We all know that the federal criminal justice system is able to run because almost all criminal defendants plead guilty. The Guidelines facilitate this via USSG 3E1.1, which awards either a 2-level or 3-level reduction to those defendants who enter into timely pleas. The third point is available only upon government motion in cases where the defendant's timely plea permits the government "to avoid preparing for trial" and "to allocate their resources efficiently."
For whatever reason, some prosecutors thought it appropriate to withhold the third level from any defendant who refused to waive his right to appeal, and at least one Court actually upheld the practice. Thankfully, in November 2013, the Sentencing Commission intervened with a clarifying amendment to 3E1.1 (Amendment 775), making clear that a defendant's refusal to waive his (Constitutional) right to appeal is not a valid basis to withhold the third point.
We are reminded of all of this via a recent Fifth Circuit decision: United States v. Torres-Perez. In that case (actually two consolidated cases), prosecutors withheld the third point because the defendants refused to waive their appeal rights. The Fifth Circuit stepped in, overruled its prior precedent, vacated the sentences, and remanded for resentencing. So, the case is a good reminder of this recent clarification to 3E1.1. If a prosecutor seeks to withhold the third point, make certain that the reasons are sound.
The decision is also a good reminder that, in litigating appeals, do not concede standards of review so easily. In this case, even though both defendants objected to the withholding of the third point in the district court, on appeal, each conceded that plain error review applied. The Fifth Circuit came to the defendants rescue and, despite the concession, determined that the issues were preserved. Moving forward, remember: "Once a federal claim is properly presented, a party can make any argument in support of that claim." Yee v. City of Escondido, 503 U.S. 519, 534-35 (1992).