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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