No.

12-10135
(Panel: Circuit Judges Reinhardt, Wardlaw, and Bea)
Memorandum disposition filed September 7, 2012

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HERBERT FRANKLIN VANEGAS-
ORTIZ,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona

BRIEF OF AMICI CURIAE NINTH CIRCUIT FEDERAL PUBLIC AND
COMMUNITY DEFENDERS AND THE NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS IN SUPPORT OF DEFENDANT-
APPELLANTS PETITION FOR REHEARING EN BANC

David M. Porter
Vice-Chair, NACDL
Ninth Circuit Amicus Committee
801 I Street, 3rd Floor
Sacramento, California 95814
(916) 498-5700
Lisa Hay
Assistant Federal Public Defender
Stephen Sady
Chief Deputy Federal Public Defender
101 SW Main Street, Suite 1700
Portland, Oregon 97204
(503) 326-2123
Counsel For Amici Curiae
TABLE OF CONTENTS
Page
I. REASONS FOR GRANTING REHEARING EN BANC. . . . . . . . . . . . . . . 1
II. SUMMARY OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. REHEARING EN BANC SHOULD BE GRANTED TO CORRECT
THE ERRONEOUS RULINGS IN JOHNSON AND MEDINA-
BELTRAN, CASES THAT MISCONSTRUED THE SENTENCING
GUIDELINE REDUCTION FOR ACCEPTANCE OF
RESPONSIBILITY, RESULTING IN AN UNWARRANTED
EXPANSION OF GOVERNMENT DISCRETION OVER
SENTENCES AND AN INTOLERABLE RISK OF PUNISHMENT
FOR THE EXERCISE OF CONSTITUTIONAL AND APPELLATE
RIGHTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Under The Plain Language Of Section 3E1.1, The Only Act
Required Of A Defendant To Be Eligible For The Reduction Is A
Timely Notice Of Intent To Plead Guilty. . . . . . . . . . . . . . . . . . . . . . . 5
B. The Text Of Section 3E1.1, Its Commentary, And This Courts
Precedents All Make Clear That Conservation Of Trial
Resources, Not Other Resources, Is The Outcome To Be Assessed
From A Defendants Timely Plea. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. The Johnson Courts Error Stems In Part From Erroneous
Reasoning in Espinoza-Cano, Which Was Adopted In Medina-
Beltran.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
D. An Interpretation Of Section 3E1.1 That Allows The Government
To Penalize Defendants Assertion Of Constitutional Protections
Would Imperil Constitutional Rights And Must Be Avoided. . . . . . 16
1. By Conditioning The One-Level Adjustment On
Relinquishment Of Non-Trial Rights And Appeals,
Johnson Jeopardized The Exercise Of Rights Under The
Fourth, Fifth, And Sixth Amendments.. . . . . . . . . . . . . . . . . . 18
i
2. Well-Established Constitutional Law Prohibits Legislation
That Conditions The Lower Level On The Relinquishment
Of Statutory And Constitutional Rights. . . . . . . . . . . . . . . . . 20
IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
BRIEF FORMAT CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
APPENDIX
Clerks Docket.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App-1
Government Notice of Intent Not to File 3E1.1 Motion. . . . . . . . . . . App-7
List of Related Ninth Circuit Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . App-9
ii
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Alabama v. Smith,
490 U.S. 794 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Clark v. Martinez,
543 U.S. 371 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Dunnigan v. United States,
507 U.S. 87 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Edelman v. Jordan,
415 U.S. 651 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Leocal v. Ashcroft,
543 U.S. 1 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
North Carolina v. Pearce,
395 U.S. 711 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Rivers v. Roadway Express, Inc.,
511 U.S. 298 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Shapiro v. Thompson,
394 U.S. 618 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Sherbert v. Verner,
374 U.S. 398 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Simmons v. United States,
390 U.S. 377, 389 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19
Smith v. Wainwright,
664 F.2d 1194 (5th Cir. 1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
iii
Stinson v. United States,
508 U.S. 36 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 17
United States v. Aichele,
941 F.2d 761 (9th Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
United States v. Capriola,
537 F.2d 319 (9th Cir. 1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
United States v. Divens,
650 F.3d 343 (5th Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 9, 12, 15
United States v. Espinoza-Cano,
456 F.3d 1126 (9th Cir. 2006).. . . . . . . . . . . . . . . . . . . . 4, 11, 13, 14, 16, 23
United States v. Jackson,
390 U.S. 570 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
United States v. Jimenez,
470 Fed. Appx. 680 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Johnson,
581 F.3d 994 (9th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
United States v. Kimple,
27 F.3d 1409 (9th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17
United States v. LaPierre,
998 F.2d 1460 (9th Cir. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Lee,
653 F.3d 170 (2d Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 15, 20
United States v. McGowan,
668 F.3d 601 (9th Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Medina-Beltran,
542 F.3d 729 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 14, 16, 23
iv
United States v. Munoz,
701 F.2d 1293 (9th Cir. 1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Rabinowitz,
339 U.S. 56 (1950). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Sarbia,
367 F.3d 1079 (9th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States v. Stockwell,
472 F.2d 1187 (9th Cir. 1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
United States v. Vance,
62 F.3d 1152 (9th Cir. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10, 17
United States v. Watt,
910 F.2d 587 (9th Cir. 1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18
Wade v. United States,
504 U.S. 181 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13, 14, 15
FEDERAL STATUTES
18 U.S.C. 3553(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
UNITED STATES SENTENCING GUIDELINES
Section 3E1.1 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Section 5K1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 13, 14, 15
U.S.S.G. Appendix C, amendment 649.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9
v
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) CA No.12-10135
)
v. )
)
HERBERT FRANKLIN VANEGAS- )
ORTIZ, )
)
Defendant-Appellant. )

BRIEF OF AMICI CURIAE NINTH CIRCUIT FEDERAL PUBLIC AND
COMMUNITY DEFENDERS AND THE NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS IN SUPPORT OF
DEFENDANT-APPELLANT'S PETITION FOR REHEARING EN BANC

I. REASONS FOR GRANTING REHEARING EN BANC
Two Circuits have explicitly rejected the case relied upon by this Panel,
United States v. Johnson, 581 F.3d 994 (9th Cir. 2009), that addresses the
acceptance of responsibility guideline adjustment under 3E1.1(b). See United
States v. Divens, 650 F.3d 343, 347 (4th Cir. 2011) (rejecting Johnson); United
States v. Lee, 653 F.3d 170, 174 n.1 (2d Cir. 2011) (rejecting Johnson). The Panel
applied Johnson and related circuit precedents that miscontrue the plain text of
3E1.1, unduly expand government discretion to withhold a motion for sentence
1
reduction, and create substantial danger that exercise of constitutional and
appellate rights will be chilled or punished. Section 3E1.1 applied to 94.2.% of all
federal sentences in 2010, and the specific language at issue in this case applied in
at least 60% of those cases. See REFUSING TO COMPARE APPLES AND ORANGES:
WHY THE FOURTH CIRCUIT GOT IT RIGHT IN UNITED STATES V. DIVENS, 90
N.C.L.Rev 1267, 1287 (2012) (noting circuit split on interpretation of 3E1.1(b)
and citing statistics from U.S. Sentencing Commission). Rehearing en banc should
be granted to consider the authoritative decisions of the Fourth and Second
Circuits and to correct the error in this Courts precedents.
II. SUMMARY OF THE CASE
The defendant pled guilty less than two months after arraignment and within
the time set by the Court as the first plea deadline (CD 6, 12, 13; App. at 1).
