What a Federal Plea Agreement Commits You To.

Under Federal Rule of Criminal Procedure 11, which governs federal guilty pleas, a defendant and prosecutor may enter a plea agreement that:

• (A) Includes one or more promises by the government that it will dismiss or withdraw charges or that it will forgo prosecution of certain counts of an indictment, information, or plea agreement;
• (B) Includes a recommendation by the government about the sentence; or,
• (C) Includes a sentence, or a range of sentences, or a specific disposition that the government agrees to and the defendant accepts.

These examples are illustrative rather than comprehensive. While judicial review is required for the plea to be entered, this does not necessarily render the provisions binding; Rule 11(c)(1)(B), for example, explicitly states that the government’s sentence recommendation under Rule 11(c)(1)(B) will not bind the court.

Although it is reported that more than 93% of federal criminal cases resolve through guilty pleas, that does not necessarily mean a defendant has entered into a plea agreement to avoid a trial. Indeed, federal defendants may plead guilty without any negotiated agreement. Lawyers routinely call this kind of plea an “open plea.”

Beyond guilty pleas, defendants also have options to plead not guilty, or nolo contendere, and any federal defendant can insist on a trial as well.

When is a Federal Judge Bound by the Plea Deal?

If a defendant accepts a plea agreement and a federal judge rejects the government’s sentence recommendation under Rule 11(c)(1)(B), is the defendant then permitted to withdraw their plea? As explained above, Rule 11(c) states that such sentence recommendations do not bind the sentencing court. While it is not quite the same scenario as when a court rejects an accepted Rule 11(c)(1)(C) disposition, and Rule 11(c)(1)(C) explicitly allows defendants to withdraw their pleas if the court rejects the disposition, it does not appear that the sentencing court’s rejection of a Rule 11(c)(1)(B) recommendation does not permit automatic withdrawal. Instead, the defendant must seek withdrawal, and this is then up to the sentencing court.

What if the Sentence is Imposed Above the Guidelines Range?

If a defendant is sentencing above the Guidelines range, but based on the recommendations in their plea agreement, can a federal judge still impose the sentence? The answer is: yes, if the government and the sentencing judge agree that the sentence is necessary for justice to be served. However, if the defendant’s plea agreement is merely a Rule 11(c)(1)(B) recommendation, a judge can impose the sentence unless it exceeds the statutory maximum punishment allowed under federal law. This is true if the nonbinding recommendation is a “request” and not a requirement, though the defendant may object and have these arguments before the sentencing judge if appropriate.

What is the Role of the Federal Sentencing Guidelines in a Federal Plea Agreement?

For federal guilty pleas where there is a plea agreement, this agreement frequently includes a “sentencing calculation,” or what is commonly referred to as a “sentencing stipulation.” This refers to the federal sentencing guidelines for federal criminal offenses and how the defendant and the government calculate the defendant’s sentencing guidelines calculations. Notably, these calculations do not bind the sentencing court. However, if the prosecution and the sentencing judge agree to the calculation, then the defendant will not need to prove the offense’s guidelines calculation. This is not uncommon.

What Happens if the Government or the Defendant Withdraws from the Plea Agreement?

Generally, if either the government or the defendant withdraws from a plea agreement, the guilty plea will be void. The outcome will then depend on the specific circumstances at hand, and this is a question of determining the specific terms within the contract. It is a bit like any other contract. While some terms can be easily fulfilled, others can be more complex and time-consuming to meet.

What Must Happen Before I Sign a Plea Agreement?

As the legal case develops, if a federal prosecutor contacts your lawyer to discuss the possibility of a plea agreement, you will have the right to consult with your lawyer as the case develops and to have your lawyer make an informed decision on your behalf. The Sixth Amendment to the United States Constitution guarantees defendants a right to the “effective assistance of counsel,” which includes the right to consult with their attorneys.

With that said, federal judges do not have a role in the negotiation process of a plea agreement, according to Rule 11(c)(1) to the Federal Rules of Criminal Procedure. This means that the judge cannot participate in the negotiation process with the prosecutor or with the defendant.

Even if the government extends a plea deal, you do not necessarily have to accept it. There are times when you may want to reject the offer and proceed to trial. Even though a plea bargain may seem like the right move in some cases, it is not the only move for federal defendants. With that said, it does not mean that you cannot accept the offer. You can accept the offer if you decide to do so after consultation with your attorney.

Even so, there are cases where defendants seek relief after pleading guilty. However, such cases generally fall under two scenarios:

• Scenario 1: In Missouri v. Frye, 566 U.S. 134, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012), the U.S. Supreme Court held that prosecutors must inform defendants of the formal plea offers that have been extended to them. If the prosecutor had not done so, the defendant has a right to seek relief.
• Scenario 2: In Lafler v. Cooper, 566 U.S. 156, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), the U.S. Supreme Court held that, if a defendant’s decision to reject a plea offer was based on deficient advice by a lawyer, the defendant may be entitled to relief, provided that the defendant can show that the guilty plea would have been entered had the defendant received competent advice.

What is a Package Plea Agreement?

