United States of America v.  LASHAWN DWAYNE DIVENS, a/k/a Lashawn Duwayne Divens

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4967 
LASHAWN DWAYNE DIVENS, a/k/a
Lashawn Duwayne Divens,
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph R. Goodwin, Chief District Judge.
(2:09-cr-00114-1)
Argued: March 25, 2011
Decided: July 5, 2011
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by published opinion. Judge Motz
wrote the opinion, in which Judge Gregory and Judge Shedd
joined.
COUNSEL
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, West Virginia, for Appel-
lant. Monica Lynn Dillon, OFFICE OF THE UNITED

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STATES ATTORNEY, Charleston, West Virginia, for Appel-
lee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, Lex A. Coleman, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, Charleston, West
Virginia, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Lashawn Dwayne Divens pled guilty to possession with
intent to distribute cocaine. Divens signed an acceptance of
responsibility statement but declined to sign a plea agreement
waiving certain rights to appellate review and collateral
attack. Solely because Divens 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). Divens appeals, challenging the district court’s
failure to compel the Government to move for the § 3E1.1(b)
reduction. For the reasons that follow, we vacate Divens’s
sentence and remand for further proceedings consistent with
this opinion.
I.
On May 6, 2009, a federal grand jury charged Divens with
one count of possession with intent to distribute crack
cocaine. On July 9, 2009, the Government offered Divens a
plea agreement barring him from appealing any sentence that
did not exceed the Guidelines range and from mounting any
collateral attack not based on ineffective assistance of coun-
sel. Divens declined to sign that agreement, but he filed a
motion the very next day notifying the district court of his
intention to plead guilty. He also signed an "acceptance of
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responsibility statement" admitting his guilt of the charged
crime and expressing remorse.
On July 21, 2009, Divens pled guilty without benefit of a
plea agreement. The probation officer prepared a presentence
report explaining that Divens had timely notified the Govern-
ment of his intent to plead guilty and recommending the
award of a two-level reduction for acceptance of responsibil-
ity pursuant to U.S.S.G. § 3E1.1(a). The probation officer
noted, however, that because Divens had rejected the Govern-
ment’s plea agreement, the Government would likely not
move for an additional one-level reduction under § 3E1.1(b).
Accordingly, the probation officer suggested a Guidelines cal-
culation that did not include the additional one-level reduc-
tion. Divens objected to this calculation, arguing that he was
entitled to the additional one-level reduction. In doing so, he
acknowledged that the district court could award the reduction
only on the Government’s motion; he argued, however, that
his unwillingness to execute the appellate waiver did not jus-
tify the Government’s refusal to file such a motion.
At the sentencing hearing, the Government contended that
its refusal to move for the additional reduction was "rationally
related to the purposes of the guidelines" because it allowed
the Government to avoid defense of "a complete appeal" and
"allocate its resources to other matters." The district court
overruled Divens’s objection, concluding that the decision as
to whether to move for an additional one-level reduction lay
"completely in the discretion of the Government." The court
then adopted the probation officer’s suggested Guidelines
range of 41 to 51 months’ imprisonment, departed downward,
and imposed a sentence of 36 months’ imprisonment. Divens
noted a timely appeal.
II.
Section 3E1.1(a) of the Guidelines provides for a two-level
decrease in a defendant’s offense level if he "clearly demon-
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strates acceptance of responsibility for his offense." The very
next subsection provides that:
If the defendant qualifies for a decrease under sub-
section (a), the offense level determined prior to the
operation of subsection (a) is level 16 or greater, and
upon motion of the government stating that the
defendant has assisted authorities in the investigation
or prosecution of his own misconduct by timely noti-
fying 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,
decrease the offense level by 1 additional level.
U.S.S.G. § 3E1.1(b). The district court awarded Divens the
two-level reduction under § 3E1.1(a), but because the Gov-
ernment refused to file a motion under § 3E1.1(b), the court
did not award Divens the additional one-level reduction pro-
vided by that subsection. The Government makes no claim
that Divens does not qualify for a decrease under subsection
(a) or that his offense level is less than 16. Nor does the Gov-
ernment contend that Divens failed to "timely" provide notice
of his intention to plead guilty. Thus, the Government’s sole
contention is that Divens’s failure to sign the appellate waiver
justifies the Government’s refusal to move for the additional
one-level reduction under § 3E1.1(b).
