Some defendants in the federal system who wish to plea guilty want to make sure they will not serve more than a certain amount of time if they do in fact plea. For such individuals a federal criminal defense attorney could seek to reach a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).

If an agreement is made pursuant to 11(c)(1)(C), then it is within the courts discretion to accept or reject the agreement. Typically, the court will decide its position on the plea at the time of sentencing, following the receipt of the presentence report. No matter when the judge makes their determination, the defendant may elect to withdraw their plea or proceed with the plea. If the judge finds any portion of the plea agreement unacceptable and the defendant elects to proceed, the judge must advise the defendant that the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated. Keep in mind that an order rejecting a plea agreement can be reviewed on appeal, however, it cannot form the basis of an interlocutory appeal.

If there is a rejection of an agreed to sentence by the court it will typically affect the applicable guideline range. It may result in a recommended or agreed-upon sentence outside the applicable guideline range. However, it should be noted that since the ruling in Booker, the sentencing guidelines are advisory and the court is still able to accept the recommended or agreed-upon sentence as long as it can be justified under 18 U.S.C. §3553(a).

Some of this information may be moot for those charged in certain jurisdictions. There are certain U.S. Attorneys Offices around the United States which will not entertain the possibility of a Rule 11(c)(1)(C) plea agreement. Furthermore, as attractive as a Rule 11(c)(1)(C) plea agreement may sound to some defendants, it is not necessarily a good thing. Remember that at sentencing in the federal system, the defendant can argue for a departure under the guidelines as well as a variance under 18 U.S.C. §3553(a). Therefore, a defendant accepting an agreed upon sentence is in essence losing his opportunity to have their defense attorney argue for a sentence below that which the prosecution will be willing to agree to.

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.

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