1. 1 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of2003, Pub. L. No. 108-21, s 401(g), 117 Stat. 650, 671 (2003).
2. 2 According to the U.S. Sentencing Commission's data for2001- the most recent year for which such data is available - the majority of downward departures were initiated by the government for substantial assistance or "fast-track" cases. The percentage of all federal defendants who received downward departures (including "fast-track" cases) for reasons other than providing substantial assistance to the government was 18 percent. See U.S. SENTENCING COMMISSION, 2001 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, App. B (2002). On the other hand, 81.2 % of criminal defendants received a sentence reduction for acceptance of responsibility in 2001, and 63% received a "third point" off their sentences for accepting responsibility in a timely manner. See United States Sentencing Commission, 2001 Datafiles, USSCFY01, Table 18.
3. 3 See Memorandum from Attorney General John Ashcroft to All Federal Prosecutors 2, 6 (Sept. 22, 2003), reprinted infra 16 FED. SENT. REP. 129 (2003).
4. 4 Courts previously interpreted "government" in s 3E1.1 to mean the prosecution, but as discussed below, opportunities to review the prosecution's failure to move for a third-level reduction will be highly constrained.
5. 5 See KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 164 (1998). In 1999, for example, 94 percent of all convictions were obtained by pleas. See UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2000, tbl 5.16 (2001)