Federal - Plea Agreements

Question 1

What rule is pertinent to plea bargains?

Answer 1

Federal Rule of Criminal Procedure 11

Question 2

What kind of plea agreements can the Gov’t make with D?

Answer 2

FRCP 11

1. Dismiss other charges;
2. Make non-binding sentence recommendation; or
3. Make a sentencing recommendation that the court must accept or permit to withdraw his or her plea

Question 3

What must the CRT admonish the D of at plea?

Answer 3

Statutory minimum and maximum
including parole and supervised release
and the fact that the CRT must consider the sentencing guidelines, but is not bound by them

Question 4

Can the CRT dismiss charges?

Answer 4

Yes, CRT can reject plea agreement and dismiss charges

Question 5

Can parties enter a stipulation of evidence at the plea?

Answer 5

Yes, must be made in writing or on the record
CRT is not bound by that recitation of facts, but must inquire into whether there is a factual basis for the stipulation
CRT cannot increase offense level unless it’s a part of plea agreement

Question 6

What are some common benefits for the D in “plea bargaining” in federal cases?

Answer 6

1. Plea to a charge that doesn’t have a mandatory minimum;
2. Agree there will be no statutory enhancement;
3. Plead to an inchoate offense, which may limit the maximum;
4. Parties can agree to adjustments

Question 7

What are the “substantial assistance” departure provisions?

Answer 7

18 USC 3553(e)
28 USC 994(n)
USSG 5K1.1
FRCP 35(b)

Question 8

In evaluating a request for departure based on “substantial assistance” what should the court consider?
Also, list “substantial assistance” provisions

Answer 8

1. Significance and usefulness of the D’s assistance (taking into consideration Gov’t’s evaluation);
2. Truthfulness, completeness, and reliability;
3. Nature and extent of assistance;
4. Any injury or risk to D or D family; and
5. Timeliness of assistance.

18 USC 3553(e)
28 USC 994(n)
USSG 5K1.1
FRCP 35(b)

Question 9

Is “substance assistance” automatic?

Answer 9

No, Gov’t must file motion under 18 USC 3553(e) and 5K1.1 under FRCP 35(b)
Gov’t cannot refuse to file based on unconstitutional grounds (i.e. race, religion)

Question 10

Can CRT depart based on “substantial assistance”?

Answer 10

Split in Circuits

5th Cir. says NO sua sponte departure on 5K1.1

Question 11

Can a prosecutor renege on a written agreement to move for a downward departure when the agreement is not contained in the plea agreement itself?

Answer 11

No, But remember the CRT can depart below the statutory minimum based on substantial assistance only if the Gov’t so requests pursuant to 18 USC 3553(e)

Question 12

What is 18 USC 3553(e)

Answer 12

(e) Limited Authority To Impose a Sentence Below a Statutory Minimum.— Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

Question 13

How long does the Gov’t have to file to reduce sentence based on D’s post-sentence assistance?

Answer 13

1 Year
Unless, assistance could not have been provided earlier, or the information could not have been useful within a year
FRCP 35

Question 14

What happens if D gives incriminating information while helping the Gov’t?

Answer 14

SG 1B1.8
If there is a “Cooperation Agreement” self-incriminating information provided pursuant to the agreement cannot be used to determine guideline range.
Gov’t has burden to show that information contained in pre-sentence report was obtained from an independent source.
Information CAN be used to determine criminal history or career offender status.