S. 377, 389 (1968).

In order to secure this right, defendants had to be free from both the direct

use and chilling effect of the prosecutions potential use at trial of the defendants

testimony in the suppression hearing. Simmons, 390 U.S. at 393 (contrary rule

may deter [the defendant] from asserting a Fourth Amendment objection). The

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Court held that the protection of the Fourth Amendment, and assurance against

deterring the exercise of those rights in pretrial motions, were so important that the

Constitution required that the testimony be protected by immunity:

When [the assumption that the defendant has a choice] is applied to a

situation in which the benefit to be gained is that afforded by

another provision of the Bill of Rights, an undeniable tension is

created. Thus, in this case [the defendant] was obliged either to give

up what he believed, with advice of counsel, to be a valid Fourth

Amendment claim or, in legal effect, to waive his Fifth Amendment

privilege against self-incrimination. In these circumstances, we find

it intolerable that one constitutional right should have to be

surrendered in order to assert another.

Id. (emphasis added).

By allowing the prosecutor to, in effect, start the sentencing calculation at a

higher level for those who do not relinquish non-frivolous Fourth Amendment

claims, Johnson breaks from a distinguished tradition of recognizing that the

litigation of suppression issues not only defends the individuals rights but

performs an essential societal purpose. It is a fair summary of history to say that

the safeguards of liberty have frequently been forged in controversies involving

not very nice people. United States v. Munoz, 701 F.2d 1293, 1301 (9th Cir.

1983) (quoting United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter,

J., dissenting)).

The liberty tax that prosecutors can place on assertion of pretrial and

appellate rights is by no means limited to the Fourth Amendment. Pretrial motions

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and their appeals involve a broad panoply of rights, including Fifth Amendment

rights against involuntary statements, Sixth Amendment rights to counsel and

venue, and constitutional protection against impermissibly suggestive

identification procedures. See also North Carolina v. Pearce, 395 U.S. 711, 723-

25 (1969) (prohibiting more severe punishment based on exercise of appellate

rights).4 In addition, defendants have a due process right to be sentenced based on

accurate information and guideline calculations. See, e.g., United States v.

McGowan, 668 F.3d 601 (9th Cir. 2012) (reviewing due process claim at

sentencing). Prosecutors infringe this right and imperil accurate sentencing

by conditioning the one-level reduction on a defendants agreement to a plea offer

that precludes sentencing arguments. See, e.g., Lee, 653 F.3d at 174 ([A]

defendant even one who pleads guilty has a due process right to reasonably

contest errors in the PSR that affect his sentence. . . . A defendant should not be

punished for doing so.).

2. Well-Established Constitutional Law Prohibits

Legislation That Conditions The Lower Level On The

Relinquishment Of Statutory And Constitutional Rights.

The principle that state action cannot burden the exercise of constitutional

rights by requiring the sacrifice of statutory rights is a basic motif in the Supreme

Courts jurisprudence. Sherbert v. Verner, 374 U.S. 398, 406 (1963); accord

4 Overruled on other grounds byAlabama v. Smith, 490 U.S. 794 (1989).

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Shapiro v. Thompson, 394 U.S. 618, 634 (1969).5 The Supreme Court has

articulated a delicate balance between denouncing as unconstitutional a statute

that allowed the death penalty only for those who opted for trial (United States v.

Jackson, 390 U.S. 570 (1968)) and permitting a harsher sentence for a defendant

who exercised his right to testify at trial, then perjured himself (Dunnigan v.

United States, 507 U.S. 87 (1993)). In formulating the original 3E1.1, the

Sentencing Commission was aware that the Constitution prohibited imposition of

a penalty for a defendants unsuccessful choice to stand trial. United States

Sentencing Commission Public Hearing On Plea Agreements, at 3-4 (Sept. 23,

1986) (citing Smith v. Wainwright, 664 F.2d 1194, 1196 (5th Cir. 1981)).6

As 3E1.1 was originally conceived, the sentencing judges discretion

provided the critical element to avoid constitutional difficulties: Investing the

Court with discretion to mitigate the sentence by a specified amount or amounts,

rather than directing specified guilty plea credit in all cases, would very much

undercut any Constitutional objection to the plan. Id. The 2003 amendment cut

5 Overruled in part, on other grounds, by Edelman v. Jordan, 415 U.S. 651

(1974).

