Sentencing — acceptance of responsibility

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — acceptance of responsibility

A prosecutor may withhold a motion under U.S.S.G.3E1.1(b) for any reason that does not violate the constitution.

“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, 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.

12-3552 U.S. v. Davis

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Per Curiam.