New York Federal Criminal Practice Blog
May 20, 2008

SDNY Judge Holds Misleading Pimentel Letter May Justify Departure Below Sentencing Guidelines

Pimentel letters are key documents when a defendant pleads to an indictment without any plea agreement.  Written by the prosecutor, it lays out the government's calculation of a defendant's likely sentence under the Sentencing Guidelines.  Although not a binding contract, it is often relied upon by defendants in entering guilty pleas.  Its goal, as articulated in the Second Circuit's Pimentel decision, is "to ensure that guilty pleas indeed represent intelligent choices by defendants."  As such, as Judge Scheindlin observed in United States v. Allen, 07 Cr. 235 (SAS), 2008 WL 1944549 (S.D.N.Y. April 30, 2008), a misleading Pimentel letter "damages the integrity of our justice system."

In Allen, the defendants pled without a plea agreement to crack distribution.  Their Pimentel letters, "based on information presently known to [the government]," estimated their offense conduct, "including all relevant conduct," as involving between 150 and 500 grams of crack, yielding a base offense level of 32.  Subsequently, the defendants' presentence reports, using information supplied by the government, calculated the base offense level at 38, and determined sentencing ranges that were approximately twice the ranges contained in the Pimentel letters.  The defendants asked that the government be bound by its statements in the Pimentel letters and precluded from proving the higher offense level.

In a blistering decision, the district court found that the government had "struck hard" at the defendants by misleading them:  "Prior to the issuance of the Pimentel Letters, the Government almost certainly knew all of the relevant facts, yet the letters (allegedly based on the Government's knowledge) did not square with the Government's determination of relevant conduct."  The defendants had therefore been "fundamentally mistreated," and the government had "fallen substantially short of the 'meticulous standards of both promise and performance' to which it must conform."

She rejected, however, the defense request that the government be estopped from proving the higher offense level, pointing out that "[t]he Pimentel Letters did not form a contract between defendants and the Government."  Instead, she opined that the appropriate remedy here for what she termed "a violation of our notions of fundamental fairness" may be a downward departure or below-Guidelines sentence.  She put the parties on notice of her intention to consider such a departure, and also gave the defendants an opportunity to withdraw their guilty pleas.  Sentencing, absent plea withdrawal, will occur in June. 

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