6 The same concerns could have been voiced based on this Courts precedents

holding unlawful more severe sentences based on exercise of constitutional rights.

See, e.g., United States v. Capriola, 537 F.2d 319, 320 (9th Cir. 1976); United States

v. Stockwell, 472 F.2d 1187, 1187 (9th Cir. 1973).

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out the Judicial Branch discretion that protected the constitutionality of 3E1.1,

replacing it with the Executive Branchs motion as a condition precedent, to be

overseen by thousands of different prosecutors with radically varying ideas

regarding the proper scope of this new power. As construed by Johnson, the

amended 3E1.1 allows punishment for the assertion of constitutional and

statutory rights.

Well before the transfer of 3E1.1 authority to the prosecutor, now-Chief

Judge Kozinski and Judge Reinhardt identified the constitutional dangers of the

slippery distinction between rewarding acceptance of responsibility and punishing

exercise of constitutional rights. [W]hether a sentencing disparity is viewed as a

burden or a benefit depends upon whether the shorter sentence is compared to the

longer or the longer to the shorter. United States v. Aichele, 941 F.2d 761, 769

(9th Cir. 1991) (Kozinski, J., dissenting) (quoting United States v. Carter, 804

F.2d 508, 517 (9th Cir. 1986) (Reinhardt, J., dissenting)). In any event, the limits

of this rationale are surely reached where a defendant is required to give up the

benefit of a shorter sentence in order to preserve his right to effect an appeal.

Aichele, 941 F.2d at 769.

These constitutional concerns have not evaporated over the time the

Guidelines have been in effect. Institutionalized violations of the Sixth

Amendment were not identified and remedied until 20 years after the Guidelines

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were promulgated. The shift of sentencing authority away from the Judicial

Branch to the Executive Branch intensifies the serious constitutional concerns

expressed by judges from the outset of the Guideline era. The serious

constitutional questions require that 3E1.1 be construed as narrowly as possible

to avoid the constitutional issues raised by the interpretation inJohnson.

IV. CONCLUSION

The Court should grant rehearing en banc. Review of the issues raised by

this case is necessary to correct errors of reasoning in Johnson, Medina-Beltran,

and Espinoza-Cano, to restore the integrity of this Courts governing precedent

protecting constitutional rights, and to resolve questions of exceptional importance

in the administration of the federal criminal justice system.

Respectfully submitted this 1st day of November, 2012

/s/ Lisa Hay

Lisa Hay

Stephen Sady


23


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IN THE UNITED STATES COURT OF APPEALS


UNITED STATES OF AMERICA, ))

Plaintiff-Appellee, ) CA No. 12-10135

)

v. )

)

HERBERT FRANKLIN VANEGAS- )

ORTIZ, )

)

Defendant-Appellant.)

BRIEF FORMAT CERTIFICATION

PURSUANT TO RULE 32(e)(4)

Pursuant to Ninth Circuit Rule 32(e)(4), I certify that the Brief of Amici

Curiae is proportionately spaced, has a typeface of 14 points or more and contains

4,952 words, which is greater than the 4200 word limit in Local Rule 29-2(c)(2).

A request to file an oversize brief was included in the motion accompanying this

pleading.

Dated this November 1, 2012.

