What a Plea Agreement Can and Cannot Promise

Almost every federal conviction is entered by plea, and almost every plea rests on a written agreement. The document looks like a contract and is interpreted largely as one, but it operates inside a rule that limits what the parties may accomplish. Rule 11(c)(1) sets out three forms of agreement, and the differences between them decide who ultimately fixes the sentence.

The three forms of agreement

Under Rule 11(c)(1)(A) the government may agree not to bring, or to move to dismiss, other charges. This is charge bargaining, and its effect is to define the offenses of conviction and therefore the statutory framework within which any sentence must fall. Once the court accepts the plea and the agreement, the dismissal is a commitment rather than a suggestion.

Under Rule 11(c)(1)(B) the government may recommend, or agree not to oppose, a particular sentence or sentencing range, or the application or non-application of a particular guideline provision. The rule states in terms that such a recommendation does not bind the court, and the rule requires that the defendant be told, before the plea is accepted, that there is no right to withdraw if the court declines to follow it.

Under Rule 11(c)(1)(C) the parties may agree that a specific sentence or sentencing range is the appropriate disposition, or that a particular provision does or does not apply. This form binds the court once the court accepts the agreement. The court may accept, reject, or defer a decision until it has reviewed the presentence report, and deferral is the ordinary course.

The guideline standards governing acceptance add a further condition to the third form. Where an agreement specifies a sentence, the court is to accept it only if satisfied either that the agreed sentence is within the applicable guideline range, or that it departs from that range for justifiable reasons stated with specificity. A judge who accepts a figure well below a calculated range is therefore expected to explain the basis, and that explanation becomes part of the record of the case.

The three forms are routinely combined. A single agreement commonly dismisses several counts under the first form, recommends a guideline position under the second, and says nothing binding about the sentence at all. Nothing prevents mixing them, and nothing requires a party to identify which subdivision a given paragraph is written under. Reading an agreement therefore means sorting its promises by what each actually constrains, rather than by the heading it appears beneath.

What happens when a court declines

The consequence of a court declining a proposed disposition depends entirely on which form was used, and the difference is the single most consequential feature of the rule. Where the agreement was a recommendation, nothing happens procedurally: the plea stands, the sentence is whatever the court imposes, and the defendant has no entitlement to reconsider the decision to plead.

Where the agreement was binding and the court rejects it, the rule requires a specific sequence. The court must inform the parties that it rejects the agreement, advise the defendant personally that the court is not required to follow it, give the defendant an opportunity to withdraw the plea, and advise that if the plea is not withdrawn the disposition may be less favorable than the one contemplated.

That sequence is often described as giving the defendant a veto, and in practice it functions as one. It also explains why courts commonly defer the accept-or-reject decision until after the presentence report: a judge asked to commit to a number before knowing the offense conduct and criminal history is being asked to decide without the information the sentencing statute requires be considered.

Deferral has a consequence the parties sometimes overlook. Between the change of plea and the sentencing hearing the defendant has pleaded guilty to an agreement the court has not yet accepted, and the plea itself has usually been accepted separately. Where the court later rejects the agreement and the defendant declines to withdraw, the conviction stands and the sentence is at large. Where the defendant does withdraw, the case returns to its pre-plea posture with the government released from its promises.

Withdrawal in that situation is a right rather than a matter of discretion, which distinguishes it sharply from every other route out of a plea. The ordinary standard for undoing a plea, examined separately, requires a fair and just reason and is often difficult to meet. A defendant whose binding agreement has been rejected needs no reason at all.

What no agreement reaches

Several things lie outside the parties' control regardless of what they write. The guideline calculation is one: the court performs it independently, using the presentence report, and a stipulation between the parties does not displace the probation officer's analysis or the court's findings. The mechanics of that calculation are described in the guideline calculation performed step by step.

Restitution is another. For listed offenses it is mandatory, and a court is not free to omit it because the parties preferred a different arrangement. Supervised release and its conditions are set by the court within the statutory framework. And a statutory minimum applies whatever the parties have agreed, subject only to the narrow routes described in mandatory minimums and what they take from the court.

Reach across sovereigns is the limit most often misunderstood. A federal agreement binds the United States Attorney's office that signed it. It does not bind another district, the Department's litigating divisions unless they join, a regulator running a parallel matter, or any state. Language purporting to extend further is generally read narrowly, and a defendant with multi-jurisdictional exposure needs coordinated resolutions rather than expansive drafting.

Reading the document that is actually signed

Most federal agreements follow an office template, and the terms that matter are usually the ones a template treats as boilerplate. The waiver of appeal and collateral attack rights is one, examined in appeal waivers and the claims they do not reach. The stipulation of facts is another, because it will supply the factual basis and will follow the case into the presentence report.

The breach provisions repay attention as well. A standard agreement defines what counts as a breach by the defendant, states that a breach releases the government from its obligations while leaving the plea intact, and sometimes waives objections to the use of statements made during the negotiation. The consequences of that structure are examined in breach of a plea agreement by either side.

A final observation about integration. Standard agreements recite that the writing is the complete understanding, and the change of plea colloquy asks whether any promise outside the document induced the plea. An answer given under oath that no such promise exists is close to conclusive later. Where something genuinely was agreed and left out, the moment to say so is at the hearing, and there is no reliable second chance.