Day: September 15, 2010

In state court in Texas, plea agreements almost always involve a plea to a certain sentence whether it be a particular term of probation or a particular number of days or months in jail or prison. Like most contracts, each side knows what it is getting and what it is giving up when a defendant enters a plea agreement.Pleas and plea agreements in federal court are entirely different. Indeed, unless a defendant has a skilled and very persuasive lawyer, there is no “guaranteed” sentence when a defendant pleads guilty in federal court. A defendant enters his or her guilty plea “blind” without knowing what his or her ultimate sentence will be. This is because sentences in federal court are determined by a defendant’s sentencing guidelines. These guidelines are based upon a myriad of factors. While a defendant’s attorney can give the defendant an estimate as to what their guideline sentence will be, there is no guarantee. A defendant ordinarily must plead guilty and then the sentencing is held a few months later. It is only after the plea is entered that the probation office does an initial calculation of the defendant’s sentencing guidelines. Either the government or the defendant can file objections to those calculations but those objections are resolved until the sentencing hearing. Moreover, judges are no longer required to follow the sentencing guidelines and can give a sentence lower or higher than provided for by the guidelines. The only protection a defendant usually has is that they cannot be sentenced higher than the “statutory penalty” (in other words the maximum penalty provided for in the statute that the defendant is alleged to have violated). This is one of the primary reasons that a defendant charged in federal court must have a lawyer who regularly practices in federal court, as opposed to state court. As mentioned above, a skilled lawyer can try to negotiate one of the rare “guaranteed” pleas. If that fails, a skilled lawyer, as opposed to a lawyer who does not practice regularly in federal court, will likely be able to give a defendant an accurate prediction of what his or her sentencing guidelines will likely be so that a plea is not totally “blind.” Moreover, a skilled lawyer can file appropriate objections to how the probation officer calculates the guidelines and prepare an appropriate sentencing memorandum to convince the judge to impose a sentence below what is called for by the guidelines.So, if the sentences in federal court are usually not guaranteed upon a plea of guilty, why should a defendant plead guilty at all? In a small number of cases, the government might allow a person to plead guilty to a lesser offense (such as a misdemeanor rather than a felony) or drop a count that carries a mandatory consecutive penalty (such as using a gun in connection with a crime of violence or drug trafficking offense) in exchange for that person pleading guilty. The reality, however, is that, in most cases, prosecutors give up absolutely nothing in exchange for guilty pleas. Nevertheless, there is a huge incentive to plead guilty in federal court in cases in which a defendant has little or no defense to the charges. This is because the sentencing guidelines in federal court provide for a reduction of a defendant’s sentence by 2 or 3 levels if a person pleads guilty and, thereby, “accepts responsibility.” This can often reduce a sentence by at least a year and often by several years and is why so many defendants ultimately enter guilty pleas in federal court.Still, the question remains as to whether a defendant should enter a plea agreement in federal court as opposed to pleading guilty without a plea agreement. As explained above, a plea agreement in federal court will rarely guarantee a particular sentence. Also a plea agreement is not required to obtain the “acceptance or responsibility” reduction discussed in the preceding paragraph. Therefore, as we will explain, it is very important for a lawyer to analyze each individual case to determine if his or her client benefits from a proposed plea agreement. This is because, in many federal districts, a defendant will be required to give up his or her right to appeal their sentence as part of a plea agreement. We cannot emphasize enough that the right to appeal is a very valuable right and careful thought must be given before a defendant agrees to wive such an important right.As mentioned above, in a small number of cases, a prosecutor will allow a defendant to plea guilty to a lesser offense or drop a count that requires a consecutive sentence. In those cases, it may very well be in a defendant’s best interest to enter a plea agreement even if the defendant must give up his right to appeal. In many other cases, prosecutors will try to trick a naive defense attorney by agreeing to drop some charges in exchange for a plea agreement in which a defendant waives his right to appeal. For example, the prosecutor might agree to allow a defendant to plead to one drug delivery charge and drop three others. Nevertheless, the defendant and the naive defense attorney will not understand that the other three deliveries will still be used to compute the defendant’s sentencing guidelines so that the defendant gains almost nothing by the dropping of the three other charges.At Broden & Mickelsen, we have won many appeals after a sentencing judge has miscalculated a defendant’s sentencing guidelines. Therefore, before a defendant gives up his right to appeal in a plea agreement in federal court, it is imperative that the defendant be sure that they are getting a benefit in the plea agreement. Otherwise, they are giving up their right to appeal and getting nothing for giving up that valuable right. Moreover, in most cases, a defendant will not know if there are any appellate issues regarding the guidelines until after they have entered the plea agreement giving up their right to appeal.In short, in many federal cases, even if a defendant decides to enter a guilty plea, it may make no sense at all to enter a plea agreement if that plea agreement requires the defendant to waive the right to appeal. Again, only a lawyer that regularly practices in federal court can tell a defendant whether they should enter a plea agreement. Nevertheless, any defendant who is considering entering a guilty plea in federal court pursuant to a plea agreement must be sure to ask their attorney what benefit the government is giving them in the plea agreement and what they are giving up. A defendant should also beware of the answer that the benefit is that the government is dropping some of the counts against them. If that is the answer, the next question should be whether the dropped charges can still be used to compute the defendant’s sentencing guidelines because, if the answer to that question is “yes,” dropping some of the charges is actually no benefit at all and certainly not one worth giving up a defendant’s valuable right to appeal

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Day: September 15, 2010

Plea Agreements in Federal Court