/s/ Lisa Hay

Lisa Hay


24


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APPENDIX


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App. 1

CMIECF - azd Page I of6

APPEALu.s. District CourtDISTRICT OF ARIZONA (Tucson Division)CRIMINAL DOCKET FOR CASE #: 4:11-cr-03664-RCC-HCE-l

Case title: USA v. Vanegas-Ortiz Date Filed: 10/26/2011Magistrate judge case number: 4: II-mj-07264-CRP-HCE Date Terminated: 03/09/2012Assigned to: Judge Raner C CollinsReferred to: Magistrate Judge Hector CEstradaAppeals court case number: 12-101359th Circuit Court of AppealsDefendant (1)Herbert Franklin Vanegas-OrtizTERMINATED: 0310912012

Pending Counts

8:1326 enhanced by 8: 1326(b)(2) ReEntry After Deportation(1)

Highest Offense Level (Opening)FelonyTerminated CountsNoneHighest Offense Level (Terminated)None

represented by Mark Francis WillimannThe Law Office of Mark F WillimannLLCPO Box 91010Tucson, AZ 85752520-579-6622Fax: 520-203-0203Email: [email protected] ATTORNEYATTORNEYTO BE NOTICEDDesignation: CJA AppointmentDispositiondefendant committed to BOP for a termof FORTY ONE (41) MONTHS, withcredit for time served; upon release,defendant shall be placed on supervisedrelease for a term of ONE (1) YEAR;Special Assessment: $100.00

Disposition

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App. 2

CM/ECF - azd Page 2 of6

Complaints Disposition8:1326(a), enhanced by 8: 1326(b)(2)Re-Entry After Deportation

PlaintiffUSA

Date Filed09/28/2011

09/29/201109/29/2011

10103/2011

10105/2011

1012612011

10/26/2011

#

12

.,

.:2.

4

5

6

represented by Erica Leigh Seger

Docket Text

US Attorneys Office - Tucson, AZ405 W Congress St., Ste. 4800Tucson, AZ 85701-4050520-620-7216Fax: 520-620-7320Email: [email protected] ATTORNEYATTORNEYTO BE NOTICED

Arrest ofHerbert Franklin Vanegas-Ortiz (ADI-ABU, ) [4:l1-mj-07264-CRP-HCE] (Entered: 09/29/2011)COMPLAINT as to Herbert Franklin Vanegas-Ortiz. (ADI-ABU,) [4:11-mj-07264-CRP-HCE] (Entered: 09/29/2011)Minute Entry for proceedings held before Magistrate Judge Charles R Pyle:Initial Appearance Without Counsel as to Herbert Franklin Vanegas-Ortiz heldon 9/29/2011, Interpreter required: Spanish. DetentionlPreliminary Hearing setfor 10/3/2011 at 10:30 AM before Magistrate Judge Jacqueline J Marshall.(Recorded by COURTSMART.) (KAH) [4:11-mj-07264-CRP-HCE] (Entered:09/3012011)Minute Entry for proceedings held before Magistrate Judge Jacqueline JMarshall: Attorney AppointmentlDetention Hearing as to Herbert FranklinVanegas-Ortiz held on 10/3/2011, Preliminary Hearing waived. Addedattorney Erica Leigh Seger for USA, Mark Francis Willimann (CJA) forHerbert Franklin Vanegas-Ortiz. Magistrate referral is Judge Estrada.(Recorded by COURTSMART.)(KAH) [4:11-mj-07264-CRP-HCE] (Entered:10105/2011)ORDER OF DETENTION as to Herbert Franklin Vanegas-Ortiz. Signed byMagistrate Judge Jacqueline J Marshall on 10/3/11.(KAH) [4:11-mj-07264-CRP-HCE] (Entered: 10105/2011)INDICTMENT as to Herbert Franklin Vanegas-Ortiz (1) count(s) 1.Arraignment set for 11110/2011 at 11 :00 AM before Magistrate JudgeJacqueline J l'vla rshall. (SMBE) (Entered: 10/27 /20 11)***NOTICE as to Herbert Franklin Vanegas-Ortiz: Counsel is advised as toARRAIGNMENT set for 11110/2011 @ 11:00 AM, TRIAL date is 12/20/2011