1

Because the defendant chose to plead guilty without accepting the governments
plea agreement, which required waiver of sentencing, appellate, and post-
conviction rights, the government filed notice that it would decline to move for the
one-level reduction in offense level for acceptance of responsibility under
3E1.1(b) (App. at 7).
1
CD refers to the Clerks Docket from the district court case, included in the
Appendix.
2
The governments authority to move for a one-level reduction was added to
3E1.1 by amendment in 2003. U.S.S.G. app. C, amendment 649 (April 30,
2003). Under the earlier guideline, no motion by the government was required
before the court awarded the one-level reduction. Under the new 3E1.1(b), the
sentencing court is directed to reduce the offense by an additional one level if
certain conditions (not relevant here) are met, and the government files a motion
stating:
that the defendant has assisted authorities in the investigation or
prosecution of his own misconduct by timely notifying authorities of
his intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the
government and the court to allocate their resources efficiently.
U.S.S.G. 3E1.1(b) (2003).
Having entered a timely guilty plea that allowed the government to avoid
expending trial resources, the defendant objected to the governments refusal to
file the 3E1.1(b) motion. The district court overruled the objection based on the
governments citation to United States v. Johnson, 581 F.3d 994 (9th Cir. 2009),
and United States v. MedinaBeltran, 542 F.3d 729 (9th Cir. 2008). In affirming,
the Panel found the issue foreclosed by precedent, while also acknowledging the
disagreement of other circuits. Defendant timely filed a petition for rehearing en
banc. This brief is filed in support.
3
III. REHEARING EN BANC SHOULD BE GRANTED TO CORRECT
THE ERRONEOUS RULINGS IN JOHNSON AND MEDINA-
BELTRAN, CASES THAT MISCONSTRUED THE SENTENCING
GUI DELI NE REDUCTI ON FOR ACCEPTANCE OF
RESPONSIBILITY, RESULTING IN AN UNWARRANTED
EXPANSION OF GOVERNMENT DISCRETION OVER
SENTENCES AND AN INTOLERABLE RISK OF PUNISHMENT
FOR THE EXERCISE OF CONSTITUTIONAL AND APPELLATE
RIGHTS.
Johnson misconstrued the plain language of the guideline, treating the 2003
amendments to 3E1.1 as if they had radically altered the guideline and made
previous case law interpreting this section irrelevant. Textual analysis of the
amended guideline, however, and a review of the commentary, demonstrate the
error in Johnsons analysis. By rejecting this Courts precedent in United States v.
Vance, 62 F.3d 1152, 1157 (9th Cir. 1995), and relying on erroneous reasoning in
United States v. Espinoza-Cano, 456 F.3d 1126 (9th Cir. 2006) later adopted in
Medina-Beltran the Johnson decision dramatically increased the discretion
available to prosecutors under 3E1.1. As Judge Smith predicted in his partial
dissent,
[T]he majority risks giving federal prosecutors undue license to
penalize defendants for forcing the government to expend resources,
even if the governments justification for doing so is entirely
unrelated to the stated objectives of the Sentencing Guidelines.
Johnson, 581 F.3d at 1007 (M. Smith, J., dissenting in part and concurring in the
judgment).
4
The Johnson majority dismissed the parade of horribles predicted to result
from its decision, id. at 1004, but now that parade is on the march. As
demonstrated in this case and the attached appendix of cases, prosecutors now
withhold the one-level reduction under 3E1.1 if defendants refuse to sign
government-drafted plea agreements agreements that may eliminate the right to
appeal, or to object to unconstitutional evidence, or to exercise due process rights
to present evidence and argument at sentencing. Nothing in 3E1.1 authorizes
this expansion of government power, and such an expansive interpretation of
3E1.1 imperils constitutional rights and should be avoided.
A. Under The Plain Language Of Section 3E1.1, The Only Act
Required Of A Defendant To Be Eligible For The
Reduction Is A Timely Notice Of Intent To Plead Guilty.
Section 3E1.1(b) instructs the court to decrease a defendants offense one
level when the defendant meets qualifying conditions (not relevant here) and the
government files a motion asserting that the defendant
assisted authorities in the investigation or prosecution of his own
misconduct by timely notifying authorities of his intention to enter a
plea of guilty, thereby permitting the government to avoid preparing
for trial and permitting the government and the court to allocate their
resources efficiently.
U.S.S.G. 3E1.1(b) (emphasis added). As the syntax makes clear, only one act is
required of a defendant: timely notification of the intent to plead guilty. This act of
the defendant must have certain consequences as a result of the timely plea, the
5
government must thereby be able to conserve resources by avoiding preparation
for trial but no act other than a timely guilty plea is required from the defendant.
In Johnson, the Court ignored the syntax of the guideline and construed the
terms as if a defendant were ineligible for the reduction if he either failed to enter
a timely plea or caused the government to expend resources. Thus, the Court held
that expected allocation and expenditure of prosecutorial resources for the
purposes of defending an appeal justified declining to move for the reduction,
even if a defendant entered a timely guilty plea. 581 F.3d at 1002. The Court read
3E1.1 to create a broad interest in conserving government resources in the
prosecution of the defendants misconduct. Id.
Other courts have rejected this broad reading of 3E1.1. In Divens, for
example, the Court analyzed the placement of the phrases by [timely notifying]
and thereby [permitting avoidance of trial preparation] in 3E1.1 to conclude
that nothing more than a timely guilty plea can be required of the defendant:
Section 3E1.1(b) thus instructs the Government to determine simply
whether the defendant has timely entered a plea of guilty and thus
furthered the guidelines purposes in that manner. It does not permit
the Government to withhold a motion for a one-level reduction
because the defendant has declined to perform some other act to assist
the Government. Certainly, timely entry of a plea of guilty does
not require the execution of an appellate waiver.
Divens, 650 F.3d at 348 (citation omitted); see also Lee, 653 F.3d at 174 (deeming
governments refusal to file a 3E1.1 motion unlawful because it contravened
6
the language of the guideline, its purpose, and the intent of Congress); Johnson,
581 F.3d at 1009 (Smith, J., dissenting in part); United States v. Jimenez, 470 Fed.
Appx. 680 (9th Cir. 2012) (unpublished) (Pratt, D.J., concurring) (While there are
numerous ways in which a defendant might aid in the investigation and
prosecution of his own misconduct, pleading guilty in a timely manner is the only
action contemplated by the guideline.).
Adopting the resource-preservation focus of Johnson, the prosecutor in this
case declined to move for the one-level reduction despite the defendants timely
guilty plea. The government justified its action by noting that the defendant
declined to sign the governments plea offer, thereby leaving open the potential
need to expend resources on sentencing or on appeal. Nothing in the guideline
justifies the imposition of additional eligibility requirements on defendants, such
as signing plea offers, abandoning sentencing arguments, or waiving appeal. This
erroneous outcome from Johnson requires correction.
B. The Text Of Section 3E1.1, Its Commentary, And This
Courts Precedents, All Make Clear That Conservation Of
Trial Resources, Not Other Resources, Is The Outcome To
Be Assessed From A Defendants Timely Plea.
Failing to adhere to the plain language of 3E1.1, and without addressing
the guidelines commentary, Johnson concluded that [w]hen 3E1.1(b) speaks of
conserving government resources in the prosecution of the defendants
7
misconduct, it means more than simply trial preparation. 581 F.3d at 1002.
Based on this construction of the text, Johnson ruled that the government can
consider its need to expend resources on an appeal, not just for trial preparation,
when deciding whether to move for the one-level reduction. Id.
