Federal criminal defendants can receive a reduction in their advisory guideline sentence for accepting responsibility for their actions.[1]

The reduction can be two or three points, depending on the defendant's level of cooperation. As each point under the U.S. Federal Sentencing Guidelines represents three to six months of incarceration, this reduction can be significant in the court's fashioning of the ultimate sentence.

However, in cases where the statutory maximum exceeds the guidelines, the defendant who accepts responsibility will not receive the full benefit of that sentencing reduction unless the court applies a downward departure or a sentencing variance.

This article addresses an argument that defense counsel should make to decrease the prison sentence for a defendant who faces a statutory cap by arguing in favor of receiving the full benefit of an acceptance-of-responsibility reduction.

This argument is based on case law developed in the U.S. Court of Appeals for the Eleventh Circuit, through U.S. v. Rodriguez[2] and its progeny, and we found it effective in a case we recently worked on, U.S. v. Berkman.[3]

Pursuant to the U.S. Supreme Court's 2005 decision in U.S. v. Booker,[4] a district court is permitted to impose a discretionary sentence after consideration of the advisory guidelines, the grounds raised by counsel, the defendant's allocution, victim statements, other evidence and the factors set forth in Title 18 of the U.S. Code, Section 3553(a).

In a pre-Booker case that is still relevant, U.S. v. Rodriguez, the Eleventh Circuit in 1995 recognized that a defendant would not receive the benefit of a full acceptance-of-responsibility reduction when facing a statutory cap unless the trial court granted a sentencing departure.

In Rodriguez, the defendant served as the transportation broker in a cocaine and marijuana importation operation. The defendant's guideline offense level, before any reduction for acceptance of responsibility, was 36.

A guideline level of 36 represents a then-mandatory guideline of between 188-235 months imprisonment. After applying acceptance, the low end of the defendant's applicable guideline range was 135 months. However, the reduced guideline range after applying the acceptance of responsibility still exceeded the statutory maximum sentence by 39 months.[5]

The defendant moved for a downward departure, asserting that the court should apply the three-level reduction for acceptance of responsibility to the maximum statutory level — 96 months — rather than the offense advisory sentencing guideline level, i.e., 135-168 months.

While the U.S. District Court for the Southern District of Florida agreed that applying the reduction from the offense guidelines provided no meaningful benefit to the defendant for his acceptance of responsibility, equating it to "giving away snow in the winter time," the court felt compelled to deny the request for a downward departure and impose the maximum sentence of 96 months imprisonment.[6]

On appeal, the Eleventh Circuit reversed and held that a sentencing court was authorized to grant a downward departure for acceptance of responsibility from an advisory guideline sentence calculated using the statutory maximum sentence.

The court held that such a reduction in offense level is consistent with the sentencing guidelines and "suggests that the [Sentencing] Commission contemplated that a defendant always would receive some benefit at sentencing for accepting responsibility for his conduct."[7]

Since Rodriguez, and post-Booker, district courts within the Eleventh Circuit have varied downward from the advisory guidelines in similar circumstances, to effectuate a meaningful reduction for acceptance of responsibility.[8]

U.S. v. Berkman is the most recent of these cases, and it is instructive. The case was a multidefendant prosecution for violations of the Foreign Corrupt Practices Act and international money laundering, wherein the four cooperating defendants faced sentencing with a less-than-meaningful reduction for acceptance of responsibility because of the sentencing caps that were applied to each defendant.

The defendant that we represented faced an advisory guideline of 121-151 months, after a three-point reduction for acceptance of responsibility, with a sentencing cap of 120 months.

The defendant could not have been sentenced in excess of 120 months even if he had not accepted responsibility. Thus, the one-month benefit was not a meaningful benefit.

Without a Rodriguez variance, the defendant would have clearly received no meaningful reduction in his sentence in return for his acceptance of responsibility. We argued that the sentencing court should grant a Rodriguez variance and reduce the advisory guidelines to 78-97 months, after applying the three-point reduction.

