Tuesday, February 1, 2005

Responding to Booker: Plea Agreement Permits Withdrawal If Judge Sentences Outside the Agreed Sentence Range

A plea agreement announced by the U.S. Attorney's Office for the Central District of California (Los Angeles) contains a provision I had not seen in a federal case during the Guidelines era: a stipulated sentencing range that, if not followed by the judge, permits either party to withdraw from the plea bargain.  A press release issued by the USAO on Jan. 31 about the plea of Scott Brabson to commercial bribery and honest services fraud charges contains the following language:

Brabson pleaded guilty before United States District Judge John F. Walter, who is scheduled to sentence the defendant on April 11. While the four charges he pleaded to carry a maximum possible penalty of 35 years in federal prison, the government and Brabson have agreed that the sentence should be between 57 and 71 months in prison. If Judge Walter believes the sentence should be outside this range, either the government or the defendant is entitled to withdraw from the plea agreement.

Under the Guidelines, neither party controlled the factual determinations that went into the Guidelines calculation, which was decided by the judge based on the PSR (along with any submissions by the parties). While the parties could agree to certain conduct and amounts, that was not binding.  This provision in the plea agreement effectively constrains the judge's sentencing discretion, at least if the court does not want to have the case go to trial by giving a sentence far enough outside the range to trigger a withdrawal by one side.  Plea agreements in Michigan, and no doubt in other states, contain similar sentencing range provisions, but these types of agreements were not a feature of federal prosecutions because the Guidelines were mandatory, thereby providing the measure of certainty each side wanted. The sentencing range in the Brabson case appears to reflect what the Guidelines provide for his offenses, based on the dollar figures involved in the case. If a stipulated sentencing range is the new approach by the Department of  Justice, it will be interesting to see if judges react positively or negatively in light of Booker's restoration of sentencing discretion to federal judges. (ph)


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