Whether the government, at sentencing, may withhold a motion for a third-level reduction for acceptance of responsibility under USSG § 3E1.1(b) on the ground that the defendant proceeded to a hearing on a motion to suppress evidence

QUESTION PRESENTED Under Section 3E1.1(a) of the United States Sentencing Guidelines (“USSG”), courts reduce the Guidelines offense level by two points when defendants accept responsibility for their offenses. And, when the offense level determined prior to the operation of subsection (a) is high enough (16 points or more), the government may move the court to reduce the offense level by a third point, under USSG § 3E1.1(b), if 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[.]” A circuit split has long existed on whether the government’s having to go through a hearing on a defendant’s motion to suppress evidence is a valid basis for refusing to move for the third point under USSG § 3E1.1(b). The Ninth, Tenth and D.C. Circuits have held that the answer is “no,” while the Second and Fifth Circuits have held that the answer is “yes.” The court below acknowledged the split and observed that the Fifth Circuit’s caselaw on the issue is “entrenched.” Pet. App. 3a. The question presented is: Whether the government, at sentencing, may withhold a motion for a third-level reduction for acceptance of responsibility under USSG § 3E1.1(b) on the ground that the defendant proceeded to a hearing on a motion to suppress evidence. 1