A package plea agreement is an agreement where the federal government offers concessions in exchange for multiple named defendants all agreeing to plead guilty to certain offenses. When a defendant wants to reject the offer, he can generally do so unless a federal judge finds the defendant’s plea is not voluntary. Judges will scrutinize package pleas to ensure a defendant’s plea is voluntary, because of the pressure to agree to the offer from the other defendants and the government.

Generally, federal prosecutors prepare the written plea agreement. Before this agreement is prepared, both parties negotiate in good faith to agree on all terms and conditions. The negotiations may begin before a formal indictment or criminal complaint is filed.

Which Protections Survive a Federal Guilty Plea?

In most guilty pleas, defendants waive most protections available to them. However, defendants can secure the court’s approval to enter a conditional guilty plea, as provided by Rule 11(a)(2) to the Federal Rules of Criminal Procedure. Rule 11(a)(2) expressly provides:

• With the court’s approval and the prosecutor’s consent, the defendant can enter a conditional plea where the defendant agrees to plead guilty in exchange for retaining the right to appeal specific pretrial rulings that could adversely affect the defendant’s sentencing, and
• If the defendant wins on appeal, the defendant is then entitled to withdraw the conditional guilty plea.

As a result, if you decide to enter a conditional guilty plea, you must demonstrate the legal or constitutional authority to reserve the right to appeal the pretrial rulings.

How Does a Conditional Guilty Plea Compare to a Withdrawn Guilty Plea?

If you win on appeal after entering a conditional guilty plea, you are entitled to withdraw the conditional plea. Following a defendant’s withdrawal of a guilty plea, Federal Rule of Evidence 410, which generally bars the use of a defendant’s withdrawn guilty plea against him or her, will apply. Federal Rule of Evidence 410 also governs the use of statements made in conjunction with plea discussions:

• Statements made during plea negotiations with the prosecutor may not be used against a defendant unless the government is then permitted to use an equivalent statement.
• Statements made during plea discussions with an attorney for the prosecuting authority may be used against the defendant only in the limited circumstances set out in Federal Rule of Evidence 410(b).

With regard to the admissibility of statements made during guilty pleas, Rule 11(f) of the Federal Rules of Criminal Procedure references Evidence Rule 410, providing:

• The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410.

Does a Guilty Plea Waive Additional Rights?

Along with sentencing-related appeals, a guilty plea waives additional rights. Along with the waiver of the right to a jury trial, the defendant who pleads guilty surrenders the rights to confront testifying witnesses and to exercise the right to compulsory process.

Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

How Is My Sentence Calculated After a Federal Plea?

If you enter a federal plea agreement with a factual stipulation, this stipulation can materially affect the calculation of the advisory Sentencing Guidelines. The Sentencing Guidelines, which have been advisory rather than mandatory since United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), use factual-related circumstances to help determine the defendant’s sentencing calculation. When a sentencing judge resolves any issues with the prosecutor’s presentence-report (PSR) and considers the pertinent statutory sentencing factors, the Guidelines provide recommended ranges for various sentencing determinations.

Which Factors Determine Your Sentence?

The Sentencing Guidelines present recommendations for various sentencing determinations; and, when considering these recommendations along with the statutory sentencing factors (which are located in the Sentencing Reform Act of 1984, 18 U.S.C. Section 3553(a)), judges can either impose a sentence within the advisory guidelines range or they can vary above or below the guidelines. With that said, judges are legally required to make specific sentencing determinations based on what the facts show about the defendant’s culpability. These factors include, but are not limited to:

• The need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment;
• The kinds of sentences available and the applicable sentencing guidelines range;
• The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct;
• The nature and circumstances of the offense;
• The history and characteristics of the defendant;
• The need to protect the public from future offenses; and
• The need to afford adequate deterrence or rehabilitation.

When Will I Receive the Presentence-Report?

Federal Rule of Criminal Procedure 32(e)(2) specifies the timing of the disclosure of a defendant’s presentence-report. This rule states that the presentence-report should be provided to the defendant and the defendant’s attorney at least 35 days prior to the date of the sentencing hearing. With that said, local rules may vary the timing of the disclosure and the sentencing judge may also issue specific orders affecting the timing of the disclosure.

Once the presentence-report is in the hands of the defendant and their attorney, Rule 32(f)(1) gives both sides 14 days to make objections to the PSR’s contents. The PSR must be in the hands of both sides before the guilty plea has to be withdrawn in the event the PSR is inaccurate. If the defendant’s PSR contains factual or sentencing inaccuracies, then the defendant has the right to file objections and the prosecutor has the right to respond to these objections.

What Happens When Either Side Breaks the Plea Agreement?

When the government breaches a federal plea agreement, Santobello v. New York, 404 U.S. 257 (1971) establishes that the defendant is entitled to either specific performance or withdrawal of his or her guilty plea. However, the defendant is not entitled to choose between the two. Instead, the sentencing court will evaluate the circumstances, and then decide which of the two remedies is appropriate.

If the defendant materially breaches the terms of the plea agreement, this may release the government from its promises, and the federal prosecutors can take action.

To What Extent are Plea Agreements Considered Contracts?

