Who’s on First?

It’s critical that every defense lawyer remember “who’s” on first and “what’s” on second in crafting plea agreements. Otherwise, “I don’t know” could come back to bite you.

Old Abbott & Costello bits are fun to remember, but there’s nothing funny about facing a sentencing judge who’s about to sentence your client to twice the imprisonment you told your client he would receive. Today, the Fifth Circuit unequivocally affirmed that every player has a role in the drama of sentencing. The Fifth Circuit held a sentencing agreement between the prosecutor and defense attorney was not binding on the probation office, and therefore the court was free to accept the probation officer’s recommendation and sentence the defendant to twice what he and his lawyer expected. Many of us have been in the same or similar situation and have faced unpleasant and sometimes shocking revelations in court, so I don’t have anything but empathy for my brother warrior.

In United States v. Alberto Loza-Gracia, No. 11-40127, the defendant pled guilty pursuant to a written, non-binding plea agreement that included a provision that the defendant’s “base offense level” would be 26. After a reduction of offense levels for acceptance of responsibility, the defendant and his lawyer expected the guideline range to be 92-115 months imprisonment. Then came the presentence report. The probation officer’s report found that the defendant qualified as a career offender, with a recommended range of imprisonment of 188-235 months!

Arguing “bait and switch”, the defense attorney did his best in objecting to the PSR, including arguments that the prosecutor’s agreement should bind the probation office, and that the defendant relied (detrimentally) on the prosecutor’s agreement in entering the plea. The defendant moved to withdraw his plea on the basis that he believed the prosecutor had the authority to bind the government as a whole, and therefore the government breached its plea agreement. The prosecutor “responded simply, stating: ‘We stand by our agreement’.”

The court rejected all defense objections, refused to allow withdrawal of the plea, and sentenced the defendant to 188 months imprisonment, more than twice what Mr. Loza-Gracia expected to receive. The Fifth Circuit analyzed the verbiage of the plea agreement and plea hearing colloquy, and affirmed the district court, citing to the “well-established separate organizational structures of the U.S. Attorney’s Office and the U.S. Probation Office.” Basically, you cannot rely on a prosecutor’s guideline agreements to ensure a particular sentence, as there’s another key player in this drama.

All of us should take heed, as a well-intentioned and hard fought guideline agreement with a federal prosecutor may not reach the ending we anticipate. In the end, the only thing that can ensure such a result is a Rule 11(c)(1)(C) agreement, assuming your prosecutor and court allow such a player into the courtroom.