District court is powerless to grant the third point absent a § 3E1.1(b) motion by the Government, even where bad faith alleged.

In United States v. Drennon, No. 06-3399 (3d Cir. February 20, 2008), Drennon was charged with bank robbery and, prior to trial, challenged the constitutionality of an identification made by one of the bank tellers. After the suppression hearing, the motion was denied. As a result, Drennon entered guilty plea without an agreement one month prior to trial. At sentencing, Drennon received a two point reduction for acceptance of responsibility under § 3E1.1(a). Drennon moved, however, for the additional third point but the Government refused to file a motion § 3E1.1(b). "The Government argued that the large amount of work to prepare for trial had been done in connection with the suppression hearing." The district court then determined it could not grant the third point without such a motion from the Government. Therefore Drennon’s motion for the third point was denied. Drennon appealed.

On appeal, Drennon did not dispute whether or not the district court had the discretion to grant the third point. In fact, Drennon conceded that it’s predicated on the Government’s filing of a motion under 3E1.1(b) pursuant to a 2003 revision to the Sentencing Guidelines. Instead, Drennon argued that, in his case, the Government’s refusal to file such a motion was an act of bad faith.

In an opinion drafted by Judge Stapleton, the Third Circuit disagreed and held that the district court is powerless to grant the third point absent a § 3E1.1(b) motion by the Government. The Court noted that similar arguments had been made where the Government refused to file a motion for downward departure under § 5K1.1. In those cases, the Court held that there was no bad faith exception for the failure to file a motion for downward departure. Citing Wade v. United States, 504 U.S. 181, 185 (1992), the Court recognized that "the condition limiting the court’s authority [under § 5K1.1] gives the government a power, not a duty, to file a motion ..." The same rationale applies in the § 3E1.1(b) context.

While there is no bad faith exception, the Court noted that district courts have discretion to review the denial where the Government’s refusal to file a motion was based on an unconstitutional motive. The Court cited as examples the refusal to file because of the defendant’s "race, religion, or gender" or where it can be shown the refusal "was not rationally related to any legitimate government end." Unfortunately for Drennon, none of those factors were found. Affirmed.