In federal court plea agreements are often extremely unfair and very nebulous.

Broadly speaking, there are two kinds of plea deals in federal cases. The first, and rarest, is an “11c1C”, or just a “C Plea,” which is a reference to the appropriate federal rule of criminal procedure. This is like a lot of plea deals in state court and is to a specific sentence. The court also has to impose that sentence or you can take your plea back. For example, everyone might agree that five years in prison is appropriate, and if the judge doesn’t want to do that she has to reject the plea, and the guilty plea itself gets taken back. The one drawback though, is that they are often tough agreements. They typically only happen when someone is going to get a relatively long prison term. These agreements provide certainty and are typically somewhat fair, and, probably because of that, they are extremely rare and hard to get.

The second kid of deal is an 11c1B deal, and is by far the most common in federal practice. This kind of plea deal pretty much sticks to whatever the sentencing guidelines recommend, with some nominal benefits for pleading guilty. They usually contain some kind of stipulation that purports to benefit the client, e.g. the client should get a minor role adjustment. But that stipulation is just between the Government and the defense. The judge doesn’t have to follow it. Further, the final sentence calculation is not in the plea itself, which means that you have to estimate what the calculation most likely will be, assuming the judge accepts the plea. Sometimes the probation office makes some unexpected calculations, or finds some new information, or otherwise mucks things up and the final range comes out very differently. It is also very common for these kinds of pleas to contain “Booker bars,” which are agreements that, whatever the guidelines say is the proper range, the defense won’t ask for less time, even though they normally could because the guidelines are advisory. This is basically an agreement to not advocate for your client because the Government has already given you an agreement to ask for some reduction, which may or may not actually help, and which the judge can reject or not. Plus, unlike C deals, if the judge rejects the deal or a stipulation, you can’t back out. Oh, by the way, essentially all federal plea agreements come with appeal waivers, so whatever the judge ends up deciding is final. The result for a lot of these deals is that the client pleads guilty with a vague notion of a broad range of sentencing possibilities, and then, months later, the judge imposes a sentence. If it goes well, that’s great. If it goes poorly, tough, and you have no options.

For reasons that should be obvious by now, lots of clients hate 11c1B deals and want C pleas. I don’t blame them. I often want C pleas for my clients. That doesn’t always happen though, so sometimes you have to put it in the judge’s hands.

Thankfully, sometimes the judge does the right thing. Yesterday in Camden, U.S. District Judge Robert Kugler did something very fair and unexpected for a person he was sentencing. Cory Leshner, who pled guilty to being involved in a really big organized crime scheme, got a pretty decent 11c1B plea agreement, where the Government agreed to recommend five years in prison. In exchange, the defense couldn’t ask for any other sentence, and everybody left it to the judge. On his own, and without being asked to do so, Judge Kugler ignored the recommendation and went down to two years in prison.

This shows a few important lessons, but the biggest is that even judges who have a reputation for being tough, as Judge Kugler apparently does, are still human beings who want to do what is right. The second is that, even in really unfair circumstances (which here would be facing sentencing with an 11c1B plea agreement), a very good lawyer can show a judge that his client deserves a shorter sentence, even though he is forbidden from going right out and saying it. Congratulations to defense counsel, Rocco Cipparone, on a big win for his client.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s