After Taking A Federal Plea Bargain


After a plea agreement has been disclosed, the court has the option to either accept or reject it. If the court decides to accept a plea agreement, they must inform the defendant that they will embody the judgment and sentence disposition described in the agreement. If the court decides to reject a plea agreement, Federal Rule of Criminal Procedure 11(e) requires it to inform parties of its rejection (on the record) and to advise the defendant on a showing of good cause, on camera, that the court is not required to accept such a plea agreement. In addition, the court must give the defendant the opportunity to withdraw his or her plea and must also advise the defendant that if he or she continues in a plea of guilty or nolo contendere, the court may rule a judgment that is less favorable than the original plea agreement.


Federal Rule of Criminal Procedure 11(e), however, does not specifically mention whether or not good cause needs to be displayed in open court or on camera. This issue is left to the courts to determine on a case-by-case basis.


In terms of plea agreements, the courts must be notified if an agreement has been made (unless good cause has been shown). Courts must be notified either at the arraignment or some other time prior to trial.


If a court has accepted a guilty plea, Federal Rule of Criminal Procedure 11(e) prohibits anyone to enter a judgment upon a plea unless the court first makes a satisfactory inquiry that the plea has a factual basis. However, this does not include a plea as to any forfeiture charged in the indictment since forfeiture is an aspect of the sentence and not the offense itself. Federal Rule of Criminal Procedure 11(g) requires that an exact verbatim record is made of the proceedings where the defendant enters his or her plea. If he or she pleads guilty or nolo contendere, the record must include the following:

  • Advice to the defendant from the court

  • An inquiry of the plea (or a plea agreement) to determine if the plea is voluntary

  • An inquiry into the accuracy of a guilty plea


Defendants may assert that Federal Rule of Criminal Procedure 11 only applies toward statements of intention by prosecutors and not in matters of plea agreements.


Plea Agreements and Sentencing Appeal Waivers -- Discussion of the Law


The Supreme Court has, on multiple occasions, found that a criminal defendant may elect to waive many of his or her important constitutional and statutory rights during the plea bargaining process. The courts of appeals have also upheld the general validity of a sentencing appeal waiver in a plea agreement. A sentencing appeal waiver provision does not waive all claims on an appeal. The courts of appeals have found that particular constitutional and statutory claims withstand sentencing appeal waivers in a plea agreement. If a defendant claims that he or she was denied counsel at sentencing, or that he or she was sentenced based on their race, or that their sentence exceeded the statutory maximum, a court of appeals will review the merits of the case despite the existence of a sentencing appeal waiver in the plea agreement.


Scope of Sentencing Appeal Waivers


A plea bargain is an agreement/contract between a prosecutor and a defendant. Therefore, the scope of a sentencing appeal waiver will be based on the languages used in the sentencing appeal waiver provision. Sentencing appeal waivers that are broad in scope require the defendant to waive any sentencing issues on appeal.


Sample Waiver Provision


Here is an example of a broad approach that may be used in a plea agreement:


The defendant is aware that 18 U.S.C. § 3742 affords defendants the right to appeal a sentence opposed against them. With this acknowledgment, the defendant knowingly and willingly waives the right to appeal any sentence within the maximum described in the statute of conviction. The defendant also waives the right to challenge this sentence in any collateral attack, including (but not limited to) a motion brought under 28 U.S.C. § 2255.


The advantage of a broad sentencing appeal waiver is that it prevents the appeal of nearly any Sentencing Guideline issue. For example, in a particular case, the Ninth Circuit dismissed a defendant’s appeal because he had previously agreed to waive his right to appeal in the plea agreement. The court stood on the fact that the language used in the broad waiver was sufficient to reject the defendant's claim that the waiver did not encompass appeal issues that may have risen out of a new law enacted in between the period between a plea and sentencing.


The disadvantage of a broad sentencing appeal waiver is that its use can potentially result in guideline-free sentencing in cases where the defendant pleads guilty. Furthermore, its use may encourage a district court with a less-conscious mind of the law to impose sentences that are in violation of the guidelines set in place. This aspect makes it imperative to guard against the use of waivers of appeal to promote the disregard of the sentencing guidelines set in place.


Use of waiver appeal rights in a manner that results in a sentencing guidelines violation could potentially prompt a court of appeals to reconsider a sentencing decision. In order to avoid these concerns, prosecutors are advised to disregard a waiver and instead, argue the merits of an appeal.


