United States v. Divens, No. 09-4967 (4th Cir. 2011)
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Defendant pled guilty to possession with intent to distribute cocaine where he signed an acceptance of responsibility statement but declined to sign a plea agreement waiving certain rights to appellate review and collateral attack. Solely because defendant would not waive these rights, the government refused to move for an additional one-level reduction for acceptance of responsibility under U.S.S.G. 3E1.1(b). Defendant appealed, challenging the district court's failure to compel the government to move for the U.S.S.G. 3E1.1(b) reduction. The court held that the government retained discretion to refuse to move for an additional one-level reduction, but only on the basis of an interest recognized by the guidelines itself. Therefore, the court vacated defendant's sentence and remanded for further proceedings. The court held that, if the government could not provide a valid reason for refusing to move for an additional one-level enhancement reduction under U.S.S.G. 3E1.1(b) and continued to refuse to move for such a reduction, the district should order the government to file the motion.
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