§7 Memorandum of Plea Agreement


The attorneys for the government and counsel for the Defendant are parties to a binding contract with factual and legal stipulations in a plea agreement pursuant to Fed.R.Crim.P. 11.

The Defendant acknowledges the charges in the indictment, has read the charges and understands the nature and elements of the offenses. The Defendant must enter a voluntary plea of guilty to one or more of the charges in exchange for the dismissal of other counts or charges after sentencing. These should be negotiated in advance to secure the greatest advantage for the Defendant. In addition to negotiations regarding the charges, the parties must negotiate certain factual and legal stipulations regarding sentencing along with all enhancements and relevant conduct.

A. Voluntary Plea of Guilty and Penalties

The Defendant must knowingly, voluntarily and intelligently enter a plea of guilty to one or more of the charges. The Defendant must admit to the factual stipulations similar to those stated in the indictment even,though some or many of the facts may be incorrect, mistaken or exaggerated.

The Defendant must agree that the plea of guilty was not the result of force or threats even though in practice the prosecutor may use the plea agreement itself as a threat in lieu of more severe punishment in the event of a trial and conviction. Commonly the prosecutor uses the threat of enhancements and additional imprisonment as an “incentive” for the Defendant to enter a plea of guilty and avoid trial. This is certainly advantageous for the prosecution, but not always so for the Defendant.

The Defendant must understand the statutory penalties to which he is pleading guilty including the fines, restitution, special assessments and terms of supervised release, if applicable. The parties must agree that the charges adequately reflect the seriousness of the actual offense and will not undermine the statutory purposes of sentencing.

There will also be a clause reserving the right to argue that the three-level reduction no longer applies in the event of new information related to the issues set forth in the plea agreement by the prosecution. This should not be necessary providing the plea agreement incorporates all the relevant conduct pursuant to U.S.S.G. 51B1.3 and any contemplated enhancements or departures.

B. Factual Stipulations and Calculating Sentence Guideline

Factual stipulations are incorporated in the plea agreement along with the choice of the applicable guidelines book. Generally, the Defendant has the choice of the guidelines book from the last year of the offense on the indictment or the current guidelines book and choosing the one with the lowest sentence guideline calculation.

To calculate a sentence guideline, combine the particular United States Sentencing Guideline section “base offense level” with any stipulated “enhancements” with any victim’s “loss” calculations from the applicable chart. To avoid surprise at sentencing incorporate all enhancements in the plea agreement.

In addition, various offenses group or don’t group when combined, and might result in an enhancement. Stipulations regarding “grouping” ‘should be agreed by the parties in a plea agreement.

The combined offense level is determined by adding the following: (1) base offense level; (2) victim loss calculations; (3) enhancements and relevant conduct; (4) grouping.

C. Acceptance of Responsibility

By entering a plea of guilty the Defendant demonstrates “acceptance of responsibility” for the offense pursuant to U.S.S.G. §3E1.1 a) and is entitled to a two-level reduction along with a one-level reduction in the sentence guideline for “super-acceptance” of responsibility pursuant to U.S.S.G. §3El.1 (b) (2) by permitting the prosecution to avoid preparing for trial. This is applied at sentencing as a stipulation of acceptance.

To avoid surprise at sentencing include an agreement by the prosecution to “not object” to a finding by the probation officer in the pre-sentence report or to a finding by the Court that the Defendant is entitled to the combined three-level reduction.

D. No Downward or Upward Departures Argued at Sentencing

The most important sentencing stipulation is that neither the Defendant or the prosecution will seek downward or upward departures outside the range established by the applicable guideline sentence.

“Defendant agrees that he will not seek a downward departure outside the range established by the applicable guidelines, as determined by the parties herein; the Government agrees that it will not seek an upward departure outside the range established by the applicable guidelines, as determined by the parties herein.”

Without this provision, as many plea agreements are lacking, the prosecution agrees to a particular guidelines range in the plea agreement, then argues for enhancements and upward departures not agreed to or limited by the plea agreement.

Many Defendants enter plea agreements contemplating a “deal” only to find the deal is effectively cancelled at sentencing with unanticipated enhancements which make the penalty as severe or even worse than contemplated if the Defendant had gone to trial and been convicted by a jury or judge. There is no advantage for a Defendant to enter a plea agreement and waive trial and appeal rights unless there is a substantial reduction in the contemplated sentence and there are no legal issues to be raised on appeal.

E. Evaluating a Plea Agreement

Whether or not to enter a plea agreement is conditioned primarily on the following issues: (1) innocence or guilt of Defendant; (2) contemplated sentence of imprisonment and restitution, if any; (3) preserving or waiving trial rights; (4) preserving or waiving post-conviction relief in a 28 U.S.C. §2255 proceeding; (5) preserving or waiving direct appeal rights and any non-jurisdictional issues.

