The Third Circuit has recently reiterated the proposition that the sentencing judge may under certain circumstances override the Government's refusal to move for a third level of acceptance of responsibility:

 

On appeal, Sanders contends the government vindictively refused to move for a § 3E1.1(b) departure and that the district court erred when it concluded it could not order the departure absent a government motion. § 3E1.1 provides:

*2
a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

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. U.S. Sentencing Guidelines Manual § 3E 1.1(a-b)(2006).

In relevant part, the Commentary to § 3E1.1(b) states:

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. U.S. Sentencing Guidelines Manual § 3E1.1(b) & cmt. n. 6 (2006)(citing the PROTECT Act of 2003 § 401(g), Pub.L. No. 108-21, 117 STAT. 671-72).

Despite the government's broad discretion under this provision, district courts have the power to review a prosecutor's refusal to move for a downward departure and to grant a remedy if they find the refusal a) was based on an unconstitutional motive, such as race or religion, or b) lacked a rational relationship to any legitimate government objective. United States v. Wade, 504 U.S. 181, 185-186 (1992); United States v. Abuhouran, 161 F.3d 206, 212 (3d Cir.1998). However, in recognition of the government's prerogative, the scope of a district court's review here is “extremely limited” absent a plea agreement. United States v. Isaac, 141 F.3d 477, 481 (3d Cir.1998).

The government may violate due process if it refuses to move for a departure vindictively. United States v. Paramo, 998 F.2d 1212, 1219 (3d Cir.1993), cert. denied, 510 U.S. 1121 (1994). Sanders carries the burden of proving prosecutorial vindictiveness, by adducing evidence of actual vindictiveness or evidence which generates a presumption of vindictiveness. Paramo, 998 F.2d at 1220 (internal citations omitted).


U.S. v. Sanders  L 3707843, *1 -2 (C.A.3  (C.A.3 (Pa.),2006)