New 4th Circuit Ruling Is Major Sentencing Win for Defendants


The U.S. Court of Appeals for the 4th Circuit handed down a ruling earlier this month in United States v. Divens that made it harder for the government to refuse to grant a defendant an additional one-step downward departure for an acceptance of responsibility under United States Sentencing Guideline (U.S.S.G.) § 3E1.1(b).

Under the guidelines, defendants are typically given a two-level reduction for acceptance of responsibility pursuant to § 3E1.1(a). Defendants can get another one-step reduction under § 3E1.1(b) on the motion of the government. The Fourth Circuit in Divens rejected the argument that the government should be able to decline to move for an additional one-step departure because the defendant rejected the government’s plea agreement.

This case is a significant win for defendants because it makes it much harder for the government to deny a defendant an additional one-step reduction. Additionally, by not being under any pressure to accept a plea agreement, a defendant is able to preserve his appellate rights.

This decision marks a sharp departure from all other circuits that have ruled that the additional one-step downward departure could be denied to defendants who did not agree to waive their appellate rights.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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