A.
Although § 3E1.1(b) provides for an additional one-level
reduction "upon motion of the government," the Government
itself recognizes that its discretion to act is limited. See
Appellee’s Br. at 8. Relying on Wade v. United States, 504
U.S. 181 (1992), the Government acknowledges that it may
not exercise its discretion "arbitrarily or irrationally or base[d]
. . . on an unconstitutional motive." Appellee’s Br. at 8.
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In Wade, the Supreme Court interpreted a different Guide-
lines provision, § 5K1.1, that allows for a downward depar-
ture "[u]pon motion of the government" stating that the
defendant has provided substantial assistance. 504 U.S. at
185. Although the Wade Court held that § 5K1.1 granted the
Government a "power, not a duty, to file a motion," it also
recognized that district courts could order the Government to
file a motion if the "refusal to move was not rationally related
to any legitimate Government end." Id. at 185-86. We have
interpreted Wade as permitting the Government to refuse to
file a substantial assistance motion under § 5K1.1 so long as
it provides any legitimate reason, even one unrelated to the
defendant’s "substantial assistance." See United States v. But-
ler, 272 F.3d 683, 687 (4th Cir. 2001).
If the standard developed in Wade and Butler governing
§ 5K1.1 reductions were to control cases like this one, involv-
ing § 3E1.1(b) reductions, Divens could not prevail. See
United States v. Wiggins, 905 F.2d 51, 53-54 (4th Cir. 1990)
(recognizing legitimacy of appellate waivers). But we have
left this question open, see United States v. Chase, 466 F.3d
310, 314 n.2 (4th Cir. 2006), and the Government never
explicitly argues that the standard developed in Wade and
Butler governs § 3E1.1(b) reductions. Examination of the
Guidelines commentary explains why—the commentary ren-
ders such an argument untenable.
Of course, § 3E1.1(b), like § 5K1.1, conditions any reduc-
tion on a "motion of the government." In its commentary,
however, the Sentencing Commission clarified that although
the Government’s motion is necessary, the decision to file
such a motion under § 3E1.1(b) involves far less expansive
governmental discretion than under § 5K1.1. Specifically, the
application commentary to § 3E1.1 (but not to § 5K1.1)
explains that "[s]ubsection (b) provides an additional 1-level
decrease in offense level for a defendant . . . who has assisted
authorities in the investigation or prosecution of his own mis-
conduct by taking the steps set forth in subsection (b)." Id.
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cmt. 6 (emphasis added). The background commentary to
§ 3E1.1 (again there is no analogue in § 5K1.1) adds that
"[s]uch a defendant has accepted responsibility in a way that
ensures the certainty of his just punishment in a timely man-
ner, thereby appropriately meriting an additional reduction."
(emphasis added). Both of these comments indicate that the
Government does not possess the wide discretion afforded by
§ 5K1.1 in deciding whether to move for the additional one-
level reduction provided in § 3E1.1(b).1
This is not to say that the Government enjoys no discretion.
To the contrary, Congress expressly clarified that "[b]ecause
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." Id. cmt. 6 (added by Congress in
PROTECT Act, Pub. L. No. 108-21, § 401(g)). This sentence,
the sixth in comment 6, makes plain that in deciding whether
to file this "formal motion," the Government retains discretion
to determine whether the defendant’s assistance has relieved
it of preparing for trial. But the second sentence in the same
comment, as well as the background commentary that imme-
diately follows, clarify that once the Government has exer-
cised that discretion and determined that a defendant has in
1We recognize that these portions of the commentary originally accom-
panied a version of § 3E1.1(b) that lacked the current requirement of a
governmental motion. See U.S.S.G. § 3E1.1(b) (2002). And unlike that
requirement, which Congress in 2003 inserted into the Guidelines, see
PROTECT Act, Pub. L. No. 108-21, § 401(g) (2003), the mandatory lan-
guage was drafted by the Sentencing Commission. But neither fact weak-
ens the commentary’s persuasive force, because Congress has delegated
to the Commission the authority to interpret the Guidelines, and Commis-
sion commentary binds us "even though it is not reviewed by Congress."
Stinson v. United States, 508 U.S. 36, 46 (1993). Indeed, Congress’s deci-
sion to amend the commentary in 2003 but leave intact the existing man-
datory language provides additional evidence of congressional approval of
that mandatory language. See Nat’l Cable & Telecomms. Ass’n v. Brand
X Internet Serv., 545 U.S. 967, 992-93 (2005).
