13. Types of Plea Agreements

In the previous article, I discussed how understanding a plea agreement can help a person make informed decisions with counsel. The next step involves understanding the different types of plea agreements, and what they mean.

Two people may both say they have a “plea deal,” yet face different sentencing possibilities. One agreement may require the prosecutor to recommend a sentence. Another may establish a sentence that binds the judge once the court accepts the agreement.

Before making a decision, you should know which provisions apply in your agreement.

Agreements About Charges

Under Rule 11(c)(1)(A) of the Federal Rules of Criminal Procedure, the government may agree not to bring certain charges or to seek dismissal of existing charges.

For example, a hypothetical agreement might require a person to plead guilty to one count while the government agrees to seek dismissal of three others. That agreement addresses which charges the government will pursue. By itself, it does not establish the sentence.

Dismissed charges also do not necessarily disappear from the sentencing analysis. Conduct underlying those charges may still affect the guideline calculation if it qualifies as relevant conduct.

Ask counsel to explain what the proposed dismissals would change in your case so you have a more complete understanding of the agreement.

Agreements About Recommendations

Under Rule 11(c)(1)(B), the government may promise to recommend a particular sentence or sentencing range, or agree not to oppose a defense request. These provisions can also address how sentencing guidelines or factors should apply.

The judge does not have to follow the recommendation. If the prosecutor makes the promised recommendation, the government has fulfilled that promise even if the judge imposes a different sentence. The judge’s decision not to follow it does not, by itself, allow the defendant to withdraw the guilty plea.

Before accepting this arrangement, ask counsel what he thinks about sentencing possibilities and what arguments the agreement allows you to make.

Agreements That Bind the Court

Under Rule 11(c)(1)(C), sometimes called a “C plea” or “C1C agreement,” the parties may agree to a specific sentence, sentencing range, or specified sentencing provision.

The agreed provision binds the court once the court accepts the agreement. The judge may accept it, reject it, or defer a decision until reviewing the presentence report. If the court rejects the agreement, the defendant must receive an opportunity to withdraw the plea.

This arrangement can provide greater certainty about the agreed terms. Still, read the entire document with counsel. Understand which issues it settles and which remain for the judge.

Compare Two Hypothetical Agreements

Assume that both agreements involve the same offense and that the proposed sentences are legally available.

In the first, the prosecutor promises to recommend 36 months under a type B agreement. The judge may impose a different sentence.

In the second, the parties agree to a 36-month prison term under a type C agreement. If the judge accepts that agreement, the agreed prison term binds the court.

Both documents mention 36 months. The language surrounding that number determines whether it describes a recommendation or a binding term.

An agreement can also combine provisions, such as dismissal of charges and a sentencing recommendation. Ask counsel to identify each commitment separately.

Pleading Guilty Without an Agreement

A person may plead guilty without a negotiated agreement, often called an “open plea” or a “straight plea.” This option carries no negotiated promises from the prosecutor.

The judge determines the sentence, relying upon the Federal Sentencing Guidelines. A guilty plea still gives up trial rights and can limit later challenges, even without a written agreement.

Discuss why counsel considers an open plea appropriate, what alternatives exist, and what consequences could follow.

Apply What You Learn

Understanding these arrangements can help you participate in decisions that shape your comprehensive mitigation strategy. Begin by identifying what the government offers and what it expects in return.

Then consider the preparation ahead.

• What should counsel know about your circumstances?
• What steps can you take to address harm, fulfill responsibilities, and prepare for the future?
• How will you document that work?

Before accepting an agreement, ask:

• Which Rule 11 provisions apply?
• What does the government promise?
• Which terms would bind the judge?
• What happens if the judge rejects the agreement or recommendation?
• What sentencing arguments can we still make?

You do not need to become a lawyer to prepare for these conversations. You do need enough understanding to evaluate counsel’s advice and make deliberate decisions about your future.