Guilty plea agreements and plea bargaining
| Author | Barry Boss/Jeffrey H. Rutherford/Michael J. Proctor |
| Pages | 543-608 |
GUILTY PLEA
AGREEMENTS, PLEA
BARGAINING
13-1
CHAPTER 13
GUILTY PLEA AGREEMENTS
AND PLEA BARGAINING
I. GENERAL PRINCIPLES
A. Introduction:
§13:1 The Post-Booker Landscape and The Sessions Memorandum
§13:1.1 Entering Plea Without Agreement
§13:2 Nature of Agreements
§13:3 Official Recognition
§13:4 Get Agreement in Writing
§13:5 Agreements to Cooperate
B. Timing
§13:6 Reaching Agreement
§13:7 Before Charges Filed
§13:8 After Charges Filed
§13:9 Before Trial Preparation
§13:10 Acceptance by Court
§13:11 Entry of Plea
§13:12 Sentencing
§13:13 Enforceability of Waivers at Sentencing
II. NEGOTIATIONS
A. Preparations
§13:16 When?
§13:17 Initiation
§13:18 Prepare to Meet With Prosecutor
§13:19 Negotiate All Terms
§13:20 Prosecutor’s Core Principle
§13:21 Court Participation
B. Statements During Plea Discussions
1. Admissibility
§13:22 Inadmissible Statements
§13:23 Definition of “Plea Discussions”
§13:24 Statements to Probation Officer
§13:25 Statements to Law Enforcement Officers
2. Use
§13:26 New Indictment or Evidence
§13:27 Impeachment
§13:28 Subsequent Perjury Prosecution
§13:29 Fairness
GUILTY PLEA
AGREEMENTS, PLEA
BARGAINING
Federal Criminal Practice 13-2
C. Agreement
§13:30 Contents
§13:31 Objectives
§13:32 Waiving Right to Appeal Sentence
§13:33 Victim Involvement in Plea Negotiations
III. TYPES OF AGREEMENTS
A. Generally
§13:40 Possible Types
§13:41 Cooperation
§13:42 Agreements Requiring Insulating Statements
B. Charge Agreements
§13:43 Authority
§13:44 Prosecutor’s Ability to Negotiate
§13:45 Court’s Acceptance or Rejection
§13:46 Effect of “Relevant Conduct” Sentencing Guideline
§13:47 Determine Potential Exposure Before Client Enters Charge Agreement
C. Sentence Agreements
1. Overview
§13:50 Government’s Positions
2. Policy Statements
§13:51 Application
§13:52 Not Binding
§13:53 Post-Booker Acceptance of Sentencing Agreements
3. Specific Types of Agreements
a. Agreed-Upon Sentence
§13:54 In General
§13:55 Effect of Government Agreement
§13:56 Elect Agreed-Upon Sentence
§13:57 When to Consider Withdrawing Plea
b. Government Recommends Particular Sentence
§13:58 In General
§13:59 Demonstrate That Sentence Is Consistent With Guidelines
§13:60 Sentence Departs or Varies From Guideline Range
§13:61 Court Warning Regarding Inability to Withdraw Plea
§13:62 When Defendant Can Withdraw Plea
c. Prosecutor Will Not Oppose Request
§13:63 In General
§13:64 Effect on United States Attorney’s Bargaining Policy
d. Government Makes No Recommendation
§13:65 In General
§13:66 Factual Statements
§13:67 Withdrawal of Plea
4. Stipulations of Fact
§13:68 Affecting Sentencing Guidelines
§13:69 Does Not Bind Court
§13:70 Guideline and Non-Guideline Factors Susceptible to Stipulation
§13:71 Bases
§13:72 Nonexistence of or Inability to Prove Facts
§13:73 Do Not Increase Sentence
§13:74 Challenge Inconsistent Presentence Report
GUILTY PLEA
AGREEMENTS, PLEA
BARGAINING
13-3 Guilty Plea Agreements and Plea Bargaining
IV. BREACH
A. In General
§13:80 Burden of Proof
B. By Government
§13:81 Construction of Agreement
§13:82 Remedies
§13:83 Examples
§13:84 How and When to Raise
§13:85 Remedy to Request
C. By Defendant
§13:86 Effect
§13:87 Examples
§13:88 Have Court Review Government Determination
§13:89 Remedies
V. COURT’S REJECTION
§13:95 Reasons
§13:96 Procedure
§13:97 Effect on Guideline Range
VI. FORMS
Form 13A: Plea Agreement
Form 13B: Agreement Regarding Sentencing
Form 13C: Agreement to Dismiss or Not Prosecute Offenses (Charge Agreement)
Form 13D: Fact Stipulation
Form 13E: Cooperation Plea Agreement
Form 13F: 11(C)(1)(C) Plea Agreement
Form 13G: Motion for Specific Performance
Form 13H: Reply to Opposition to Motion for Specific Performance
Form 13I: Summary of Plea Agreement
Form 13J: Ashcroft Sentencing Memorandum (Superseded)
Form 13K: Holder Sentencing Memorandum (Superseded)
Form 13L: Sessions Sentencing Memorandum
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