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fact alleviated the burden of trial preparation, the defendant
merits an additional reduction. Thus, both of those comments
speak in mandatory terms. The second sentence declares that
§ 3E1.1(b) "provides" the reduction "for a defendant" who
meets the specified criteria. The background commentary
emphasizes that "[s]uch a defendant" (one who meets the
specified criteria) "merit[s]" the reduction. Accordingly, once
the Government has determined that a defendant has "tak[en]
the steps specified in subsection (b)," he becomes entitled to
the reduction.
The lack of any similar commentary to § 5K1.1 disposes of
any argument that the Wade-Butler standard governs
§ 3E1.1(b) cases. See United States v. Hood, 628 F.3d 669,
672 (4th Cir. 2010) (relying on Guidelines commentary to dis-
tinguish two virtually identical textual provisions). For Guide-
lines commentary controls judicial interpretation of a
Guidelines provision unless the commentary is "inconsistent
with, or a plainly erroneous reading of" a guideline. Stinson
v. United States, 508 U.S. 36, 38 (1993). This is so even when
the commentary provides a "broader interpretation" than that
advanced by the guideline’s text. United States v. Mason, 284
F.3d 555, 560 n.1 (4th Cir. 2002). 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 inter-
est.
B.
We recognize that this holding does not accord with that of
other circuits. See United States v. Deberry, 576 F.3d 708 (7th
Cir. 2009); United States v. Johnson, 581 F.3d 994 (9th Cir.
2009); United States v. Beatty, 538 F.3d 8 (1st Cir. 2008);
United States v. Newson, 515 F.3d 374 (5th Cir. 2008).2 Those
2Our holding would not, however, require a different disposition in two
of these cases. In Johnson, the defendant entered a conditional plea,
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courts have concluded that the Government may withhold a
§ 3E1.1(b) motion based on any rational interest. See Beatty,
538 F.3d at 15 (calling governmental discretion under
§ 3E1.1(b) "nearly unfettered"); Newson, 515 F.3d at 378.
This conclusion relies heavily on cases interpreting § 5K1.1.
Cf. Beatty, 538 F.3d at 15.
In our view, for the reasons explained above, the commen-
tary to § 3E1.1(b) forecloses courts from relying on § 5k1.1
cases in interpreting § 3E1.1(b). This commentary, however,
has received little attention from our sister circuits. Instead,
those courts focus almost exclusively on the fact that Con-
gress in 2003 amended § 3E1.1(b) to insert the governmental
motion requirement. See PROTECT Act, Pub. L. No. 108-21,
§ 401(g). According to those courts, the mere fact of this 2003
amendment somehow demonstrates that Congress intended
that the Government possess the wide discretion under
§ 3E1.1(b) that it enjoys under § 5K1.1. See, e.g., Johnson,
581 F.3d at 1005-06; Beatty, 538 F.3d at 13-15. But nothing
in the 2003 reforms evinces such an intent. After all, Congress
could have amended the § 3E1.1(b) commentary so that it
conformed to the commentary surrounding § 5K1.1. Congress
declined to do so; it instead left unchanged § 3E1.1(b)’s man-
datory commentary and inserted language suggesting that the
Government’s newfound discretion applies only to the ques-
tion of "whether the defendant has assisted authorities in a
manner that avoids preparing for trial." U.S.S.G. § 3E1.1 cmt.
6.
Given these facts, we cannot agree with our sister circuits
that Congress’s insertion into § 3E1.1(b) of the government
reserving his right to appeal the denial of his suppression motion, 581 F.3d
at 998, and in Beatty the defendant pled guilty nearly sixteen months after
being indicted and forced the prosecutor to "invest[ ] significant time and
resources" proving disputed facts, 538 F.3d at 10, 12. In both cases, the
Government well could have properly withheld a § 3E1.1(b) motion on the
ground that the defendant failed to "timely" enter a true guilty plea suffi-
cient to relieve it of the burden of trial preparation.
