Split Noted: Is U.S.S.G. 3E1.1(b) Mandatory or Permissive?

Per United States v. Castro (3d Cir. Jan. 8, 2013)

U.S.S.G. 3E1.1 reduces the offense level of a criminal who accepts responsibility for the crime.  It has two parts.  First, a two-level adjustment is appropriate "[i]f the defendant clearly demonstrates acceptance of responsibility."  Id. 3E1.1(a).  Second, an additional one-level decrease is called for if (1) the first section is satisfied, (2) the offense level prior to the first section is >15, and (3) the government formally requests.  In full, the second part provides:

(b) If the defendant qualifies for a decrease under subsection (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 notifying 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

Id. 3E1.1(b) (emphases altered). 

The Third Circuit notes a split between the CA5 and the CA7 concerning whether this second provision remains discretionary with the court, or is mandatory upon satisfaction of the prerequisites, respectively.  (p. 29.)  Reviewing the cited opinions, the split appears to be lopsided in favor of discretion, in large part based upon one of the application notes:

Because 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. n.6 (emphasis added).

Once again, I find myself in the minority, viewing the guideline as mandatory.  The plain text of the Guideline itself is in the imperative, follows the familiar "if . . . then" framework, and does not admit of discretion.  While the comment does sound a note of discretion with the use of may, it also notes that the Government, not the Court, is in the best position to exercise the discretion.  Further, guidelines trump comments in cases of inconsistency.  United States v. Stinson, 508 U.S. 36, 38 (1993). 

Finally, a mandatory reading does not eliminate judicial discretion for two reasons.  First, the judge determines whether section (a) applies, and thus whether one of section (b)'s prerequisites is satisfied.  Second, if the judge still disagrees with the adjustment, he can simply impose a variant sentence under the 3553(a) factors and tie the variance to what the offender's guidelines range would have been without the additional one-level downward adjustment.

UPDATE:  additional coverage from
Split Circuits: Third Circuit Declines to Weigh in on Split Re Whether Adjustment under Guideline 3E1.1(b) Is Mandatory under Certain Circumstances