Contrary to Johnsons assertion, the plain language of 3E1.1 does not
speak[] of conserving government resources in the prosecution of a defendants
misconduct. That construction merges two phrases of 3E1.1 that are
separated by significant text. Consideration of resources comes in the last
clause of 3E1.1, directly after the reference to avoiding trial preparation and the
requirement of a timely guilty plea. The plain language of 3E1.1 links
preservation of resources to the guilty plea (by a guilty plea thereby permitting
efficient allocation of resources). Johnson elides the crucial text to reach its
holding.
Moreover, had Congress been concerned with preservation of appellate
resources in addition to trial resources, it would have referred to courts, not to a
single court, in the last clause. Congresss choice to refer to the ability of the
government and the court to allocate resources efficiently precludes an
interpretation that this clause includes consideration of appellate costs. U.S.S.G.
3E1.1(b) (emphasis added). Accord Divens, 650 F.3d at 348 (Had Congress
8
intended to conserve appellate court resources, it would have referred to courts
not the court.).
The application notes further indicate that 3E1.1 addresses the allocation
and preservation only of trial resources. Application notes are binding on the
courts in their construction of the guidelines. Stinson v. United States, 508 U.S.
36, 38 (1993); United States v. Sarbia, 367 F.3d 1079, 1084 (9th Cir. 2004).
2
As
the notes explain, a defendant qualifies for the reduction if he has notified
authorities of his intention to enter a plea of guilty at a sufficiently early point in
the process so that the government may avoid preparation for trial and the court
may schedule its calendar efficiently. U.S.S.G. 3E.1.(b) cmt. (n.6) (emphasis
added). That the government should exercise its discretion to assess whether the
defendants actions have conserved trial resources is made explicit: the
Government is in the best position to determine whether the defendant has assisted
authorities in a manner that avoids preparing for trial. Id. Johnson failed to
consider these application notes when reaching its erroneous construction of
3E1.1.
2
That part of these application notes predate the 2003 amendment to 3E1.1
does not diminish their relevance. Congress amended the application notes for
3E1.1 when it amended the guidelines and could have deleted unwanted
commentary. U.S.S.G. Appendix C, amendment 649. Congress having left this text
unchanged indicates its continued adherence to the explanation in the commentary.
See Divens, 650 F.3d at 346 n. 1.
9
Finally, this Courts pre-Johnson precedents had already construed the
former 3E1.1 to preclude consideration of any resources other than trial
resources when assessing whether a defendant was eligible for the sentence
reduction. As analyzed in detail by Judge Smith in his partial dissent in Johnson,
this Court in Vance established that the reduction for acceptance of responsibility
could not be withheld solely because a defendant filed a motion to suppress.
Johnson, 581 F.3d at 1009-11 (citing Vance, 62 F.3d at 1157). Vance rejected an
argument that the governments expenditure of resources for the motion hearing,
like trial preparation, could be weighed against the defendant under 3E1.1: The
guidelines do not mean motions where they say trial. Id. at 1157 (citing
United States v. Kimple, 27 F.3d 1409, 1414-15 (9th Cir. 1994)). Because Vance
and Kimple had already interpreted the relevant text of 3E1.1, which was
substantially identical to the amended text, the Johnson Court erred in declining to
follow them. See Leocal v. Ashcroft, 543 U.S. 1, 12 n.8 (2004) (same statutory
language has same meaning regardless of context); Rivers v. Roadway Express,
Inc., 511 U.S. 298, 312-13 (1994) (judicial construction of statute is authoritative
statement of what statute means).
10
C. The Johnson Courts Error Stems In Part From Erroneous
Reasoning in Espinoza-Cano, Which Was Adopted In
Medina-Beltran.
In reaching its erroneous construction of the Guideline, Johnson relied
heavily on Espinoza-Cano, this Circuits seminal decision interpreting 3E1.1
after the 2003 amendment. Johnson, 581 F.3d at 1003. That case contains a
crucial error of reasoning, which resulted in a broad and unwarranted standard for
3E1.1 motions.
In Espinoza-Cano, the Court for the first time addressed the standard of
review applicable to the governments refusal to exercise its then-new authority
under 3E1.1 to move for the third level of reduction. 456 F.3d at 1136. The
panel chose to use the standard for review of the governments refusal to file a
motion under U.S.S.G. 5K1.1 to reward a defendants substantial assistance to
the government. Id. (citing Wade v. United States, 504 U.S. 181, 185-86 (1992)).
Although both 5K1.1 and 3E1.1 allow a decrease in sentence upon motion of
the government, the Espinoza-Cano panels resort to the Wade standard of review
failed to recognize significant textual and functional differences between 5K1.1
and 3E1.1 that rendered parts of the Wade reasoning inapposite in the context of
3E1.1 motions.
Most importantly, the commentary to 3E1.1 clarifies that the
governments decision to file a motion under 3E1.1 involves far less discretion
11
than the comparable decision to file a motion under 5K1.1. The application
commentary for 3E1.1 (but not for 5K1.1) uses mandatory terms to explain the
functioning of the guideline: the guideline provides an additional 1-level
decrease in offense level for a defendant U.S.S.G. 3E1.1, cmt. 6 (emphasis
added). Similarly, the background commentary adds that [s]uch a defendant has
accepted responsibility in a way that ensures the certainty of his just punishment,
thereby appropriately meriting an additional reduction. U.S.S.G. 3E1.1, cmt.
background (emphasis added). The commentary to 5K1.1 includes no
comparable reference to the defendant meriting the reduction based on specific
acts. These comments differentiate the wide discretion afforded to the
Government under 5K1.1 from the more limited decision the government must
make when deciding to move for an additional one-level reduction under 3E1.1.
Accord Divens, 650 F.3d at 345-48.
In addition, sentence reductions for substantial assistance to the government
do not involve constitutional tensions surrounding the relinquishment of
constitutional rights, as do reductions for acceptance for responsibility. The
statutory standards for substantial assistance focus solely on rewarding activity
that could be compelled by subpoena and immunity. 18 U.S.C. 3553(e). In
contrast, the tensions between rewarding acceptance of responsibility and
12
punishing assertions of constitutional rights has resulted in a generation of well-
established case law, as discussed below.
Finally, Espinoza-Cano failed to acknowledge the difference in the
triggering events established by Congress to justify a government motion for
reduction of sentence under 5K1.1 and 3E1.1. The governments motion for
sentence reduction under 5K1.1 is left to the governments subjective assessment
of whether a defendant has substantially assisted in the prosecution of another.
In contrast, the governments motion under 3E1.1 has three objective
components, all linked to the defendants plea: the motion must state that the
defendant (1) has assisted the authorities, (2) by a timely guilty plea (3) that avoids
trial preparation and the inefficient allocation of resources.
Not recognizing these significant differences between government motions
under 5K1.1 and 3E1.1, Espinoza-Cano adopted the full Wade standard,
without stating how the standard should be tailored to fit the specific guideline
limits of 3E1.1. Specifically, the Court provided that, under the Wade standard,
a defendant must show either that the government acted on the basis of an
unconstitutional motive (e.g., racial discrimination), or arbitrarily (i.e., for reasons
not rationally related to any legitimate governmental interest). Espinoza-Cano,
456 F.3d at 1136. The Espinoza-Cano court failed, however, to take the next step
13
of linking the definition of legitimate governmental interest to the specific
guideline-defined interests in 3E1.1, as described above.