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motion requirement reveals an intent to confer upon the Gov-
ernment the wide discretion provided it under § 5K1.1. See
Massachusetts v. EPA, 549 U.S. 497, 533 (2007) (holding that
a statutory grant of discretion is "not a roving license to
ignore the statutory text" but is instead a "direction to exercise
discretion within defined statutory limits"). Tellingly, the
Government never explicitly defends this approach or con-
tends that it enjoys the same expansive discretion under
§ 3E1.1(b) as it does under § 5K1.1. Instead, the Government
offers other arguments for upholding the sentence here. We
now turn to those arguments.
III.
A.
First, the Government maintains that an appellate waiver,
like the one that Divens refused to sign, serves its interest in
"avoid[ing] the expense and uncertainty of having to defend
defendant’s conviction and sentence on appeal and collateral
attack." Appellee’s Br. at 9.
This may be so, but § 3E1.1(b) simply does not require that
a defendant provide the prosecution with the type of assis-
tance that might reduce the "expense and uncertainty" atten-
dant to an appeal. Instead, § 3E1.1(b) provides that a
defendant earns an additional one-level reduction by provid-
ing the government one specific form of assistance, i.e. by
"timely notifying authorities of his intention to enter a plea of
guilty." Id.; see Webster’s Third New Int’l Dictionary 307
(1993) (defining "by" as "through the means or instrumental-
ity of"). Similarly, although § 3E1.1(b) subsequently identi-
fies general interests—resource allocation and trial avoidance
—the syntax of the guideline dictates that the furtherance of
these interests must again derive from this same single source:
the defendant’s "timely notif[ication of] authorities of his
intention to enter a plea of guilty." This is so because the
word "thereby" is defined as "by that means," Webster’s
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Third New Int’l Dictionary 2372 (1993) (emphasis added),
and in this case "that" refers back to the description in the pre-
vious clause of timely notification. See Johnson, 581 F.3d at
1008 (Smith, J., concurring).
Section 3E1.1(b) thus instructs the Government to deter-
mine simply whether the defendant has "timely" entered a
"plea of guilty" and thus furthered the guideline’s 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.
See United States v. Richins, 429 F. Supp. 2d 1259, 1263-64
(D. Utah 2006). 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." Black’s Law Dictionary 1152 (6th ed. 1990). Here,
Divens timely entered an unqualified "confession of guilt in
open court." That he also refused to assist the prosecution in
other ways does not deprive him of the additional one-level
reduction.
Furthermore, the text of § 3E1.1(b) reveals a concern for
the efficient allocation of trial resources, not appellate
resources. The guideline specifies that the guilty plea must
enable the "government and the court to allocate their
resources efficiently." U.S.S.G. § 3E1.1(b). The context sur-
rounding the term "the court" leaves little doubt that the term
refers to the district court, not an appellate court. See U.S.S.G.
§ 3E1.1(b) (requiring the defendant to "permit[ ] the govern-
ment to avoid preparing for trial"). Had Congress also
intended to conserve appellate court resources, it would have
referred to "courts," not "the court." See Webster’s Third New
Int’l Dictionary 2368 (1993) (explaining that "the" indicates
"that a following noun . . . refers to someone or something
that is unique . . . or exists as only one at a time"). The com-
mentary confirms this conclusion.3 See id. cmt. 2 (explaining
3Given that "the court" refers to the district court, and that the remainder
of the guideline and its commentary focuses exclusively on trial prepara-
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that the reduction is intended to relieve the Government of
meeting "its burden of proof at trial"), cmt. 5 (noting that the
"sentencing judge is in a unique position to evaluate a defen-
dant’s acceptance of responsibility"), cmt. 6 (recognizing
defendant must "notif[y] authorities of his intention to enter
a plea of guilty at a sufficiently early point in the process so
that the court may schedule its calendar efficiently"). In sum,
neither the text of, nor commentary to, § 3E1.1(b) permits the
Government to withhold a § 3E1.1(b) motion on the basis of
its interest in conserving appellate resources.
B.
Second, the Government argues that the conservation of
appellate resources is "closely related" to the interests recog-
nized by § 3E1.1(b). Appellee’s Br. 9; cf. Deberry, 576 F.3d
at 711. But we can discern no basis in the guideline for allow-
ing the Government merely to approximate compliance with
its requirements. As explained above, § 3E1.1(b) requires the
Government to consider the specific factors articulated in the
guideline itself, not some other criterion that it believes to be
"closely related" to the textual requirement. Cf. Massachu-
setts, 549 U.S. at 533-34 (strictly limiting discretion to the
"statutory question" and not to related "policy judgments").
