U.S. v. Divens – no loss of acceptance of responsibility for refusing to waive right to appeal

In U.S. v. Divens, decided July 5, 2011, the Fourth Circuit Court of Appeals held that the government cannot refuse to to move for an additional one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b) solely because a defendant refuses to waive his right to appeal or to collateral review of his sentence. It is standard for a defendant who pleads guilty in federal court to receive a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), but what was at issue in this case was the additional one-level reduction that is granted upon motion of the government. Basically, this opinion says that, although the government has some discretion in when it moves for the additional one-level reduction, it cannot base it's decision on a defendant's waiver of his right to appeal.

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