Written by attorney Jonathan Clark Baird

Federal Criminal Plea Bargaining Process

In state court, 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.

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