United States v. Julio Jimenez ( 2012 )


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  •                                                                            FILED
    CORRECTED March 8, 2012 õ,õõ                         MAR 05 2012
    MOLLY C. DWYER, CLERK
    NOT FOR PUBLICATION                           U.S . CO U RT OF AP PE A LS
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 11-50300
    Plaintiff - Appellee,              D.C. No. 3:11-cr-00604-MMA-1
    v.
    MEMORANDUM *
    JULIO HERNANDEZ JIMENEZ,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    Michael M. Anello, District Judge, Presiding
    Argued and Submitted February 14, 2012
    Pasadena, California
    Before: PREGERSON and BEA, Circuit Judges, and PRATT, District Judge.** õ
    Julio Jimenez appeals the district court's imposition of a twenty-month
    custodial sentence for his conviction of being a deported alien in the United States
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Robert W. Pratt, District Judge for the U.S. District
    Court for Southern Iowa, sitting by designation.
    in violation of 8 U.S.C. y 1326. The parties are familiar with the facts underlying
    the appeal and thus we do not include them here.
    Jimenez challenges his sentence of twenty months in custody for a
    conviction of being a deported alien found in the United States. He pleaded guilty
    unconditionally, and received a two-level sentencing reduction under United States
    Sentencing Guidelines (USSG) y 3E1.1(a). Jimenez argues on appeal that the
    government was required to move for a third one-level sentencing reduction under
    USSG y 3E1.1(b), because Jimenez's failure to waive his right to appeal his
    sentence was an illegitimate and therefore arbitrary basis to refuse to move for the
    additional reduction. This argument is foreclosed by United States v. Medina-
    Beltran, 
    542 F.3d 729
    , 731 (9th Cir. 2008), and United States v. Johnson 
    581 F.3d 994
    , 1002 (9th Cir. 2009).
    AFFIRMED.
    FILED
    United States v. Jimenez, No. 11-50300                                                   MAR 05 2012
    Pratt, District Judge, Concurringõõ                                                 MOLLY C. DWYER, CLERK
    U.S . CO U RT OF AP PE A LS
    I concur that, under United States v. Medina-Beltran, 
    542 F.3d 729
    , 731 (9th Cir. 2008),
    the government's decision not to move for an additional one-level sentence reduction pursuant to
    United States Sentencing Guidelines y 3E1.1(b) because Jiminez did not waive his right to
    appeal his sentence, was not arbitrary. I write separately to voice my disagreement with the
    discretion afforded to the government in deciding whether to move for an additional one-level
    sentence reduction under y 3E1.1(b) by this Court's decisions in Medina-Beltran, United States
    v. Johnson, 
    581 F.3d 994
    , 1002-07 (9th Cir. 2009) and United States v. Espinoza-Cano, 
    456 F.3d 1126
    , 1135-1137 (9th Cir. 2006).
    A defendant who clearly demonstrates acceptance of responsibility for the offense and
    who, prior to any reduction for such acceptance, has an offense level of sixteen or greater, is
    eligible for a one-level reduction 'upon motion of the government 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. y 3E1.1(b). This Court has determined that the government may withhold
    filing a motion for a one-level reduction under y 3E1.1 when a defendant refuses to waive his
    right to appeal his sentence because '[w]hen y 3E1.1(b) speaµs of conserving government
    resources in the 'prosecution' of the defendant's 'misconduct,' it means more than simply trial
    preparation. 'Prosecution' is commonly understood to encompass the entirety of the criminal
    proceedings in a particular case until judgment is final and certain.' Johnson, 
    581 F.3d at 1002
    .
    With due respect to the previous panels who have interpreted y 3E1.1(b) in this manner, I do not
    read y 3E1.1(b) so broadly.
    Instead, I find that the plain language of y 3E1.1(b), as well as the relevant application
    notes, indicate that the guideline is concerned with the efficient allocation of trial--not
    appellate--resources. Specifically, the guideline requires that the government state in its motion
    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.' (emphasis added).
