Considering a Plea

Considering a plea agreement requires a serious analysis of the strengths and weaknesses of the evidence in a case. If the U.S. Attorney’s Office has weak evidence of the charges, for example conspiracy, or if they are proceeding based on a theory of biased or corrupt witnesses, it may be worthwhile to take a case to trial. However, if the evidence against the defendant is overwhelming and he/she faces significant prison time, a cost-benefit analysis may convince a defendant to accept responsibility and plead guilty by cooperating with the prosecution for reduction in prison time and other cooperation points.

Statistics as far back as 2001 show that a downward departure was granted pursuant to a plea agreement in approximately 18% of all federal cases. In a plea agreement, the government typically agrees to recommend a specific sentence or guideline range. The federal sentencing guidelines vary vastly based on the type of crime, the significant criminal history, the sophistication of the crime, whether the defendant was a leader or organizer, and whether the victim was vulnerable or subject to specific class that merits additional protection. A defendant is entitled to a two level reduction if he/she confesses upon arrest or shortly thereafter. The third level reduction is also to be applied if the defendant satisfies the criteria of either U.S.S.G. § 3E1.1 or (b)(2). This applies if the defendant offers information about his offense in a timely fashion. This is why it is critical to secure counsel immediately upon arrest to start working on disposition options and sentencing reductions in the event an outright dismissal seems unlikely.

There have been instances where a defendant was deemed eligible for a downward departure even after taking the case to trial and denying guilt. In such a case, the court grants a two-level downward departure on the basis that defendant demonstrated an acceptance of responsibility. He/she allowed a declaratory judgment to be made in a civil context as to the legality of his business operations and discontinued them once a judgment was issued against him.

It is also possible for a defendant to obtain downward departure prior to sentencing under U.S.S.G. Section 5K2.0, by demonstrating a commitment to cleaning up his/her life voluntarily during the time frame prior to the indictment.