Instead, in broad terms, Espinoza-Cano suggested the government could
employ the cost and benefit analysis of Wade to define the government interest:
As noted in Wade, [t]he Governments decision not to move may
[be] based . . . simply on its rational assessment of the cost and
benefit that would flow from moving.
Espinoza-Cano, 456 F.3d at 1138. Because of the different requirements for a
motion under 5K1.1 and 3E1.1, the Espinoza-Cano Panel erred in suggesting
that Wades subjective cost and benefit language should apply to assessment of
3E1.1 motions.
A government motion under 3E1.1 does not depend on a cost-benefit
analysis of the defendants actions (i.e., whether the defendants assistance was
substantial). Instead, a 3E1.1 motion must state whether a specific action of
the defendant timely notice of a guilty plea resulted in specific effects for the
government and the court: avoidance of inefficient allocation of resources for trial
preparation. Unlike in Wade, the government cannot substitute its plea bargain
wish list for objective trial preparation. Unfortunately, later cases have cited
Espinoza-Cano for the proposition that the government has broad discretion under
3E1.1, without limiting that discretion to the objective terms of the relevant
guideline. E.g., Medina-Beltran, 542 F.3d 731. This error was repeated in
14
Johnson. 581 F.3d at 1001 ([T]he government has been vested with broad
discretion ...) (quoting Medina-Beltran).
The Fourth Circuit, recognizing the significant differences between
government motions under 5K1.1 and 3E1.1, rejected the Wade standard for
3E1.1 motions:
Accordingly, under 3E1.1(b), the Government retains discretion to
refuse to move for an additional one-level reduction, but only on the
basis of an interest recognized by the guideline itself not, as with
5K1.1, on the basis of any conceivable legitimate interest.
Divens, 650 F.3d at 345-48; see also REFUSING TO COMPARE APPLES AND
ORANGES: WHY THE FOURTH CIRCUIT GOT IT RIGHT IN UNITED STATES V.
DIVENS, 90 N.C.L.Rev 1267, 1279-84 (2012) (approving difference in standard for
review of 5K1.1 and 3E1.1 motions as analyzed in Divens).
Similarly, in Lee, the Second Circuit found the governments refusal to file
a 3E1.1 motion unlawful because it contravened the language and purpose of
the guideline. Lee, 653 F.3d at 174. The prosecutor in that case declined to file
the motion because the defendant, having pled guilty without a plea agreement,
presented evidence and made objections at sentencing. Id. at 172. The
government argued that the extensive preparation for sentencing was akin to
preparing for trial, and therefore no motion was warranted. The Lee Court
rejected both the argument that a 3E1.1 motion takes into consideration any
15
resources other than actual trial resources (a hearing is not a trial) and the idea
that the reduction can be denied to a defendant who pleads guilty because the
defendant has declined to perform some other act to assist the government. Id. at
174, 175.
As implemented in the Second and Fourth Circuits, and as Judge Smith
suggested in his partial dissent in Johnson, review of governments exercise of
discretion under 3E1.1 must include consideration of the legitimate government
interest defined by the actual terms of the guideline. See Johnson, 581 F.3d at
1008 (We cannot effectively determine whether the governments basis for
denying the adjustment serves a legitimate government interest unless we first
know what that legitimate government interest is.). Rehearing en banc is needed
to correct the overly-broad standard in Espinoza-Cano and its misapplication in
later cases, including Medina-Beltran.
D. An Interpretation Of Section 3E1.1 That Allows The
Government To Penalize Defendants Assertion Of
Constitutional Protections Would Imperil Constitutional
Rights And Must Be Avoided.
Almost twenty years ago, this Court held in United States v. Watt that, in
order to avoid unconstitutional application of Sentencing Guidelines, the
3E1.1 acceptance of responsibility reduction had to be construed so that a
sentencing court cannot consider against a defendant any constitutionally
16
protected conduct. 910 F.2d 587, 592 (9th Cir. 1990) (citing Supreme Court
authority on constitutional avoidance).
3
Until recently, relying on Watt, this Court
had consistently applied this principle, culminating in Vance, where the Court held
that a defendants Fourth Amendment litigation could not justify denying an
acceptance of responsibility reduction. Vance, 62 F.3d at 1157; accord United
States v. Kimple, 27 F.3d 1409, 1414-15 (9th Cir. 1994); United States v.
LaPierre, 998 F.2d 1460, 1467 (9th Cir. 1993) (3E1.1 does not allow the judge to
weigh against the defendant the defendants exercise of constitutional or statutory
rights).
Johnson evidenced little concern for the constitutional perils arising from a
construction of 3E1.1 that provides the government with virtually unreviewable
discretion to, in effect, impose a liberty tax for exercise of constitutional and
statutory appellate rights. Under the controlling precedent of Watt, Johnson
should have considered the constitutional dangers of its construction, then
construed the statute to avoid the risk to individual rights. Clark v. Martinez, 543
U.S. 371, 384 (2005) (requiring the plausible interpretation of a statute that
avoids constitutional problems). The reading of 3E1.1 to apply only to trial
preparation, not pretrial motions, sentencing and appeals, is not only a plausible
3
Watts language regarding the weight accorded Guidelines commentary was
superseded in Stinson, 508 U.S. at 38.
17
reading but the ordinary and natural meaning of the text. Johnsons reading of the
amended 3E1.1 trenches upon protected Fourth, Fifth, and Sixth Amendment
rights, and unconstitutionally conditions the adjustment downward upon
relinquishment of basic rights.
1. By Conditioning The One-Level Adjustment On
Relinquishment Of Non-Trial Rights And Appeals,
Johnson Jeopardized The Exercise Of Rights Under The
Fourth, Fifth, And Sixth Amendments.
In Watt, this Court protected defendants assertions of constitutional rights
by prohibiting denial of the adjustment under 3E1.1 based on a defendants
refusal to waive constitutional rights by making inculpatory statements and
disclosing the location of evidence. 910 F.2d at 593. The Courts solicitude for
rights enforced through pretrial motions has a distinguished pedigree. In Simmons
v. United States, the Court recognized the fundamental importance of the Fourth
Amendment right of defendants in federal prosecutions, upon motion and proof,
to have excluded from trial evidence which had been secured by means of an
unlawful search and seizure. 390 U.S. 377, 389 (1968).
In order to secure this right, defendants had to be free from both the direct
use and chilling effect of the prosecutions potential use at trial of the defendants
testimony in the suppression hearing. Simmons, 390 U.S. at 393 (contrary rule
may deter [the defendant] from asserting a Fourth Amendment objection). The
18
Court held that the protection of the Fourth Amendment, and assurance against
deterring the exercise of those rights in pretrial motions, were so important that the
Constitution required that the testimony be protected by immunity:
When [the assumption that the defendant has a choice] is applied to a
situation in which the benefit to be gained is that afforded by
another provision of the Bill of Rights, an undeniable tension is
created. Thus, in this case [the defendant] was obliged either to give
up what he believed, with advice of counsel, to be a valid Fourth
Amendment claim or, in legal effect, to waive his Fifth Amendment
privilege against self-incrimination. In these circumstances, we find
it intolerable that one constitutional right should have to be
surrendered in order to assert another.
Id. (emphasis added).
By allowing the prosecutor to, in effect, start the sentencing calculation at a
higher level for those who do not relinquish non-frivolous Fourth Amendment
claims, Johnson breaks from a distinguished tradition of recognizing that the
litigation of suppression issues not only defends the individuals rights but
performs an essential societal purpose. It is a fair summary of history to say that
the safeguards of liberty have frequently been forged in controversies involving
not very nice people. United States v. Munoz, 701 F.2d 1293, 1301 (9th Cir.
