Federal prosecutors are seemingly encouraged by the DOJ to use their leverage to extract concessions from defendants who wish to limit their sentencing exposure in connection with negotiated pleas of guilty. Compelled waivers of the right to appeal have become de rigueur; fact stipulations with sentencing consequences are often demanded and waivers of Booker variance arguments are often sought, without little or no court oversight or review. But, sometimes, the government can go too far even in the view of courts which typically do not wade into areas of prosecutorial discretion.

The Second Circuit recently halted such a practice of prosecutorial overreaching, which had prevailed in at least one district. In United States v. Lee, 2011 WL 3084958 (2d Cir., July 26, 2011), a sentence in a drug case was vacated on appeal as procedurally unreasonable because the government had refused to seek a third level reduction for acceptance of responsibility. Its rationale, rejected by the court of appeals: at sentencing Lee had contested the basis for a single upward adjustment set forth in his presentence report, which necessitated a hearing, and as a result required the government to expend the effort to prepare for that hearing.

Under Sentencing Guidelines § 3E1.1(b), a sentencing court may reduce the total offense level by a third level or point for a defendant pleading guilty if he has timely notified the government of his intention to plead guilty, thereby “permitting the government to avoid preparing for trial ….” The Guidelines require a government motion for that third level of reduction, but under the case law that motion cannot be withheld for unconstitutional reasons or in bad faith. The Second Circuit first held that a plain reading of the section makes clear that, as long as the government is spared the effort of preparing for “trial,” it may not withhold its motion because of work it was obliged to undertake for sentencing. But the Court went further, resting its holding on a higher ground: the defendant “should not be punished” for exercising his due process right to reasonably contest errors in his presentence report; the government’s refusal to move under such circumstances was unlawful, an abuse of authority, and “grounds for reproach.”

Perhaps more federal courts will in the same way exercise oversight and undertake review as to other provisions imposed on defendants and their lawyers in an effort to limit their advocacy for a fair and reasonable sentence.