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App. 3

CMIECF - azd Page 3 of6

@ 9:30 AM, and PLEA DEADLINE is 12/2/2011. NOTE: Notice ofIntent toWaive Defendants Presence at Arraignment shall be filed no later thanTuesday prior to arraignment. (SMBE) (Entered: 10/27/2011)

1110812011 7 NOTICE OF INTENT TO FILE WAIVER of Defendant's Appearance AtArraignment by Herbert Franklin Vanegas-Ortiz fIled 11/8/2011. (Willimann,Mark) (Entered: 11/08/2011)1111012011 8 Minute Entry for proceedings held before Magistrate Judge Jacqueline JMarshall: Arraignment as to Herbert Franklin Vanegas-Ortiz held on11/10/2011. Defendant enters plea of NOT guilty to all pending counts.,Defendant PRESENCE WAIVED. Form of Waiver of Personal Appearance atArraignment and Entry of Not Guilty Plea and Acknowledgment of Trial Dateand Plea Deadline have been filed. Defendant provided with copy ofindictment. Motion Hearing Date: All pretrial motions shall be fIledsufficiently in advance of trial to avoid any delays in the trial pursuant toLRCrim 47.1. It is the responsibility of counsel to contact the referredMagistrate Judge to schedule a hearing on any motions requiring oralargument. Any motion or stipulation to continue the scheduled trial date andchange of plea hearing deadline shall be filed with the Clerk of the Court nolater than 5 :00 p.m. on the Monday following the plea deadline.

Appearances: AUSA Kyle Healey, attorney on duty for the Government, CJAAttorney Wanda Day for Mark Willimann for defendant. Defendant is notpresent and in custody. Jury Trial set for 12/20/2011 at 9:30 AM before JudgeRaner C Collins. Plea deadline is 12/02111. (Recorded by COURTSMART.)This is a TEXT ENTRY ONLY. There is no PDF document associated withthis entry. (ADI-CKS,) (Entered: 11115/2011)11/10/2011 2 WAIVER OF DEFENDANT'S PRESENCE at Arraignment and

Acknowledgment of Trial Date by Herbert Franklin Vanegas-Ortiz filed11/10/2011. (KAH) (Entered: 11/15/2011)12/0112011 11 NOTICE OF CHANGE OF PLEA HEARING set for 12/2111 at 2:30 p.m. by- Herbert Franklin Vanegas-Ortiz (Willimann, Mark) (Entered: 12/01/2011)12/0112011 12 Defense counsel having contacted the court, IT IS ORDERED as to HerbertFranklin Vanegas-Ortiz, a Change of Plea Hearing is set for 12/2/2011 at 02:30

PM in Courtroom 3A, 405 West Congress Street, Tucson, AZ 85701 beforeMagistrate Judge Hector C Estrada. Ordered by Magistrate Judge Hector CEstrada.(HCE)(This is a TEXT ENTRY ONLY. There is no pdf documentassociated with this entry.) (Entered: 12/01/2011)12/02/2011 13 Minute Entry for proceedings held before Magistrate Judge Hector C Estrada:Change of Plea Hearing as to Herbert Franklin Vanegas-Ortiz held on12/2/2011. Herbert Franklin Vanegas-Ortiz enters plea of guilty to one-countindictment. NO Plea Agreement filed. THE COURT ORDERS the trialdatelpending hearings VACATED. Pending motions and pending reports andrecommendations are rendered moot. Prior custody Ire lease orders areAFFIRMED. The Court directs the US Probation Office to prepare a

Presentence Report.