1983) (quoting United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter,
J., dissenting)).
The liberty tax that prosecutors can place on assertion of pretrial and
appellate rights is by no means limited to the Fourth Amendment. Pretrial motions
19
and their appeals involve a broad panoply of rights, including Fifth Amendment
rights against involuntary statements, Sixth Amendment rights to counsel and
venue, and constitutional protection against impermissibly suggestive
identification procedures. See also North Carolina v. Pearce, 395 U.S. 711, 723-
25 (1969) (prohibiting more severe punishment based on exercise of appellate
rights).
4
In addition, defendants have a due process right to be sentenced based on
accurate information and guideline calculations. See, e.g., United States v.
McGowan, 668 F.3d 601 (9th Cir. 2012) (reviewing due process claim at
sentencing). Prosecutors infringe this right and imperil accurate sentencing
by conditioning the one-level reduction on a defendants agreement to a plea offer
that precludes sentencing arguments. See, e.g., Lee, 653 F.3d at 174 ([A]
defendant even one who pleads guilty has a due process right to reasonably
contest errors in the PSR that affect his sentence. . . . A defendant should not be
punished for doing so.).
2. Well-Established Constitutional Law Prohibits
Legislation That Conditions The Lower Level On The
Relinquishment Of Statutory And Constitutional Rights.
The principle that state action cannot burden the exercise of constitutional
rights by requiring the sacrifice of statutory rights is a basic motif in the Supreme
Courts jurisprudence. Sherbert v. Verner, 374 U.S. 398, 406 (1963); accord
4
Overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989).
20
Shapiro v. Thompson, 394 U.S. 618, 634 (1969).
5
The Supreme Court has
articulated a delicate balance between denouncing as unconstitutional a statute
that allowed the death penalty only for those who opted for trial (United States v.
Jackson, 390 U.S. 570 (1968)) and permitting a harsher sentence for a defendant
who exercised his right to testify at trial, then perjured himself (Dunnigan v.
United States, 507 U.S. 87 (1993)). In formulating the original 3E1.1, the
Sentencing Commission was aware that the Constitution prohibited imposition of
a penalty for a defendants unsuccessful choice to stand trial. United States
Sentencing Commission Public Hearing On Plea Agreements, at 3-4 (Sept. 23,
1986) (citing Smith v. Wainwright, 664 F.2d 1194, 1196 (5th Cir. 1981)).
6
As 3E1.1 was originally conceived, the sentencing judges discretion
provided the critical element to avoid constitutional difficulties: Investing the
Court with discretion to mitigate the sentence by a specified amount or amounts,
rather than directing specified guilty plea credit in all cases, would very much
undercut any Constitutional objection to the plan. Id. The 2003 amendment cut
5
Overruled in part, on other grounds, by Edelman v. Jordan, 415 U.S. 651
(1974).
6
The same concerns could have been voiced based on this Courts precedents
holding unlawful more severe sentences based on exercise of constitutional rights.
See, e.g., United States v. Capriola, 537 F.2d 319, 320 (9th Cir. 1976); United States
v. Stockwell, 472 F.2d 1187, 1187 (9th Cir. 1973).
21
out the Judicial Branch discretion that protected the constitutionality of 3E1.1,
replacing it with the Executive Branchs motion as a condition precedent, to be
overseen by thousands of different prosecutors with radically varying ideas
regarding the proper scope of this new power. As construed by Johnson, the
amended 3E1.1 allows punishment for the assertion of constitutional and
statutory rights.
Well before the transfer of 3E1.1 authority to the prosecutor, now-Chief
Judge Kozinski and Judge Reinhardt identified the constitutional dangers of the
slippery distinction between rewarding acceptance of responsibility and punishing
exercise of constitutional rights. [W]hether a sentencing disparity is viewed as a
burden or a benefit depends upon whether the shorter sentence is compared to the
longer or the longer to the shorter. United States v. Aichele, 941 F.2d 761, 769
(9th Cir. 1991) (Kozinski, J., dissenting) (quoting United States v. Carter, 804
F.2d 508, 517 (9th Cir. 1986) (Reinhardt, J., dissenting)). In any event, the limits
of this rationale are surely reached where a defendant is required to give up the
benefit of a shorter sentence in order to preserve his right to effect an appeal.
Aichele, 941 F.2d at 769.
These constitutional concerns have not evaporated over the time the
Guidelines have been in effect. Institutionalized violations of the Sixth
Amendment were not identified and remedied until 20 years after the Guidelines
22
were promulgated. The shift of sentencing authority away from the Judicial
Branch to the Executive Branch intensifies the serious constitutional concerns
expressed by judges from the outset of the Guideline era. The serious
constitutional questions require that 3E1.1 be construed as narrowly as possible
to avoid the constitutional issues raised by the interpretation in Johnson.
IV. CONCLUSION
The Court should grant rehearing en banc. Review of the issues raised by
this case is necessary to correct errors of reasoning in Johnson, Medina-Beltran,
and Espinoza-Cano, to restore the integrity of this Courts governing precedent
protecting constitutional rights, and to resolve questions of exceptional importance
in the administration of the federal criminal justice system.
Respectfully submitted this 1st day of November, 2012
/s/ Lisa Hay
Lisa Hay
Stephen Sady
Counsel For Amici Curiae
23
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) CA No. 12-10135
)
v. )
)
HERBERT FRANKLIN VANEGAS- )
ORTIZ, )
)
Defendant-Appellant. )

BRIEF FORMAT CERTIFICATION
PURSUANT TO RULE 32(e)(4)

Pursuant to Ninth Circuit Rule 32(e)(4), I certify that the Brief of Amici
Curiae is proportionately spaced, has a typeface of 14 points or more and contains
4,952 words, which is greater than the 4200 word limit in Local Rule 29-2(c)(2).
A request to file an oversize brief was included in the motion accompanying this
pleading.
Dated this November 1, 2012.
/s/ Lisa Hay
Lisa Hay
Counsel For Amici Curiae
24
APPENDIX
App. 1
CMIECF - azd Page I of6
APPEAL
u.s. District Court
DISTRICT OF ARIZONA (Tucson Division)
CRIMINAL DOCKET FOR CASE #: 4:11-cr-03664-RCC-HCE-l
Case title: USA v. Vanegas-Ortiz Date Filed: 10/26/2011
Magistrate judge case number: 4: II-mj-07264-CRP-HCE Date Terminated: 03/09/2012
Assigned to: Judge Raner C Collins
Referred to: Magistrate Judge Hector C
Estrada
Appeals court case number: 12-10135
9th Circuit Court of Appeals
Defendant (1)
Herbert Franklin Vanegas-Ortiz
TERMINATED: 0310912012
Pending Counts
8:1326 enhanced by 8: 1326(b)(2) Re-
Entry After Deportation
(1)
Highest Offense Level (Opening)
Felony
Terminated Counts
None
Highest Offense Level (Terminated)
None
represented by Mark Francis Willimann
The Law Office of Mark F Willimann
LLC
PO Box 91010
Tucson, AZ 85752
520-579-6622
Fax: 520-203-0203
Email: mfwillimann@yahoo.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: CJA Appointment
Disposition
defendant committed to BOP for a term
of FORTY ONE (41) MONTHS, with
credit for time served; upon release,
defendant shall be placed on supervised
release for a term of ONE (1) YEAR;
Special Assessment: $100.00
Disposition
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App. 2
CM/ECF - azd Page 2 of6
Complaints Disposition
8:1326(a), enhanced by 8: 1326(b)(2)
Re-Entry After Deportation
Plaintiff
USA
Date Filed
09/28/2011
09/29/2011
09/29/2011
10103/2011
10105/2011
1012612011
10/26/2011
#
1
2
.,
.:2.
