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Eighth Circuit Affirms Sentencing Enhancement Not Advocated by Government
Mar 23rd, 2014

Is a defendant denying responsibility when he challenges a guideline enhancement in his presentence report? The Eighth Circuit leaves that important question open in United States v. Bowers, issued on March 4, 2014 (published). But it’s a complex question that raises competing principles: accuracy in sentencing, the enforceability of plea agreements, and the burdens of proof at sentencing.

Bowers pled guilty to being a felon in possession of a firearm and ammunition. His presentence report added a four-level enhancement because the firearm in question had allegedly been used in connection with another felony. At sentencing, Bowers objected to the enhancement and the facts underlying it (the government indicated it would not present evidence in support of the enhancement). When the district court noted rather ominously that “the defendant also doesn’t get acceptance of responsibility if he’s falsely denying and frivolously contesting relevant conduct,” defense counsel withdrew the objections to the factual allegations, but not the enhancement itself. The district court imposed the enhancement, and the Eighth Circuit affirmed. The Court explained that “Bowers withdrew his objections to the factual statements in the PSR, which permitted the district court to rely upon them to find that the [.] enhancement was applicable.”

The elephant in the room in this decision, however, is that the defense lawyer only withdrew the objection to the factual statements under threat of losing acceptance points. In United States v. Lee, the Second Circuit addressed the conflict between accuracy and acceptance points. In Lee, the government refused to make a motion granting the defendant his third acceptance point because the defendant had insisted on a hearing to resolve certain factual issues at sentencing. In a strongly-worded decision, the Second Circuit pointed out that “a defendant – even one who pleads guilty – has a due process right to reasonably contest errors in the PSR that affect his sentence” and “should not be punished for doing so” in good faith.


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JaneAnne Murray is a criminal defense lawyer in Minneapolis.

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