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App. 4

CMIECF - azd Page 4 of6

Appearances: AUSA Erica Seger for the Government, CJA Attorney MarkWillimann for defendant. Defendant is present and in custody. SpanishInterpreter Ron Zellon assists defendant. Sentencing set for 2/1012012 at 09:45AM before Judge Raner C Collins. (Recorded by COURTSMART.) This is aTEXT ENTRY ONLY. There is no PDF document associated with this entry.(SN) (Entered: 12/05/2011)

12102/2011 14 CONSENT OF DEFENDANT Herbert Franklin Vanegas-Ortiz AND ORDEROF REFERRAL to Magistrate Judge Hector C. Estrada for entry of GuiltyPlea. Signed by Judge Raner C Collins on 12/2111.(KAH) (Entered:12/05/2011)12/05/2011 15 MAGISTRATE JUDGE FINDINGS & RECOMMENDATIONS UPON APLEA OF GUILTY as to Herbert Franklin Vanegas-Ortiz. Signed byMagistrate Judge Hector C Estrada on 12/6111.(KAH) (Entered: 12/05/2011)12/06/2011 16 NOTICE OfFiling OfDefendant'S Prior Crime ofViolenceConviction/Judicially Noticeable Documents by USA as to Herbert FranklinVanegas-Ortiz (Attachments: # 1 Exhibit, # l Supplement)(Seger, Erica)

(Entered: 12/06/2011)12/09/2011 17 NOTICE of ntent Not to Move for 3rd Point by USA as to Herbert FranklinVanegas-Ortiz (Seger, Erica) (Entered: 12/09/2011)12/20/2011 18 The District Court has reviewed the Findings and Recommendations of theMagistrate Judge 12. and no objection have been filed. Therefore, IT ISORDERED that the Findings and Recommendation of the Magistrate Judge areadopted and this Court accepts defendant's PLEA OF GUILTY as to HerbertFranklin Vanega -Ortiz. Ordered by Judge Raner C Collins.(CLB)(This is a

TEXT ENTRY ONLY. There is no pdf document associated with this entry.)(Entered: 12/2012011)01119/2012 .12 NOTICE OfFiling OfDefendant'S Prior rime Conviction/JudiciallyNoticeable Documents by USA as to Herbert Franklin Vanegas-Ortiz(Attachments: # 1 Exhibit, # l Supplement)(Seger Erica) (Entered:01119/2012)02/08/2012 20 First MOTION to Continue Sentencing currently scheduledfor 2/10/12 at 9:45by Herbert Franklin Vanegas-Ortiz. (Willimann, Mark) (Entered: 02/08/2012)02/08/2012 21 MINUTE ORDER: Motion to Continue Sentencing 20 filed by HerbertFranklin Vanegas-Ortiz is GRANTED. Sentencing is continued to MARCH 9,2012 AT 9:30 AM before Judge Raner C. Collins. ***NOTE TOCOUNSEL:*** The Court notes this is the first motion to continueSentencing. In the event more than two motions to continue Sentencing arefiled, this Court will set a Status Conference. This is a TEXT ENTRY ONLY.There is no PDF document associated with this entry. (SFuller) (Entered:02/08/2012)03/08/2012 22 SENTENCING MEMORAl-\lDUM by Herbert franldin Vanegas-Ortiz(Attachments: # 1 Exhibit Change of Plea Transcript)(Willimann, Mark)(Entered: 03/08/2012)

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App. 5

CMlECF - azd Page 5 of6

03/0912012 23 Minute Entry - Sentencing as to Herbert Franklin Vanegas-Ortiz held on31912012 before Judge Daniel L Hovland: Sentence imposed. Judgment toissue.,Appearances: AUSA Erica Seger for the Government, CJA Attorney MarkWillimann for defendant. Defendant is present and in custody. SpanishInterpreter Juan Radillo assists defendant. (Court Reporter SandraEhrmantraut.) This is a TEXT ENTRY ONLY. There is no PDF documentassociated with this entry. (MME for Linda Reis) (Entered: 03/09/2012)

03/09/2012 24 JUDGMENT AND COMMITMENT ISSUED as to Herbert Franklin Vanegas-Ortiz, defendant committed to BOP for a term ofFORTY ONE (41)MONTHS, with credit for time served; upon release, defendant shall be placedon supervised release for a term ofONE (1) YEAR; Special Assessment:$100.00. Signed by Judge Daniel L Hovland on 03/09112.(ESL) (Entered:03/09/2012)0311712012 25 NOTICE OF APPEAL by Herbert Franklin Vanegas-Ortiz (Willimann, Mark)