4
5
6
represented by Erica Leigh Seger
Docket Text
US Attorneys Office - Tucson, AZ
405 W Congress St., Ste. 4800
Tucson, AZ 85701-4050
520-620-7216
Fax: 520-620-7320
Email: erica.seger@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Arrest of Herbert Franklin Vanegas-Ortiz (ADI-ABU, ) [4:l1-mj-07264-CRP-
HCE] (Entered: 09/29/2011)
COMPLAINT as to Herbert Franklin Vanegas-Ortiz. (ADI-ABU,) [4:11-mj-
07264-CRP-HCE] (Entered: 09/29/2011)
Minute Entry for proceedings held before Magistrate Judge Charles R Pyle:
Initial Appearance Without Counsel as to Herbert Franklin Vanegas-Ortiz held
on 9/29/2011, Interpreter required: Spanish. DetentionlPreliminary Hearing set
for 10/3/2011 at 10:30 AM before Magistrate Judge Jacqueline J Marshall.
(Recorded by COURTSMART.) (KAH) [4:11-mj-07264-CRP-HCE] (Entered:
09/3012011)
Minute Entry for proceedings held before Magistrate Judge Jacqueline J
Marshall: Attorney AppointmentlDetention Hearing as to Herbert Franklin
Vanegas-Ortiz held on 10/3/2011, Preliminary Hearing waived. Added
attorney Erica Leigh Seger for USA, Mark Francis Willimann (CJA) for
Herbert Franklin Vanegas-Ortiz. Magistrate referral is Judge Estrada.
(Recorded by COURTSMART.)(KAH) [4:11-mj-07264-CRP-HCE] (Entered:
10105/2011)
ORDER OF DETENTION as to Herbert Franklin Vanegas-Ortiz. Signed by
Magistrate Judge Jacqueline J Marshall on 10/3/11.(KAH) [4:11-mj-07264-
CRP-HCE] (Entered: 10105/2011)
INDICTMENT as to Herbert Franklin Vanegas-Ortiz (1) count(s) 1.
Arraignment set for 11110/2011 at 11 :00 AM before Magistrate Judge
Jacqueline J l'vlarshall. (SMBE) (Entered: 10/27/2011)
***NOTICE as to Herbert Franklin Vanegas-Ortiz: Counsel is advised as to
ARRAIGNMENT set for 11110/2011 @ 11:00 AM, TRIAL date is 12/20/2011
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App. 3
CMIECF - azd Page 3 of6
@ 9:30 AM, and PLEA DEADLINE is 12/2/2011. NOTE: Notice ofIntent to
Waive Defendants Presence at Arraignment shall be filed no later than
Tuesday prior to arraignment. (SMBE) (Entered: 10/27/2011)
1110812011 7 NOTICE OF INTENT TO FILE WAIVER of Defendant's Appearance At
Arraignment by Herbert Franklin Vanegas-Ortiz fIled 11/8/2011. (Willimann,
Mark) (Entered: 11/08/2011)
1111012011 8 Minute Entry for proceedings held before Magistrate Judge Jacqueline J
Marshall: Arraignment as to Herbert Franklin Vanegas-Ortiz held on
11/10/2011. Defendant enters plea of NOT guilty to all pending counts.,
Defendant PRESENCE WAIVED. Form of Waiver of Personal Appearance at
Arraignment and Entry of Not Guilty Plea and Acknowledgment of Trial Date
and Plea Deadline have been filed. Defendant provided with copy of
indictment. Motion Hearing Date: All pretrial motions shall be fIled
sufficiently in advance of trial to avoid any delays in the trial pursuant to
LRCrim 47.1. It is the responsibility of counsel to contact the referred
Magistrate Judge to schedule a hearing on any motions requiring oral
argument. Any motion or stipulation to continue the scheduled trial date and
change of plea hearing deadline shall be filed with the Clerk of the Court no
later than 5 :00 p.m. on the Monday following the plea deadline.
Appearances: AUSA Kyle Healey, attorney on duty for the Government, CJA
Attorney Wanda Day for Mark Willimann for defendant. Defendant is not
present and in custody. Jury Trial set for 12/20/2011 at 9:30 AM before Judge
Raner C Collins. Plea deadline is 12/02111. (Recorded by COURTSMART.)
This is a TEXT ENTRY ONLY. There is no PDF document associated with
this entry. (ADI-CKS,) (Entered: 11115/2011)
11/10/2011
2
WAIVER OF DEFENDANT'S PRESENCE at Arraignment and
Acknowledgment of Trial Date by Herbert Franklin Vanegas-Ortiz filed
11/10/2011. (KAH) (Entered: 11/15/2011)
12/0112011 11 NOTICE OF CHANGE OF PLEA HEARING set for 12/2111 at 2:30 p.m. by
-
Herbert Franklin Vanegas-Ortiz (Willimann, Mark) (Entered: 12/01/2011)
12/0112011 12 Defense counsel having contacted the court, IT IS ORDERED as to Herbert
Franklin Vanegas-Ortiz, a Change of Plea Hearing is set for 12/2/2011 at 02:30
PM in Courtroom 3A, 405 West Congress Street, Tucson, AZ 85701 before
Magistrate Judge Hector C Estrada. Ordered by Magistrate Judge Hector C
Estrada.(HCE)(This is a TEXT ENTRY ONLY. There is no pdf document
associated with this entry.) (Entered: 12/01/2011)
12/02/2011 13 Minute Entry for proceedings held before Magistrate Judge Hector C Estrada:
Change of Plea Hearing as to Herbert Franklin Vanegas-Ortiz held on
12/2/2011. Herbert Franklin Vanegas-Ortiz enters plea of guilty to one-count
indictment. NO Plea Agreement filed. THE COURT ORDERS the trial
datelpending hearings VACATED. Pending motions and pending reports and
recommendations are rendered moot. Prior custody Ire lease orders are
AFFIRMED. The Court directs the US Probation Office to prepare a
Presentence Report.
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App. 4
CMIECF - azd Page 4 of6
Appearances: AUSA Erica Seger for the Government, CJA Attorney Mark
Willimann for defendant. Defendant is present and in custody. Spanish
Interpreter Ron Zellon assists defendant. Sentencing set for 2/1012012 at 09:45
AM before Judge Raner C Collins. (Recorded by COURTSMART.) This is a
TEXT ENTRY ONLY. There is no PDF document associated with this entry.
(SN) (Entered: 12/05/2011)
12102/2011 14 CONSENT OF DEFENDANT Herbert Franklin Vanegas-Ortiz AND ORDER
OF REFERRAL to Magistrate Judge Hector C. Estrada for entry of Guilty
Plea. Signed by Judge Raner C Collins on 12/2111.(KAH) (Entered:
12/05/2011)
12/05/2011 15 MAGISTRATE JUDGE FINDINGS & RECOMMENDATIONS UPON A
PLEA OF GUILTY as to Herbert Franklin Vanegas-Ortiz. Signed by
Magistrate Judge Hector C Estrada on 12/6111.(KAH) (Entered: 12/05/2011)
12/06/2011 16 NOTICE Of Filing Of Defendant'S Prior Crime of Violence
Conviction/Judicially Noticeable Documents by USA as to Herbert Franklin
Vanegas-Ortiz (Attachments: # 1 Exhibit, # l Supplement)(Seger, Erica)
(Entered: 12/06/2011)
12/09/2011 17 NOTICE of Intent Not to Move for 3rd Point by USA as to Herbert Franklin
Vanegas-Ortiz (Seger, Erica) (Entered: 12/09/2011)
12/20/2011 18 The District Court has reviewed the Findings and Recommendations of the
Magistrate Judge 12. and no objection have been filed. Therefore, IT IS
ORDERED that the Findings and Recommendation of the Magistrate Judge are
adopted and this Court accepts defendant's PLEA OF GUILTY as to Herbert
Franklin Vanega -Ortiz. Ordered by Judge Raner C Collins.(CLB)(This is a
TEXT ENTRY ONLY. There is no pdf document associated with this entry.)
