Submitted: September 18, 2017
from United States District Court for the Eastern District of
Arkansas - Little Rock
COLLOTON, BENTON, and KELLY, Circuit Judges.
BENTON, CIRCUIT JUDGE.
L. Jordan pled guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). The district court denied his request for a third
level of reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1(b). Jordan appeals. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
2014, Jordan pled guilty to unlawfully possessing a firearm.
At sentencing, the district court decreased his offense level
by two for acceptance of responsibility under U.S.S.G. §
3E1.1(a). The government declined to move for the third level
under § 3E1.1(b). Jordan did not object. The district
court sentenced him as an armed career criminal. He appealed.
This court reversed the armed career criminal determination
and remanded for resentencing. United States v.
Jordan, 812 F.3d 1183, 1187 (8th Cir. 2016). In a
supplemental memorandum, Jordan requested the court decrease
his offense by three levels under "U.S.S.G. §
3E1.1(a)." The government responded that "the third
point reduction is only made upon motion of the
government." It again refused to move for the reduction
under § 3E1.1(b). At the resentencing hearing, Jordan
requested the reduction. He did not mention, let alone argue,
that the government's refusal was error. The district
court denied the third level because the government did not
move for it.
court reviews the district court's "failure to grant
a § 3E1.1(b) reduction" for clear error. United
States v. Moore, 683 F.3d 927, 931 (8th Cir. 2012). If a
defendant does not make "sufficiently specific
objections" before the district court, the claim is
reviewed for plain error. United States v. MacInnis,
607 F.3d 539, 542 (8th Cir. 2010).
did not make "sufficiently specific objections" to
the government withholding the reduction. See
id. At resentencing, Jordan's
The next issue is whether or not to award the third point,
and the government objects, said they're not going to do
it. But in light of everything's he's done since
he's been arrested, I think the Court should go ahead and
award him the third point. I know it's discretionary with
the Court. But he's not done anything as far as being
inconsistent with the plea of guilty, other than he appealed,
and he appealed and he was right and we're back here for
court immediately responded:
That request is overruled, Mr. Adams. Mr. Jordan, the Court
only gets involved on the third point if the United States
makes a motion. And so I don't have any role to play in
that because Ms. Mazzanti has been clear that the United
States is not going to ask for the third point. So I just
don't get there, I can't get there under the law,
whether you're entitled to that third point.
court made clear that a § 3E1.1(b) reduction is
appropriate only "upon motion of the government."
See U.S.S.G. § 3E1.1(b).
Although Jordan requested the reduction, he did not ask why
the government refused to move for it or argue that the
refusal was error. Thus, he did not preserve his objection.
Cf. United States v. Stacey, 531 F.3d 565, 568 (8th
Cir. 2008) (holding defendant did not waive his objection
where his counsel asked for "an explanation as to why
the additional one-level reduction had been refused" and
allowed the court "ample time to prevent or correct any
he did not specifically object, this court reviews for plain
error. See MacInnis, 607 F.3d at 542 (reviewing for
plain error where the defendant "failed to make
sufficiently specific objections to put the government on
notice of what the government needed to prove at
sentencing"). "Under plain error review, the
defendant must show: (1) an error; (2) that is plain; and (3)
that affects substantial rights. If a defendant makes that
showing, an appellate court may exercise its discretion to