    While there are numerous ways in which a defendant might aid in the investigation or
    prosecution of his own misconduct, pleading guilty in a timely manner is the only action
    contemplated by the guideline that would warrant a one-level reduction. Stated otherwise, entry
    of a timely guilty plea is the only action required of a defendant to qualify for a one-level
    reduction. See United States v. Divens, 
    650 F.3d 343
    , 348 (4th Cir. 2011) ('Certainly, 'timely'
    entry of a 'plea of guilty' does not require the execution of an appellate waiver; rather it entails
    only an unqualified 'confession of guilt in open court.'' (quoting Blacµ's Law Dictionary 1152
    (6th ed. 1990)); see also Johnson, 
    581 F.3d at 1008
     (Smith, J., concurring) ('[T]he section
    contemplates that the means by which the defendant both saves trial preparation and permits
    efficient resource allocation, is through a timely guilty plea.').
    Furthermore, while the guideline does require that a defendant's plea permit 'the
    government and court to allocate their resources efficiently,' this clause is relevant to the
    timeliness of the plea, not to whether the plea contains an appellate waiver. U.S.S.G. y 3E1.1(b).
    First, this phrase is immediately preceded by the text, 'thereby permitting the government to
    avoid preparing for trial.' 
    Id.
     Second, had Congress been concerned with appellate resources, it
    would not have limited its concern to the resources of a singular 'court,' but instead would have
    referred to the ability of 'courts' to efficiently allocate their resources. See Divens, 
    650 F.3d at 348
     ('Had Congress also intended to conserve appellate court resources, it would have referred
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    to 'courts,' not 'the court.'').
    Finally, the relevant application notes, which are binding on courts' guideline
    interpretations, offer further support that y 3E1.1(b) only addresses the allocation of trial
    resources. See United States v. Sarbia, 
    637 F.3d 1079
    , 1084 (9th Cir. 2004) ('[A]pplication
    notes are binding on the courts in their construction of the Sentencing Guidelines.').
    Specifically, the notes explains that to qualify for a reduction under y 3E1.1(b), the defendant
    must 'have 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. y 3E1.1(b) cmt. (n.6) (emphasis added). While the
    text of the guideline uses the ambiguous term 'prosecution,' the specific reference to trial
    preparation and the absence of any mention of the appeal process in these notes indicates that a
    defendant's plea must only permit the government to avoid allocating resources for trial
    preparation.
    This Court has previously noted that the Prosecutorial Remedies and Other Tools to End
    the Exploitation of Children Today Act of 2003 ('PROTECT Act'), Pub. L. No. 108-21, y
    401(g), 
    117 Stat. 650
    , 671-72 (2003), altered y 3B1.1(b) by maµing 'the third level reduction
    subject to the discretion of the government, rather than mandatory, upon a timely plea of
    guilty.'' Johnson, 
    581 F.3d at 105-06
     (quoting Espinoza-Cano, 
    456 F.3d at 1137
    ). While the
    PROTECT Act did transfer discretion from the trial court to the government by requiring a
    government motion as a prerequisite for granting a one-level reduction under y 3E1.1(b), I do
    not agree that it authorized the government to exercise this discretion for reasons unrelated to the
    timeliness of a plea. Instead, the purpose for the transfer of this discretion was simply to
    -3-
    recognize that the government is best situated to determine whether a plea is sufficiently timely
    to avoid trial preparations. See U.S.S.G. y 3E1.1(b), cmt. (n.6) ('Because the Government is in
    the best position to determine whether the defendant has assisted authorities in a manner that
    avoids preparing for trial, an adjustment under subsection (b) may only be granted upon a formal
    motion by the Government at the time of sentencing.')
    I do not dispute that the government has a legitimate interest in efficiently allocating the
    resources used in defending appeals. I simply do not believe that this legitimate governmental
    interest is within the discretion afforded the government in determining whether to move for a
    one-level reduction under y 3E1.1(b). Thus, were I writing on a blanµ slate, I would hold that
    the government acted arbitrarily by not moving for a one-level reduction under y 3E1.1 because
    Jiminez refused to waive his right to appeal his sentence.
    -4-