(Entered: 12/2012011)
01119/2012
.12
NOTICE Of Filing Of Defendant'S Prior rime Conviction/Judicially
Noticeable Documents by USA as to Herbert Franklin Vanegas-Ortiz
(Attachments: # 1 Exhibit, # l Supplement)(Seger Erica) (Entered:
01119/2012)
02/08/2012 20 First MOTION to Continue Sentencing currently scheduledfor 2/10/12 at 9:45
by Herbert Franklin Vanegas-Ortiz. (Willimann, Mark) (Entered: 02/08/2012)
02/08/2012 21 MINUTE ORDER: Motion to Continue Sentencing 20 filed by Herbert
Franklin Vanegas-Ortiz is GRANTED. Sentencing is continued to MARCH 9,
2012 AT 9:30 AM before Judge Raner C. Collins. ***NOTE TO
COUNSEL:*** The Court notes this is the first motion to continue
Sentencing. In the event more than two motions to continue Sentencing are
filed, this Court will set a Status Conference. This is a TEXT ENTRY ONLY.
There is no PDF document associated with this entry. (SFuller) (Entered:
02/08/2012)
03/08/2012 22 SENTENCING MEMORAl-\lDUM by Herbert franldin Vanegas-Ortiz
(Attachments: # 1 Exhibit Change of Plea Transcript)(Willimann, Mark)
(Entered: 03/08/2012)
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CMlECF - azd Page 5 of6
03/0912012 23 Minute Entry - Sentencing as to Herbert Franklin Vanegas-Ortiz held on
31912012 before Judge Daniel L Hovland: Sentence imposed. Judgment to
issue.,
Appearances: AUSA Erica Seger for the Government, CJA Attorney Mark
Willimann for defendant. Defendant is present and in custody. Spanish
Interpreter Juan Radillo assists defendant. (Court Reporter Sandra
Ehrmantraut.) This is a TEXT ENTRY ONLY. There is no PDF document
associated with this entry. (MME for Linda Reis) (Entered: 03/09/2012)
03/09/2012 24 JUDGMENT AND COMMITMENT ISSUED as to Herbert Franklin Vanegas-
Ortiz, defendant committed to BOP for a term of FORTY ONE (41)
MONTHS, with credit for time served; upon release, defendant shall be placed
on supervised release for a term of ONE (1) YEAR; Special Assessment:
$100.00. Signed by Judge Daniel L Hovland on 03/09112.(ESL) (Entered:
03/09/2012)
0311712012 25 NOTICE OF APPEAL by Herbert Franklin Vanegas-Ortiz (Willimann, Mark)
(Entered: 03117/2012)
03119/20] 2 26 USCA Case Number for I ~ Notice of Appeal to 9th Circuit as to Herbert
Franklin Vanegas-Ortiz: Case no 12-10135, 9th Circuit Court of Appeals.
(BAC) (Entered: 03/2112012)
03/19/2012 27 TIME SCHEDULE ORDER of USC A (certified copy) as to Herbert Franklin
-
Vanegas-Ortiz re 25 Notice of Appeal to 9th Circuit. (BAC) (Entered:
03/2112012)
04/1112012 28 TRANSCRIPT REQUEST by Herbert Franklin Vanegas-Ortiz for proceedings
held on 12/2111 & 319/12 before Judge Estrada and Judge Hovland, re 25
Notice of Appeal to 9th Circuit. (Willimann, Mark) (Entered: 0411112012)
04118/2012 30 TRANSCRIPT of PLEA HEARING as to Herbert Franklin Vanegas-Ortiz for
date of 12/02/2011 before Judge Hector C. Estrada, re 25 Notice of Appeal to
9th Circuit Transcriber Elaine Cropper. Transcript may be viewed at the court
public terminal or purchased through the Transcriber before the deadline for
Release of Transcript Restriction. After that date it may be obtained through
PACER. Redaction Request due 51912012. Redacted Transcript Deadline set
for 5/2112012. Release of Transcript Restriction set for 7/17/2012. (SGG)
(Entered: 04118/2012)
04/20/2012 31 TRANSCRIPT of SENTENCING as to Herbert Franklin Vanegas-Ortiz for
date of 03109/2012 before Judge Daniel L. Hovland, re 25 Notice of Appeal to
9th Circuit Court Reporter Sandra E. Ehrmantraut. Transcript may be viewed
at the court public terminal or purchased through the Court Reporter before the
deadline for Release of Transcript Restriction. After that date it may be
obtained through PACER. Redaction Request due 5/11/2012. Redacted
Transcript Deadline set for 5/2112012. Release of Transcript Restriction set for
7119/2012. (SGG) (Entered: 04/20/2012)
1:=1 =====P=A=C=E=R=s=e=rv=ic=e=c=e=n=te=r======:11
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I
Transaction Receipt
I
I
10/311201206:46:20
I
IPACER
,Login:
IIfp0075 IIClient Code:
I
I/DescriPtion:

Report

Criteria:
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https:llecf,azd.uscourts,gov/cgi-binIDktRpt.pl?110400873105597-L_1_0-1 10/3112012
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Case 4:11-cr-03664-RCC-HCE Document 17 Filed 12/09/11 Page 1 of 2
1 ANN BIRMINGHAM SCHEEL
Acting United States Attorney
2 District of Arizona
ERICA L. SEGER
3 Special Assistant United States Attorney
State Bar No. 022681
4 405 West Congress, Suite 4800
Tucson, Arizona 85701-5040
5 Telephone: (520) 620-7300
Email: erica.seger@usdoj.gov
6 Attorneys for Plaintiff
7 UNITED STATES DISTRICT COURT
8 DISTRICT OF ARIZONA
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UNITED STATES OF AMERICA,
Plaintiff,
v.
HERBERT VANEGAS-ORTIZ,
Defendant.
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CR-1l-3664-TUC-RCC
GOVERNMENT'S NOTICE OF
INTENT NOT TO MOVE FOR THIRD-
POINT REDUCTION UNDER U .S.S.G.
3E1.1(b)
Plaintiff, United States of America, by and through its attorneys, ANN
BIRMINGHAM SCHEEL, Acting United States Attorney for the District of Arizona, and
Erica L. Seger, Special Assistant United States Attorney, hereby notifies the court of the
Government's intent not to move for the additional, third-level reduction for acceptance of
responsibility, pursuant to U.S.S.G. 3E1.1(b) for the following reasons:
This was a fast-track immigration case in which the defendant rejected the
Government's early-disposition plea offer and ultimately plead guilty to the Indictment
without benefit of a plea agreement. As a result, the defendant is not bound by a traditional
plea agreement and is free to argue for downward departure, reduction of the sentencing
guideline calculations, and any other available reductions normally outside the range of a
joint, written plea agreement. The defendant may also fully appeal his conviction and
sentence at any time, collaterally attack his conviction and sentence, and/or contest the
reinstatement of his prior removal order. By not waiving these challenges via a traditional
plea agreement, the United States cannot justify a "third-point" reduction.