(Entered: 03117/2012)03119/20] 2 26 USCA Case Number for Notice of Appeal to 9th Circuit as to HerbertFranklin Vanegas-Ortiz: Case no 12-10135, 9th Circuit Court ofAppeals.(BAC) (Entered: 03/2112012)03/19/2012 27 TIME SCHEDULE ORDER ofUSC A (certified copy) as to Herbert Franklin- Vanegas-Ortiz re 25 Notice ofAppeal to 9th Circuit. (BAC) (Entered:03/2112012)04/1112012 28 TRANSCRIPT REQUEST by Herbert Franklin Vanegas-Ortiz for proceedingsheld on 12/2111 & 319/12 before Judge Estrada and Judge Hovland, re 25Notice ofAppeal to 9th Circuit. (Willimann, Mark) (Entered: 0411112012)04118 /201 2 30 TRANSCRIPT of PLEA HEARING as to Herbert Franklin Vanegas-Ortiz fordate of 12/02/2011 before Judge Hector C. Estrada, re 25 Notice ofAppeal to9th Circuit Transcriber Elaine Cropper. Transcript may be viewed at the courtpublic terminal or purchased through the Transcriber before the deadline forRelease ofTranscript Restriction. After that date it may be obtained throughPACER. Redaction Request due 51912012. Redacted Transcript Deadline setfor 5/2112012. Release of Transcript Restriction set for 7/17/2012. (SGG)(Entered: 04118/2012)04/20/2012 31 TRANSCRIPT of SENTENCING as to Herbert Franklin Vanegas-Ortiz fordate of 03109/2012 before Judge Daniel L. Hovland, re 25 Notice ofAppeal to

9th Circuit Court Reporter Sandra E. Ehrmantraut. Transcript may be viewedat the court public terminal or purchased through the Court Reporter before thedeadline for Release ofTranscript Restriction. After that date it may beobtained through PACER. Redaction Request due 5/11/2012. RedactedTranscript Deadline set for 5/2112012. Release ofTranscript Restriction set for7119/2012. (SGG) (Entered: 04/20/2012)

1 : = 1=====P=A=C=E=R=s=e=rv=ic=e=c=e=n=te=r======:11

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App. 6

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I Transaction Receipt II 10/311201206:46 :20 IIPACER,Login: IIfp0075 IIClient Code: II/DescriPtion: I / ~ o c k e tReport I I ~ e a r c hCriteria: 1/4 : 1-cr-03664-RCC-HCE II illable Pages: 114 IICost: 11 0.40 I

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App. 7

Case 4:11-cr-03664-RCC-HCE Document 17 Filed 12/09/11 Page 1 of 2

1 ANN BIRMINGHAM SCHEELActing United States Attorney2 District of ArizonaERICA L. SEGER3 Special Assistant United States AttorneyState Bar No. 0226814 405 West Congress, Suite 4800Tucson, Arizona 85701-50405 Telephone: (520) 620-7300Email: [email protected] Attorneys for Plaintiff

7 UNITED STATES DISTRICT COURT8 DISTRIC T OF ARIZONA9

10111213141516171819202122232425262728

UNITED STATES OF AMERICA,Plaintiff,

v.HERBERT VANEGAS-ORTIZ,

Defendant.

))))))))))

CR-1l-3664-TUC-RCC

GOVERNMENT'S NOTICE OFINTENT NOT TO MOVE FOR THIRDPOINT REDUCTION UNDER U .S.S.G. 3E1.1(b)

Plaintiff, United States of America, by and through its attorneys, ANNBIRMINGHAM SCHEEL, Acting United States Attorney for the District of Arizona, andErica L. Seger, Special Assistant United States Attorney, hereby notifies the court of theGovernment's intent not to move for the additional, third-level reduction for acceptance ofresponsibility, pursuant to U.S.S.G. 3E1.1(b) for the following reasons:

This was a fast-track immigration case in which the defendant rejected theGovernment's early-disposition plea offer and ultimately plead guilty to the Indictmentwithout benefit of a plea agreement. As a result, the defendant is not bound by a traditionalplea agreement and is free to argue fo r downward departure, reduction of the sentencingguideline calculations, and any other available reductions normally outside the range of ajoint, written plea agreement. The defendant may also fully appeal his conviction andsentence at any time, collaterally attack his conviction and sentence, and/or contest thereinstatement of his prior removal order. By not waiving these challenges via a traditionalplea agreement, the United States cannot justify a "third-point" reduction.


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Th e Government ' s in te rest in co nserving its prosec i to ria l resources in a district w ithexcepti onally la rge numb ers o f immigration cases ha s not been prese rved when a de fendantchooses to reject a pica agreement that would otherwise incorporate the aforementionedwaivers. See United States v. Johnson, 581 F.3d 994 , 1002 (9th Cir. 2009) C'Accordingly,the issue before us is whether the allocation and expend iture of prosccutorial resources forthe purposes of defend ing an appeal is a rationa l bas,is for dec lining to move for the thirdreduct ion point. We ho ld that it is ."); See United Slales v. Medil/a-Beltra", 542 F 3d 729 (9'"Cir. 2008) (specifica lly holding that the absence of waiving traditionally-b road appea l rightswas grou nds for not award ing a third-point reduction). Mo re recent unpublished decis ion sby the Ninth C ircui t show that the absence of appe llate wa ive rs contin ues to be a proper basisfor w ithholding the third -po int reduction. See , United States v. Pella-Segura , 20 10 WL15 83334 (9th Cir. Apri l 2 1, 2010) (unpublished) ("Pena- Segura also contends that theGovernment acted arbitrarily by declining to req uest an addit ional one-level reduct ionpursuant to U.S.S.G. 3E I.I (b) because Pena-Segura did not accept a plea offer. Thiscontent ion lacks merit.") ; United States v. Miller, 20 10 W L 675293 (9th Cir. Feb. 25 , 20 I0)(unpublished) ("We have conc lusive ly determined that a defendant who fails to wa ive herr ight to appea l justifies th e failu re to request the reduction.") (both citing Medina-Beltran).

Therefore, the Un ited States he reby notifies the C ourt and the defendant that it doesnot intend to make a motion for a third - leve l reduct ion in th is case.

RESPECTFULLY SUBM ITTED thi s 9th day of December, 20 II.AN N BIRMING HAM SC HEELAct ing United States AttorneyDistrict of Ari zon a/S/ Er ica L. SegerERlCA L. SEGERSp ec ial Ass istant Un ited States Anorney

Copy of the foregoing has been sent electron icallyor by other means on lh is 9'" day of D ecember, 201 1 to:

Mark Witl iman, Esq.


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APPENDIX OF CASESNinth Circuit cases in which defendants timely notified the government of anintent to plead guilty but were denied the one-level reduction for acceptanceof responsibility under 3E1.1(b).United States v. Sanchez-Ramirez, 11-30170,2012 WL 3198530, at *2 (9th Cir.Aug. 8,2012) (holding that defendant's argument that his refusal to waiveappellate rights is not valid basis for government's failure to move for reductionwas foreclosed by United States v. Johnson, 581 F.3d 994, 1003-1004 (9th Cir.2009))United States v. Alvarado, 478 F. App'x 473, No. 11-10622,2012 WL 4044523,at *1 (9th Cir. Sept. 10,2012) (reservation of right to appeal is appropriate basisfor denial of 3E1.1(b) reduction).United States v. Sharpton, 474 F. App'x 541 (9th Cir. 2012) (rejecting defendant'sargument "that the government's refusal to move for the third point was arbitraryin light of the fact that the plea offer that Sharpton rejected would have permittedan appeal").United States v. Rivas-Meneses, 477 F. App'x 458 (9th Cir. 2012) (upholdingdenial of 3E1.1(b) reduction for defendant's "refusal to waive his right toappeal").United States v. Chavez-Torres, 473 F. App'x 605 (9th Cir. 2012) ("[Defendant]contends that the district court erred by not granting an additional one-levelreduction for acceptance of responsibility. This contention lacks merit.") (citingJohnson, 581 F.3d at 1003-04).United States v. Magana, 476 F. App'x 114, 116 (9th Cir. 2012) ("[The]Government would not move for a one-level reduction because Magana had notwaived his right to appeal when he pled guilty.").United States v. Jimenez, 470 F. App'x 680, 681 (9th Cir. 2012) ("failure to waive. . . right to appeal" is proper basis for not moving for reduction).