The government's position in arguing against Rodriguez was that because of the statutory cap, the defendant was already receiving a lower sentence than the guidelines would have yielded, and thus accepting responsibility would not constitute a mitigating circumstance justifying an even further decrease in a sentence.

However, the Southern District of Florida applied Rodriguez as a variance for the defendant as well as the other three co-defendants, and thus began its ultimate Section 3553 sentencing analysis with a much lower advisory guideline than without the Rodriguez variance.[9]

While the U.S. Court of Appeals for the Ninth Circuit, and a district court in the Seventh Circuit, have also held that a district court has the discretion to reward a defendant's acceptance of responsibility by departing downward when Section 5G1.1(a) renders Section 3E1.1 ineffectual in reducing the defendant's actual sentence, the U.S. Court of Appeals for the Fourth Circuit disagrees with that reduction.[10]

Therefore, it is important that defense counsel present to the sentencing court a compelling argument showing the unfairness caused by the lack of a meaningful reduction for acceptance of responsibility when a defendant is facing a guideline that exceeds a statutory cap. Rodriguez, and these recent decisions, will support such a request.

Joseph A. DeMaria and Marissa Koblitz Kingman are partners at Fox Rothschild LLP.

Disclosure: DeMaria and Kingman represented Luis Berkman in United States v. Berkman.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See Sentencing Guideline 3E1.1.

[2] United States v. Rodriguez , 64. F. 3d 638 (11th Cir. 1995).

[3] United States v. Berkman , Case No. 21-cr-60258-Huck, U.S. District Court for the Southern District of Florida (Sentencing June 9, 2022).

[4] United States v. Booker , 543 U.S. 220 (2005).

[5] The statutory maximum sentence for each violation was four years (48 months). Guideline U.S.S.G. § 5G1.1(a) provides that "[w]here the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence." Thus, the guideline sentence on each count was adjusted to 48 months, the statutory maximum. Because the sentence on the count carrying the highest statutory maximum (48 months) was less than the total punishment prescribed by the guidelines (135 to 168 months), the Probation Department's Pre-Sentence Report concluded that Rodriguez's sentences on the two counts should run consecutively, see U.S.S.G. § 5G1.2(d), for a total of 96 months. Rodriguez, 64 F. 3d at 640.

[6] Rodriguez, 64 F. 3d at 641.

[7] Id.

[8] See e.g., United States v. Evelio Suarez, No. 18-cr-20669-Scola (S.D. Fla. December 20, 2019); United States v. William Corte, No. 11-cr-60123- Dimitrouleas (S.D. Fla., Sept. 28, 2011); United States v. Gladstone, No. 10-cr-60195-Dimitrouleas (S.D. Fla. June 2, 2011); United States v. Steven Sanders, No. 16-cr-20572- Altonaga (S.D. Fla. Feb. 17, 2017); and United States v. Jose Luis De La Paz Roman, No. 19-20004-cr-Cooke (S.D. Fla. April 12, 2019).

[9] As Rodriguez was a pre-Booker decision, the reduction was applied as a downward departure, while in the post-Booker era, the reduction is usually applied as a downward variance.

[10] See United States v. Chavez , 94 F. App'x 621 (9th Cir. 2004); United States v. Jones , 233 F. Supp. 2d 1067, 1075 (E.D. Wis. 2002). But see United States v. Fuentes , 51 F. App'x 378, 379 (4th Cir. 2002) ("The reasoning in Rodriguez has not been adopted in this Circuit."). This, while the 11th and 9th circuits held that a district court has the discretion to reward a defendant's acceptance of responsibility by departing downward when section 5G1.1(a) renders section 3E1.1 ineffectual in reducing the defendant's actual sentence, the 4th Circuit has not. The government's position in arguing against Rodriguez is usually that because of the statutory cap, the defendant is already receiving a lower sentence than the guidelines would have yielded and thus accepting responsibility would not constitute a mitigating circumstance justifying an even further decrease in a sentence. Further, it can be argued that any downward adjustments must be made from the total of the base offense level, even if the result negates the effect of the defendant's acceptance of responsibility.

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