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Case 4:11-cr-03664-RCC-HCE Document 17 Filed 12/09/11 Page 2 of 2
The Government ' s interest in conserving its pro sec li to rial resources in a district with
excepti onally large numbers of immigration cases has not been preserved when a defendant
chooses to rej ect a pica agreement that would otherwise incorporate the aforementioned
waivers. See United Stat es v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009) C'Accordingly,
the issue before us is whether the allocation and expenditure of prosccutorial resources for
the purposes of defend ing an appeal is a rational bas,is for declining to move for th e third
reduct ion point. We hold that it is."); See United Slales v. Medil/a-Beltra", 542 F .3d 729 (9'"
Cir. 2008) (specifica ll y holding that the absence of waiving traditionally-broad appea l ri ghts
was grounds for not awarding a third-point reduction). More recent unpublished decisions
by the Ninth Circui t show that the absence of appell ate waivers contin ues to be a proper basis
for withholding the third -point reduction. See, United States v. Pella-Segura, 20 10 WL
1583334 (9th Cir. Apri l 2 1, 2010) (unpublished) (" Pena- Segura also contends that the
Government acted arbitrarily by declining to request an addit ional one-l evel reduct ion
pursuant to U.S.S.G. 3E I.I (b) because Pena-Segura did not accept a plea offer. Thi s
content ion lacks merit.") ; United Stat es v. Miller, 20 10 WL 675293 (9th Cir. Feb. 25, 20 I 0)
(unpublished) ("We have conclusively determined that a defendant who fails to waive her
right to appeal justifies the failu re to request the reducti on.") (both citing Medina-Beltran).
Therefore, the Un ited States hereby notifies the Court and the defendant that it does
not intend to make a motion for a third - level reduct ion in th is case.
RESPECTFULLY SUBM ITTED thi s 9th day of December, 20 II.
ANN BIRMI NGHAM SCHEEL
Act ing United States Attorney
Di strict of Ari zona
/ S/ Erica L. Seger
ERl CA L. SEGER
Special Assistant Un ited States Anorney
Copy of the foregoing has been sent electronically
or by other means on lhis 9'" day of December, 201 1 to:
Mark Witl iman, Esq.
App. 9
APPENDIX OF CASES
Ninth Circuit cases in which defendants timely notified the government of an
intent to plead guilty but were denied the one-level reduction for acceptance
of responsibility under 3E1.1(b).
United States v. Sanchez-Ramirez, 11-30170,2012 WL 3198530, at *2 (9th Cir.
Aug. 8,2012) (holding that defendant's argument that his refusal to waive
appellate rights is not valid basis for government's failure to move for reduction
was foreclosed by United States v. Johnson, 581 F.3d 994, 1003-1004 (9th Cir.
2009))
United States v. Alvarado, 478 F. App'x 473, No. 11-10622,2012 WL 4044523,
at *1 (9th Cir. Sept. 10,2012) (reservation of right to appeal is appropriate basis
for denial of 3E1.1(b) reduction).
United States v. Sharpton, 474 F. App'x 541 (9th Cir. 2012) (rejecting defendant's
argument "that the government's refusal to move for the third point was arbitrary
in light of the fact that the plea offer that Sharpton rejected would have permitted
an appeal").
United States v. Rivas-Meneses, 477 F. App'x 458 (9th Cir. 2012) (upholding
denial of 3E1.1(b) reduction for defendant's "refusal to waive his right to
appeal").
United States v. Chavez-Torres, 473 F. App'x 605 (9th Cir. 2012) ("[Defendant]
contends that the district court erred by not granting an additional one-level
reduction for acceptance of responsibility. This contention lacks merit.") (citing
Johnson, 581 F.3d at 1003-04).
United States v. Magana, 476 F. App'x 114, 116 (9th Cir. 2012) ("[The]
Government would not move for a one-level reduction because Magana had not
waived his right to appeal when he pled guilty.").
United States v. Jimenez, 470 F. App'x 680, 681 (9th Cir. 2012) ("failure to waive
... right to appeal" is proper basis for not moving for reduction).
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United States v. Zamudio-Gomez, 469 F. App'x 535 (9th Cir. 2012) (government
did not act arbitrarily in refusing to move for reduction under 3E1.1(b) when
defendant refused to waive right to appeal).
United States v. Meza-Gutierrez, 468 F. App'x 802, 803 (9th Cir. 2012) ("[T]he
government's refusal to move for the additional one-level reduction was justified
because Meza-Gutierrez refused to waive his appellate rights. ").
United States v. Duarte-Sabori, 466 F. App'x 580,581 (9th Cir. 2012) (refusal to
waive appellate rights was a "rational basis" for government to refuse to move for
reduction under 3E1.1(b)) (citing Johnson, 581 F.3d at 1002-04).
United States v. Shigley, 451 F. App'x 705 (9th Cir. 2011) (same as above).
United States v. Machado-Medina, 401 F. App'x 202 (9th Cir. 2010) ("[T]he
government may, in its discretion, refuse to request a reduction under U.S.S.G.
3E1.1(b) based on a defendant's refusal to waive his or her appeal rights.").
United States v. Yeste, 399 F. App'x 309,310 (9th Cir. 2010) ("[T]he government
declined to move for the extra reduction because it would need to expend
prosecutorial resources as Yeste had rejected a plea agreement.") (citing Johnson,
581 F.3d at 1002-04).
United States v. Pena-Segura, 377 F. App'x 605 (9th Cir. 2010) ("[T]he
Government ... declin[ ed] to request an additional one-level reduction pursuant to
U.S.S.G. 3E1.1(b) because Pena-Segura did not accept a plea offer.").
United States v. Miller, 367 F. App'x 807,808 (9th Cir. 2010), as amended on
denial ofreh'g June 11,2010 ("[A] defendant who fails to waive her right to
appeal justifies the failure to request the reduction.").
United States v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009) ("The government
did not file a 3E1.1(b) motion for the third-level reduction, citing Johnson's
stated intention to appeal the suppression order.").
United States v. Contreras-Bracamonte, 338 F. App'x 620,622 (9th Cir. 2009)
(government allowed to deny reduction "where the defendant pled guilty and
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avoided a trial on the substantive offense, but he objected to his sentencing
enhancement and rejected the government's proposed appeal waiver") (quoting
United States v. Medina-Beltran, 542 F .3d 729, 731 (9th Cir.2008) (per curiam)) .
United States v. Medina-Beltran, 542 F.3d 729, 731 (9th Cir. 2008) (upholding
government's decision not to move for reduction when defendant objected to
sentencing enhancement and rejected appeal waiver).
Note that this list does not include the district court cases in which the defendant
agreed to adverse conditions in a plea agreement - including waiver of guideline
arguments, waiver of the right to present evidence at sentencing, or waiver of the
right to appeal- in exchange for the government's motion under 3E.l.l(b), as those
cases result in no litigated opinion.
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CERTIFICATE OF SERVICE
I hereby certify that on November 1, 2012, I electronically filed the
foregoing Brief of Amici Curiae Ninth Circuit Federal Public and Community
Defenders and the National Association of Criminal Defense Lawyers in Support
of Defendant-Appellants Petition for Rehearing En Banc with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
/s/ Lisa Powell
Lisa Powell
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