Beware of Deceptive Plea Agreements
In most State Courts when a Defendant signs a Plea agreement with the prosecutor, the State Judge is on board with the proposed sentence and it’s a done deal. However, with the Feds, that’s not how it works at all. This essentially leaves a Federal Defendant at the Judge’s mercy. Here’s How!
Plea Agreements are only binding between Defendants and the DOJ in the District in which charged. It specifically excludes Federal Judges from being a party to it, and allows Federal Judges to legally hand out any sentence they want within the maximum allowed by law.
Hi it’s Larry Levine, today I’m gonna clue you in on plea agreements. Soon after a Defendant is arrested and indicted (charged), the Plea Agreement game swings into high gear. Over the next several months, maybe years, defense lawyers will make money on a Defendant’s dime fighting the case, negotiating with the prosecutor, and reviewing (discovery) for evidence of alleged crimes.
Is Your Lawyer Playing You with the Plea Agreement
Keep in mind that when Indictments come down, any good defense lawyer already has a pretty good idea what a Defendant is facing as far as them going to prison.
Regardless, the lawyer will mount a criminal defense. Sometimes for as high as $50,000 plus retainer. All while knowing with certainty that incarceration is more than likely, that the defendant is never going to go to trail and instead plead out the case after the prosecutor drops a bunch of redundant charges.
Here’s how it usually plays out. After months of back and forth negotiation and lots of billable hours at the Defendant’s expense, a Plea is finally proposed between the prosecutor and defense lawyer that “Appears” to benefit the defendant. It is filled with promises of a dismissal of other charges and a recommendation to the court of an unbinding prison sentence.
Is Signing the Plea Agreement a Good Deal?
Is signing a plea really a good deal? Well sometimes it is and sometimes it’s not, so I’m gonna jump right in and explain possible negative aspects of Plea Agreements.
- Judges can use dismissed counts against you at sentencing as Relevant Conduct;
- Defendants give up appeal rights unless they can show ineffective assistance of counsel;
- Defendants give the right to challenge sentences by Habeas Corpus later;
- Prosecutorial sentence recommendations are not binding on the judge
- Prosecutors use plea agreement as tools to coerce you to testify against others
- You could potentially get the same sentence by just pleading guilty and give up nothing
RELEVANT CONDUCT EXAMPLE
I’m gonna start by explaining Relevant Conduct since it’s the most left handed aspect of the entire plea. Buried in one of the back paragraphs is a phrase that says, “the court may consider dismissed counts when determining an appropriate sentence”. This phrase means Defendants could get longer sentences than if the court just used the offense a Defendant was pleading guilty to.
Here’s an example of how it works. Lets say a guy named Justin was the ringleader of a group of fraudsters. He had a 5 count indictment for wire fraud, with count 1 being a conspiracy. Counts 2, 3, 4 and 5 being his criminal acts that contained the dollar loss or intended loss exposure.
Wire fraud itself carries a base offense level 6 in the guidelines. Justin’s leadership role gives him a 4 level enhancement, and an 18 level enhancement for 3.5 million dollars in losses. This puts him at level 28 in the US Sentencing Guidelines.
Let’s do some quick math and score him starting at level 28. Since the Sentencing Guidelines gives a 3 level reduction for acceptance of responsibility and early guilty plea. This puts him at level 25 which carries a 57 to 71 month sentence.
Sooner or later the prosecutor will jump in with a ploy offering a plea agreeing to drop counts 2 and 3 and just have you plead guilty to conspiracy count 1. However, since the conspiracy contains the events from counts 2 and 3, the dollar loss is the same, and so is the sentence exposure. This results in no actual value to the defendant.
How Prosecutors Manipulate Guilty Plea Agreements
In exchange for signing the plea, the prosecutor will offer to recommend the defendant for a ‘3 level US Sentencing Guidelines offense level reduction’ under USSG Section 3E1.1. It is done for acceptance of responsibility and for an early guilty plea resulting in a potentially lower sentence.
What your lawyer won’t tell you is that you can walk into court without a plea agreement, plead guilty to your crimes, get the same sentence and give up nothing.
Those 3 levels the prosecutor claims they are giving you actually come from the US Sentencing commission not the prosecutor. As long as a defendant “clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his or her criminal conduct,” the 3 level adjustment will be applied.
This may include voluntarily and truthfully admitting the conduct, expressing remorse, and accepting responsibility for your crimes and do an early guilty plea you would get those anyway and give up nothing.
While that may sound like a good deal to some, is it really? I always tell people to look for value when cutting a deal with anyone and dealing with the feds is no exception.
If you look further in the plea agreement, it also requires the defendant to give up their rights to appeal their sentence as allowed under 18 usc 3742, along with filing a collateral attack known as a 2255 motion pursuant to 28 USC 2255. These allow you to challenge your sentence later, as well as noting, as outlined above, that the court is not a party to the plea and can sentence defendants to whatever they want.
If you’re interested in and willing to cooperate to try getting a “possible” extra reduction in sentencing, a Section 5K1.1 motion of the U.S. Sentencing guidelines could hold more value.
If you have questions about your plea agreement be sure to reach us out by clicking here to contact us or call 907-216-1000