The second kind of sentencing appeal waiver is limited in some respect, most likely with regard to a particular sentence, sentencing range, or guideline application. For example, a sentencing appeal waiver could preclude appeal of sentences consistent with a recommended sentence, sentencing range, or particular guideline application agreed to by the parties. Thus, if the plea agreement provides that the prosecutor will recommend the lower half of the available sentences for a particular offense level applicable to the case (subject to a determination of the criminal history category), the plea agreement could also provide for a waiver of the defendant's right to appeal any sentence imposed within the agreed-upon lower half of the applicable range. Alternatively, the sentencing appeal waiver could be narrowed to apply to a particular guideline application. For example, if the parties agree that a two-level reduction for acceptance of responsibility applies, the plea agreement could provide for a waiver of the defendant's right to appeal any sentence on the basis of such a two-level reduction.


A variation of the above-limited sentencing appeal waiver could be used where the parties do not agree to a particular sentencing or guideline application. The defendant can, nevertheless, agree not to appeal the court's determination of a particular factor. Thus, a waiver of appeal rights could apply to any determination by the court regarding acceptance of responsibility. Or, in a fraud case, where the amount of loss is disputed, the defendant could waive the right to appeal any determination within a specified range. Finally, a waiver could provide that the defendant will not appeal his or her sentence unless the sentence constitutes an upward departure from the guideline range deemed applicable by the sentencing court, in which case the defendant's appeal will be limited to contesting the upward departure.

The above are just some of the restricted types of waivers that can be constructed in appropriate cases; all of these waivers can extend to post-conviction rights. The advantage of a limited sentencing appeal waiver is that it is flexible and can be modified to meet the parties' needs. A limited sentencing appeal waiver may be useful when the government seeks a plea agreement, but the defendant is unwilling to plead guilty without some assurance that he or she will be entitled to appeal an erroneous sentence. The disadvantage of a limited appeal waiver is that it will not reduce the number of sentencing appeals as much as a sentencing appeal waiver that requires the defendant to relinquish appeal of all sentencing issues.


Government’s Right to Appeal


A sentencing appeal waiver in a plea agreement to prevent a defendant from appealing\ does not require the government to waive its right to appeal an adverse sentence ruling. The government may maintain its right to appeal a sentence while still requiring the defendant to waive his or her right to appeal. This position does not violate any of the defendant's rights.


Ensuring that the Waiver is Knowing and Voluntary

A waiver of an important and fundamental constitutional or statutory right must be knowing and voluntary in order to be valid and accepted. Prosecutors are encouraged to ensure that a record reflects the defendant’s knowing and voluntary waiving of his or her right to appeal a sentence. It is also recommended that a plea agreement and the Rule 11 colloquy detail a sentencing appeal waiver. The plea agreement should declare that the defendant fully understands what this type of waiver means, and understands the process.


Still and yet, relying solely on the text of the agreement is unreliable because one could still argue that the text in their agreement was unclear. It is a better practice for a district court to support a plea by specifically referring the defendant to the sentencing appeal waiver provision and then obtaining an express waiver of his or her right to appeal during the Rule 11 hearing.


Other Concerns


The general acceptance of a sentencing appeal waiver in the courts of appeals has been the cause of criminal defendants systematically challenging aspects of the sentencing appeal waiver. One common challenge is the argument that the sentencing appeal waiver was involuntary because the defendant was not aware of his or her actual sentence at the time the waiver was executed and signed. Other defendants have also attempted to find language in the plea that allegedly authorized them to appeal sentences despite the presence of an appeal waiver. One example is that some appeal waivers contain language that the defendant will be sentenced in accordance with or in conformity with the Sentencing Guidelines. Although the purpose of these provisions is to remind the defendant that he or she will be sentenced correctly under the Sentencing Guidelines, some have argued that language like “in accordance” or “in conformity” means that they should have been sentenced correctly under the sentencing guidelines. Criminal defendants have also attempted to find another language in a plea agreement that authorizes them to appeal sentences despite the fact that a sentencing appeal waiver is in place.


If the district court errs in applying the sentencing guidelines toward the defendant, the plea agreement has thus been violated, therefore nullifying the sentencing appeal waiver. However, the Ninth Circuit rejected this argument, stating that the defendant’s position would effectively nullify the sentencing appeal waiver.


Inadmissibility of Pleas--Federal Rule of Criminal Procedure 11(E)(6)


Federal Rule of Criminal Procedure 11(E)(6) prohibits the use of evidence of the following scenarios in any civil or criminal proceeding against the person who made them (there are certain exceptions):

  • A guilty plea that was later withdrawn

  • A Nolo Contendere plea

  • Any statement made in the process of a proceeding under Federal Rule of Criminal procedure 11 in regards to a plea of guilty or nolo contendere

  • Any statement made in the course of plea negotiations or discussions with an attorney for the government


However, the following situations are admissible:

  • Any proceeding where another statement made in the course of the same plea discussion

  • A criminal proceeding for perjury or false statement when the statement was made by the defendant under oath

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