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Understanding Federal Plea Agreements
The federal plea agreement is a contract written by the party that holds every structural advantage, presented to the party that holds almost none.
That characterization is not a complaint. Federal Rule of Criminal Procedure 11 provides the procedural architecture, and the architecture is sound. The problem is not the rule. The problem is what the rule permits when one side drafts the document, sets the timeline, and controls the most consequential motion that will ever be filed in the case. Fewer than three percent of federal criminal cases proceed to trial. The remaining dispositions pass through the plea agreement, which means the document itself, not the courtroom, is where most federal cases are decided.
In most of the cases that reach this firm, the client has already received a draft. The document is sitting in the attorney’s office or, in some cases, in the client’s own inbox, forwarded without comment. The question at that point is not whether a plea will be entered. The question is whether the terms of this particular agreement reflect the best outcome available or whether they reflect the first offer the government chose to extend. Those are different instruments, and the distance between them is where defense counsel performs the work that determines the outcome.
Rule 11 and the Three Types of Agreement
Federal plea agreements operate under Rule 11(c)(1) of the Federal Rules of Criminal Procedure, which establishes three categories. The distinction between them is not academic. It determines whether the sentence a defendant expects is the sentence a defendant receives.
Under Rule 11(c)(1)(A), the government agrees to dismiss or not bring certain charges. Under Rule 11(c)(1)(B), the government agrees to recommend a particular sentence or sentencing range, but the recommendation is advisory. The court is free to disregard it. The defendant cannot withdraw the plea if the judge imposes something different. Under Rule 11(c)(1)(C), the parties agree to a specific sentence or range, and the agreement binds the court once accepted. If the court rejects it, the defendant may withdraw.
Most federal plea agreements are (B) agreements. The government recommends a sentence. The judge decides. The defendant who signs a (B) agreement is accepting uncertainty as a condition of the plea, and that uncertainty extends to whether the final sentence will resemble the one discussed during negotiations at all.
Some districts are reluctant to accept (C) agreements. The Eastern District of Michigan, for example, has indicated that it does not accept them. Other courts will consider a (C) agreement but examine the terms with a scrutiny that can feel, to both sides, like a negotiation in which neither party has been invited to participate. The degree to which a binding agreement functions as binding depends on the court’s willingness to bind itself.
The Factual Basis
Before a federal court accepts a guilty plea, Rule 11 requires the court to determine that a factual basis exists. The requirement sounds procedural.
The factual basis section of a federal plea agreement is the government’s narrative of the offense. It is the section of the document that determines, more than any other, what happens at sentencing. The defendant agrees in writing to a version of events that will follow the case forward, and the stipulations contained in the factual basis (particularly the loss amount in fraud and white collar matters) can shift the guidelines range by years. The factual basis section is where the real sentencing negotiation occurs, even when the parties believe they are negotiating the charges.
In practice, the loss amount, the defendant’s mental state, and the scope of the conduct are each a point of negotiation. A defendant who pleads to a single count of wire fraud but stipulates to a loss amount in the millions has not simplified the case. The defendant has accepted the sentencing exposure the government wanted without requiring the government to prove it.
Where the parties cannot agree on a specific figure, the agreement will sometimes stipulate to a range and reserve the right to argue at sentencing. The plea agreement permits this disagreement to continue past the plea, which is better than a stipulation that resolves it on the government’s terms. But it introduces another variable at a stage when most defendants want fewer variables. This is a compromise that permits the disagreement to continue past the plea, which most defendants regard as preferable to a stipulation that resolves it on terms they did not choose.
The Appellate Waiver
The provision that receives the least attention during negotiation, and that carries the most consequence after sentencing, is the appellate waiver.
Nearly every federal plea agreement contains a provision in which the defendant waives the right to appeal the conviction and the sentence. The waiver is broad. In most agreements, it permits appeal only for claims of ineffective assistance of counsel or for a sentence exceeding the statutory maximum. Everything else is foreclosed. The defendant agrees to this before the sentence is known, before the presentence report has been prepared, before the judge has spoken a single word about the resolution of the case.
Whether this arrangement is constitutionally sound is a question the Supreme Court has been approaching for years without settling. In Garza v. Idaho, the Court acknowledged that appellate waivers are not an absolute bar on all claims but declined to specify what exceptions might be required. The circuit courts, left to construct the boundaries, have fractured. The Fifth, Sixth, Tenth, and Eleventh Circuits enforce waivers with limited exceptions. Other circuits have recognized a broader “miscarriage of justice” standard that permits appeal when enforcement would produce an outcome the agreement could not have anticipated.