Moreover, the Government has offered no evidence sug-
gesting that appellate waivers actually do further Congress’s
purpose in amending § 3E1.1(b).4 The Conference Report
tion, § 3E1.1(b)’s reference to the Government’s "resources" most natu-
rally refers to the Government’s trial resources. See King v. St. Vincent’s
Hosp., 502 U.S. 215, 221 (1991) (noting that "the meaning of statutory
language, plain or not, depends on context").
4In passing, the Government attempts to justify Divens’s sentence by
noting that resources "devoted to appeals are resources lost to prosecuting
other cases." Appellee’s Br. at 9-10 (citing Johnson, 581 F.3d at 1002).
This concern ignores the fact that § 3E1.1(b) addresses only the prosecu-
tion of a defendant’s "own misconduct," not the defendant’s assistance in
prosecuting other cases. U.S.S.G. § 3E1.1(b). Even the commentary to
§ 5K1.1 emphasizes that courts are not to mistake these two distinct types
of assistance. See id. § 5K1.1 cmt. 2.
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accompanying those amendments states that the amendments’
overarching goal was to address the "longstanding problem of
downward departures" in cases involving "sexual abuse."
H.R. Rep. 108-66 at 58 (2003) (Conf. Rep.). But nothing in
the report suggests that curtailing appellate review would fur-
ther this objective. To the contrary, the paragraph in the report
describing § 3E1.1(b) explains that Congress intended to
"allow appellate courts more effectively to review illegal and
inappropriate downward departures" and to ensure that sen-
tencing courts "give specific written reasons for any departure
from the guidelines." Id. at 59. Appellate waivers—by neces-
sarily curtailing the appeal rights of the Government as well
as defendants, see United States v. Blick, 408 F.3d 162, 168
n.5 (4th Cir. 2005)—provide no assistance in combating this
problem of "illegal downward departures." Thus, we cannot
agree with the Government that courts should stretch the
Guidelines’ plain language to facilitate the Government’s pur-
suit of such waivers.
C.
Finally, the Government suggests that it can extract an
appellate waiver in exchange for a § 3E1.1(b) motion in order
to relieve it of expending resources "anticipating, and ulti-
mately defending, a complete appeal."5 Appellee’s Br. at 10
(quoting Newson, 515 F.3d at 378 (internal quotations omit-
ted)). This argument ignores the fact that a defendant’s uncon-
ditional guilty plea in and of itself limits his grounds for
appeal, restricting subsequent attacks on a conviction to the
question of whether the plea "was both counseled and volun-
5The Government further suggested at oral argument that appellate
review of criminal sentences wastes trial resources by requiring courts to
resentence defendants upon remand. The argument is meritless. The Sen-
tencing Commission did not draft § 3E1.1(b) to permit the conservation of
resources by eliminating a defendant’s statutory or constitutional rights.
Rather, § 3E1.1(b) simply seeks to allocate resources "efficiently." To
resentence a defendant who has received an illegal sentence is surely "effi-
cient."
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tary." United States v. Broce, 488 U.S. 563, 569 (1989). Of
course, attacks on these grounds fall outside the scope of any
appellate waiver. See Blick, 408 F.3d at 169 (recognizing the
invalidity of appellate waivers entered into involuntarily or
unintelligently). Therefore, when a defendant has uncondi-
tionally pled guilty, his refusal to sign such an appellate
waiver has no impact on his ability to challenge his conviction
or on the Government’s need to "anticipate" such a challenge.
IV.
For the foregoing reasons, we vacate Divens’s sentence and
remand for proceedings consistent with this opinion.6 If the
Government cannot provide a valid reason for refusing to
move for an additional one-level reduction under U.S.S.G.
§ 3E1.1(b) and continues to refuse to move for a such a reduc-
tion, the district court should order the Government to file the
motion.
VACATED AND REMANDED
6On appeal, Divens also argues that the district court imposed a substan-
tively unreasonable sentence in relying on a 20:1 crack/powder ratio in
calculating the extent of its downward departure. Appellant’s Br. at 28-38.
Because the court procedurally erred in miscalculating the Guidelines
range, we do not reach this argument. See United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009) (permitting consideration of a sentence’s
substantive reasonableness "[i]f, and only if" an appellate court "find[s]
the sentence procedurally reasonable").
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