Plea agreements are typically viewed through the lens of contract principles, provided that constitutional due process is maintained. However, due to the inherent disparity in power between the government and the defendant, ambiguities are generally construed against the government as the drafting party.

What is a Cooperation Agreement?

A cooperation agreement is a common form of plea agreement involving specific terms requiring the defendant to cooperate fully and, in many cases, provide substantial assistance. This agreement generally includes an obligation to be truthful, complete, and continue to assist in government investigations and criminal prosecutions against other parties. This includes but is not limited to:

• Providing information to prosecutors about co-defendants;
• Participating in debriefings;
• Testifying at a grand jury proceeding; and
• Testifying against co-defendants at trial.

While cooperation agreement may require extensive time commitment on the part of the defendant and his or her attorney, once the defendant makes an agreement to provide assistance, it can be required. However, this does not necessarily mean that a defendant is entitled to a substantial-assistance motion, particularly if the prosecutor determines the defendant’s cooperation is insufficient in any manner. Defendants cannot compel substantial-assistance motions merely by disagreeing with prosecutors.

What Additional Consequences Can a Plea Create?

In addition to facing incarceration and/or fines, federal defendants can face:

• Restitution: Under the restitution mandatory provisions of 18 U.S.C. § 3663A, in cases where the defendant accepts a plea agreement or is convicted at trial, restitution is mandatory for all federal offenses involving:
• Theft from or of government-funded programs, and
• Financial institutions, etc.
• Special Assessment: Under 18 U.S.C. § 3013, the court shall impose a special assessment of $100 for each felony offense to which the defendant is charged with and convicted of.
• Forfeiture: Criminal forfeiture, as opposed to civil forfeiture, is handled under Federal Rule of Criminal Procedure 32.2. This rule allows for a judge to include forfeiture orders in the criminal sentence, which will be then executed as a civil judgment. This is permitted under Rule 32.2(a), and is then further elaborated upon by the subsequent provisions of Rule 32.2. Even if a defendant entered a plea agreement that includes a plea to conspiracy, the defendants guilty plea must be to have knowingly contributed to a larger-scale criminal operation.

Does the Plea Agreement Cover Challenges to Restitution and Forfeiture?

Many plea agreements will contain either a separate section on restitution and forfeiture or it will be waived entirely by agreeing to certain conditions. These are very important terms of the contract, and it is important to make sure these are properly negotiated and clearly defined.

What Are the Consequences of a Plea for Non-U.S. Citizens?

With respect to non-U.S. citizens, the sentencing court is required to inform the defendant of the removal consequences of a plea under Rule 11(b)(1)(O). But the court’s duty under Rule 11(b)(1)(O) is in addition to the duty of the defense attorney to inform the defendant about the potential consequences of the plea under Padilla v. Kentucky, 2010 U.S. 23 de junio, 559 U.S. 353, 130 S.Ct. 1482, 161 L.Ed.2d 227 (2010). In Padilla, the U.S. Supreme Court established that an attorney is required to provide clear removal advice if it is determined that a plea agreement or guilty verdict could potentially lead to non-citizen’s deportation.

What Are Other Possible Consequences of a Plea?

In addition to fines, criminal penalties and removal, the following additional consequences could arise from a guilty plea:

• Loss of right to own a firearm;
• Loss of professional licenses;
• Ineligibility for various social benefits and health services; and,
• Obligation to accept supervised release.

Can I Withdraw My Plea or Still Appeal?

Whether a defendant is permitted to withdraw his or her plea depends on the stage of the proceeding.

• Prejudicial Acceptance: Until the guilty plea is accepted by the court under Rule 11(a)(1)(B), the defendant has the right to withdraw for any reason. If a defendant is to withdraw his or her plea after Rule 11(a)(1)(B) but before the sentencing, the defendant must show “fair and just reason.”
• Pre-Sentencing Hearing: At the sentencing hearing, Rule 11 (a)(1)(B) prohibits withdrawal. After a sentence has been passed, the Defendant can still appeal the decision or file a claim in the district court under 28 U.S.C. § 2255.

If the defendant withdrew the plea before the judge made any findings of fact and before sentenced was passed, then the appeal rights are still with the defendant. However, if the defendant has already received a guilty plea and sentenced, then the defendant can’t withdraw it unless there are special circumstances.

What are the Consequences of a Plea Agreement?

When a defendant enters a guilty plea, he or she waves the right to appeal the decision in most cases. However, this is not absolute, and it may be possible to appeal, depending on whether there is any ambiguity in the plea agreement. In these cases, the government may have to show that the defendant knowingly and voluntarily signed the plea agreement to ensure that the appeal waiver is enforceable. For instance, a sentencing judge will not be able to impose a sentence that exceeds the statutory maximum, and the defendant can challenge a sentencing range that is not permissible under law. For example, if a federal court hadimposed the death penalty when that penalty was not permitted under the particular offense, this could be grounds for a challenge in the Court of Appeals. These appellate grounds depend on the specific facts and statutory considerations.

Given the complexities of federal plea agreements, it is crucial for defendants to negotiate them with precision. If you are being accused of a federal offense and are weighing the option of entering a plea agreement, consult with our experienced defense team to determine whether this is an option that may benefit you.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.