While there can be, and sometimes are, multiple pretrial proceedings that occur in a criminal case, most of these proceedings are minimized by early plea agreements.
94 percent of the criminal convictions obtained at the state level and 97 percent of the criminal convictions obtained at the federal level are the result of plea agreements —sometimes referred to as “plea bargains.”
Plea agreements at the federal level are authorized by Federal Rule of Criminal Procedure 11(c)(1)(C) . This statute permits a defendant’s attorney to enter into plea negotiations with the U.S. Attorney’s Office to determine if a mutually agreed upon guilty plea contract can be reached.
These negotiations are known as “proffer meetings.”
Once reached, the verbal contract to plead guilty becomes what is known as a “proffer agreement”—a signed document by all parties spelling out the terms of the agreement (such defendant’s responsibility to provide evidence of any and all crimes he has committed and/or defendant’s willingness to provide evidence, even testimony, about crimes committed by others).
In exchange for a defendant’s guilty plea, the U.S. Attorney’s Office will recommend a sentence to be imposed generally below that which is recommended by the U.S. Sentencing Guidelines. The trial court can accept or reject the plea agreement. However, under Rule 11(c)(1)(C), once the court accepts the agreement, it is bound by the recommended sentence in that agreement.
But that does not end the discussion.
The U.S. Supreme Court has ruled that 18 U.S.C. § 3553(a) (imposition of a sentence) requires a federal judge to consider the sentencing factors spelled out in that statute in order to impose a “substantively reasonable sentence.”
The court specifically held that a Rule 11(c)(1)(C) plea agreement “does not discharge the district court’s independent obligation to exercise its discretion” under “[f]ederal sentencing law (18 U.S.C. § 3553(a)) … to impose ‘a sentence sufficient, but not greater than necessary to comply’ the purposes of federal sentencing.”
In other words, the recommended sentence in a Rule 11(c)(1)(C) agreement must meet the sentencing purposes of 18 U.S.C. § 3553(a).
In 2018, the Supreme Court held that before accepting a Rule 11(c)(1)(C) agreement with a specific recommended sentence, the trial court must consider the U.S. Sentencing Guidelines—a derivative of 18 U.S.C. § 3553(a)—and:
“may not accept the agreement unless the court is satisfied that ‘(1) the agreed sentence is within the applicable guideline range; or (2)(A) the agreed sentence is outside the applicable guideline range for justifiable reasons; and (B) those reasons are set forth with specificity.’”
These sentencing requirements flow from a precedent-setting 2007 decision by the U.S. Supreme Court, Gall v. United States , that all federal sentences must be substantively reasonable.
The question then arises, can a federal defendant challenge the substantive reasonableness of a Rule 11(c)(1)(c) agreed sentence the court was bound to impose?
At least four federal circuit courts of appeal have answered this question in the affirmative—Third, Sixth, Eighth, and Ninth—while three circuits—Fourth, Seventh, and Tenth—have answered the question in the negative.
The general view of the circuit denying a defendant a right to challenge an agreed sentence is that such a sentence is not illegal because the defendant got what they bargained for.
On March 21, 2023, the Fifth Circuit Court of Appeals refused to follow the lead of the three negative circuits by finding that an agreed sentence can be substantively unreasonable in violation of 18 U.S.C. § 3553(a).
The appeals court pointed out that the “guardrails” of this statute “are designed to keep the district court within the bounds of the sentencing statute.”
Put simply, an agreed sentence in a plea agreement is not always a “bargain.”
Billy Sinclair spent 40 years in the Louisiana prison system, six of which were on death row. He is a published author, an award-winning journalist (a George Polk Award recipient), and the co-host with his wife Jodie of the criminal justice podcast, “Justice Delayed.”