Hunter v. United States, argued before the Supreme Court on March 3 of this year, may resolve the split. Munson Hunter pleaded guilty to a single count of aiding and abetting wire fraud. His agreement contained a standard appellate waiver. At sentencing, the judge imposed a condition of supervised release requiring Hunter to take any mental health medications prescribed by a physician, and Hunter objected on constitutional grounds. The judge then told Hunter he had a right to appeal. The government did not object. Hunter appealed. The Fifth Circuit dismissed, holding that the written waiver controlled.
At oral argument, several justices expressed skepticism toward the government’s position. Justice Gorsuch pressed the government on whether the waiver would hold if the sentence were motivated by racial discrimination. The government said it would. Justice Kagan raised the Court’s supervisory powers as a potential basis for a miscarriage of justice exception that would not depend on contract law at all. Whether the Court intended this line of questioning to signal a result or merely to test the government’s position is a question worth considering.
A defendant who waives the right to appeal before the sentence exists is agreeing to accept an outcome that has not yet been composed. The waiver is a contract term written in the present tense about a future event.
For practitioners, the stakes are immediate. If Hunter establishes a broader exception, the standard appellate waiver language that appears in federal plea agreements across the country may require revision. If it does not, the waiver remains what it has been: a provision that forecloses review at the moment when review matters most. I am less certain than some of my colleagues about how the Court will rule. The oral argument suggested more resistance than comfort.
Cooperation Agreements and the 5K1.1 Motion
What the client needs to understand, before any proffer session, before any debriefing, before any conversation with investigators, is that once the information is disclosed, it cannot be withdrawn. A federal plea agreement that includes a cooperation provision is a different instrument from one that does not. The mechanics are familiar. The consequences are not.
Under Section 5K1.1 of the Sentencing Guidelines, the government may file a motion for a downward departure if the defendant has provided substantial assistance in the investigation or prosecution of another person. Under 18 U.S.C. § 3553(e), that motion can authorize the court to sentence below a statutory mandatory minimum. Only the government can file the motion. The defendant cannot file it. Defense counsel cannot file it. If the government concludes the cooperation was not substantial, the motion is never filed, and the defendant has no mechanism to compel it, except in cases of unconstitutional motive or bad faith.
The cooperation agreement is a separate contract within the plea agreement, or appended to it. The defendant agrees to provide information, to submit to debriefings, to testify. The government agrees to evaluate the cooperation and, if it deems the assistance substantial, to file the motion. The word “substantial” has no statutory definition. In United States v. Isaac, the Third Circuit held that the government’s obligation to evaluate in good faith is implicit in any such agreement. That standard, while reassuring in principle, is difficult to enforce.
If the cooperation agreement collapses (because the government determines the information was untruthful, because the defendant fails a polygraph, because the government simply concludes the assistance was not substantial enough), the statements from the proffer session are generally protected by use immunity and cannot be introduced directly against the defendant. But derivative evidence, what the government learned because of what was said, occupies a different category, and the protections there are thinner than most defendants realize.
We approach the cooperation decision differently than some firms. Before a client sits for a proffer, we conduct an assessment of the information’s value, its corroboration, and the risk that the government will find the cooperation insufficient. In several cases, we have recommended against cooperation where the guidelines exposure without a 5K1.1 departure was manageable and where the client’s information, while truthful, was unlikely to meet the government’s threshold. Not every client with information to offer should offer it.
Timing and the Presentence Report
Six months after the agreement is signed, the presentence report arrives, and the plea agreement meets the court’s independent calculation.
The United States Probation Office prepares the report. The probation officer is not bound by the stipulations in the plea agreement. If the officer calculates a different loss amount, a different offense level, or a different criminal history category, the court may rely on the report. The parties may object. The court rules on the objections. This stage is where many defendants learn that the plea agreement established a floor, not a ceiling.
The sentencing hearing follows. The judge exercises discretion under 18 U.S.C. § 3553(a), considering the nature of the offense, the defendant’s history, and the need for deterrence. The guidelines range is advisory. The judge may vary upward or downward. In a (B) agreement, the defendant has no recourse if the variance goes in the wrong direction.
The Contract Before the Sentence
Every federal plea agreement is an attempt to impose certainty on a process that resists it. The government seeks a conviction without the expense of trial. The defendant seeks a sentence lower than trial might produce. The court, in the end, is bound by neither party’s expectations.
The best agreement is one whose terms were contested, whose factual basis was negotiated with the precision it demands, and whose provisions reflect the disposition of this case rather than a template applied to every defendant in the district. The worst agreement is one that was signed without independent analysis, which happens more frequently than any participant in the system would prefer to acknowledge.
A first consultation assumes nothing and costs nothing. It is the point at which the agreement, whether drafted or still under discussion, receives the examination the document requires. The question is whether this agreement, with these terms, serves this defendant, or whether it serves only the interests of the party that wrote it.