In the recent case of United States v. Evans, 744 F.3d 1192 (10th Cir. 2014), discussed here in the context of loss calculation for sentencing purposes, the defendant had entered into a plea agreement.  In it, the Government and defendant reserved their respective rights to argue about the amount of loss at sentencing, and the Government agreed to a three-level downward adjustment for acceptance of responsibility.  The third-level reduction, awarded under Section 3E1.1(b) of the Sentencing Guidelines, is routinely agreed to as a matter of plea negotiation, but under the terms of the Section literally becomes applicable when the early guilty plea can be said to allow the Government, and the court, to allocate resources efficiently, i.e., avoid preparing for trial.  Procedurally, however, the Section requires a motion of the Government to actuate that third-level of sentence reduction.

Predictably, Evans vigorously argued about the proper calculation of "loss" in his case, even filing two sentencing memoranda to drive home his argument that, in this investment fraud case, the losses of his investors in low-income rental housing were precipitated largely by the country's economic downturn, not by his actions.  The vindictive prosecutor then withheld the motion necessary to allow the sentencing judge to grant Evans a third-level reduction for acceptance of responsibility, thereby increasing his sentencing exposure and his ultimate sentence.

The Tenth Circuit held that the Government's decision to withhold the motion bore no rational relationship to any resource allocation considerations.  Moreover, the defendant's insistence on arguing about the loss calculation was not inconsistent with accepting responsibility for the crime.   Therefore, the district court's judgment declining to award the extra level of reduction was clear error, and the sentence was vacated.

(Alain Leibman, Esq., the author of this entry, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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