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United States v. Zamudio-Gomez, 469 F. App'x 535 (9th Cir. 2012) (governmentdid not act arbitrarily in refusing to move for reduction under 3E1.1(b) whendefendant refused to waive right to appeal).

United States v. Meza-Gutierrez, 468 F. App'x 802, 803 (9th Cir. 2012) ("[T]hegovernment's refusal to move for the additional one-level reduction was justifiedbecause Meza-Gutierrez refused to waive his appellate rights. ").United States v. Duarte-Sabori, 466 F. App'x 580,581 (9th Cir. 2012) (refusal towaive appellate rights was a "rational basis" for government to refuse to move forreduction under 3E1.1(b)) (citing Johnson, 581 F.3d at 1002-04).United States v. Shigley, 451 F. App'x 705 (9th Cir. 2011) (same as above).United States v. Machado-Medina, 401 F. App'x 202 (9th Cir. 2010) ("[T]hegovernment may, in its discretion, refuse to request a reduction under U.S.S.G. 3E1.1(b) based on a defendant's refusal to waive his or her appeal rights.").United States v. Yeste, 399 F. App'x 309,310 (9th Cir. 2010) ("[T]he governmentdeclined to move for the extra reduction because it would need to expendprosecutorial resources as Yeste had rejected a plea agreement.") (citing Johnson,581 F.3d at 1002-04).United States v. Pena-Segura, 377 F. App'x 605 (9th Cir. 2010) ("[T]heGovernment . . . declin[ ed] to request an additional one-level reduction pursuant toU.S.S.G. 3E1.1(b) because Pena-Segura did not accept a plea offer.").United States v. Miller, 367 F. App'x 807,808 (9th Cir. 2010), as amended ondenial ofreh'g June 11,2010 ("[A] defendant who fails to waive her right toappeal justifies the failure to request the reduction.").United States v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009) ("The governmentdid not file a 3E1.1(b) motion for the third-level reduction, citing Johnson'sstated intention to appeal the suppression order.").United States v. Contreras-Bracamonte, 338 F. App'x 620,622 (9th Cir. 2009)(government allowed to deny reduction "where the defendant pled guilty and

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avoided a trial on the substantive offense, but he objected to his sentencingenhancement and rejected the government's proposed appeal waiver") (quotingUnited States v. Medina-Beltran, 542 F .3d 729, 731 (9th Cir.2008) (per curiam)) .United States v. Medina-Beltran, 542 F.3d 729, 731 (9th Cir. 2008) (upholdinggovernment's decision not to move for reduction when defendant objected tosentencing enhancement and rejected appeal waiver).Note that this list does not include the district court cases in which the defendantagreed to adverse conditions in a plea agreement - including waiver of guidelinearguments, waiver of the right to present evidence at sentencing, or waiver of theright to appeal- in exchange for the government's motion under 3E.l.l(b), as thosecases result in no litigated opinion.

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CERTIFICATE OF SERVICE

I hereby certify that on November 1, 2012, I electronically filed the

foregoing Brief of Amici Curiae Ninth Circuit Federal Public and Community

Defenders and the National Association of Criminal Defense Lawyers in Support

of Defendant-Appellants Petition for Rehearing En Banc with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

/s/ Lisa Powell

Lisa Powell