If the Defendant is indeed guilty and the facts support the admission of guilt, then a plea agreement may be advantageous for both parties if there is a “deal” offered by the government. The Defendant can always enter a plea of guilty before the Court even without a plea agreement and avoid trial.

There is no requirement that the government offer a plea agreement. This is left exclusively up to the discretion of the prosecution, a t though in the interest of administering justice, most courts look favorably upon “settlements” in the interest of time and the management of the court’s resources. Rarely, will the prosecution refuse to respond to a fair offer by counsel for the Defendant to settle the case without trial. But defense counsel must advocate for the Defendant and negotiate some advantage for the Defendant over a straight lea of guilty.

If the Defendant is indeed innocent, but the facts or the political nature of the charges support a conviction if the case goes to trial, then despite being innocent the Defendant must consider the advantages of a plea agreement. The agreement must provide the innocent Defendant the lowest possible sentence of imprisonment and a clear reduction of risk than going to trial and being convicted. This is a strategic consideration given the bureaucratic nature of the criminal justice system and its tendency to convict not only the guilty but the innocent as a matter of routine practice.

In theory the Defendant is innocent until proven guilty, but in practice the innocent are convicted and sent to prison everyday as often as the guilty. This is a risk that every criminal Defendant realizes the moment they are incarcerated. This factor must be weighed along with other factors when determining whether or not to enter into a plea agreement, or go to trial and risk conviction despite his innocence.

Entering a plea agreement means admitting guilt and the facts supporting a conviction as stipulated in the agreement. Entering a plea agreement means waiving all Sixth Amendment trial rights. Entering a plea agreement generally means waiving all direct appeal rights and post-conviction relief.

If there are legal issues, then counsel for the defendant must raise these issues pre-trial and get them on the record for direct appeal. If counsel fails to do so, then it is grounds for post-conviction relief in a section 2255 proceeding based on ineffective assistance of counsel.

If the Defendant enters a plea of guilty or enters a plea agreement, all pre-trial, non-jurisdictional defects, constitutional violations of rights and judicial rulings are waived. To preserve these issues, the Defendant may enter a conditional plea of guilty or go to trial. Rarely, will the prosecution offer a plea agreement based on a plea of nolo contendere.

F. Restitution

If there are victims and restitution is an issue, the Defendant must agree to the terms and amounts. The Defendant must cooperate with the Financial Litigation Unit or other authorized representatives and provide information on all his financial assets in which the Defendant has an interest, direct or indirect, whether held in Defendant’s own name or in the name of another, in any property, real or personal. Said condition is in effect until the fine or restitution is paid in full.

G. Court Not Bound By Plea Agreement

Although the parties may agree to all the stipulations in the plea agreement, the Court is not bound by any of them, and may, with the aid of the pre-sentence report, determine the facts relevant to sentencing. In the event the Court does not accept the plea agreement, the Court must afford the Defendant the opportunity to withdraw the guilty plea. See, United States v. Hyde, 52d U.S. 670, 674-78, 137 L.Ed.2d 935, 937, 117 S.Ct. 1630 (1997).

If the Court accepts the plea agreement, the Defendant retains the right to appeal the sentence imposed under 18 U.S.C. §3742(a) if it exceeds the guideline range in the plea agreement.

“If the Court imposes a sentence greater than specified in the guideline range determined by the parties herein…the Defendant retains the right to appeal the portion of the sentence greater than specified in that guideline range and the manner in which that portion was determined under Section 3742 and to challenge that portion of his sentence in a collateral attack.”

Except for the right to appeal the sentence described above, the Defendant waives the right to appeal on any other non-jurisdictional issue or ground whatsoever in exchange for the concessions made by the prosecution.

The Defendant waives the right to challenge the sentence in any collateral attack, including, but not limited to, a motion under section 2255 except for a claim of ineffective assistance of counsel. These are standard provisions of most plea agreements.

If the Defendant must preserve legal issues for direct appeal or collateral attack, then a plea agreement is not recommended in any case.

Entering a plea of guilty and the plea agreement itself, are distinct and considered separately by the Court. If a plea of guilty is accepted by the Court, the plea agreement is deferred for consideration until after the Court has considered the pre-sentence report at sentencing. Should the Court refuse to accept the plea agreement, neither party is bound by it, and the plea agreement is null and void. Should the government fail to abide by the terms of the agreement, the Defendant must be re-sentenced by a different judge on remand. See, United States v. Johnson, 187 F.3d1129, 1135-36 (9th Cir. 1999).

A general waiver of appeal does not waive the right to bring a section 2255 motion, unless the plea agreement does so expressly. United States v. Bunez, 223 F.3d 956, 959 (9th Cir. 2000), cert.denied, 534 U.S. 921 (2001).

Plea agreements are subject to contract law standards of interpretation. In determining whether a plea agreement has been broken, courts look to what was reasonably understood by the defendant when he entered his plea agreement. If disputed, the terms of the agreement will be determined by objective standards. United States v. Kamer, 781 F.Zd 1380 (9th Cir. 1986).

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