New York Federal Criminal Practice Blog
March 23, 2010

Second Circuit Holds that Prosecutor’s Advocacy of Guideline Higher than Plea Agreement Is Not Plain Error

Plea-bargaining is critical to the administration of federal criminal justice, since over 95% of federal criminal cases end in a guilty plea.  In turn, good faith – especially on the part of the most powerful party in that process – is key to maintaining that high non-trial disposition rate.  Why would thousands of defendants plead guilty to plea agreements, like the standard plea agreement in the Eastern District of New York, that permit the government to advocate a higher guideline at sentencing than the one carefully calculated in the plea agreement?  Well, because there is a good faith understanding that the prosecutor will not use this provision to support a higher guideline at sentencing absent extraordinary circumstances, such as new facts coming to light, or the application of some arcane, unanticipated guideline.  When, as in United States v. Habbas (discussed here) and United States v. MacPherson, 590 F.3d 215 (2d Cir., December 30, 2009), the prosecutor does advocate a higher guideline at sentencing on basic, predictable, nuts and bolts issues like drug type and quantity or managerial role, the entire plea bargaining process, and the manageability of judges’ trial calendars, is in jeopardy.  Luckily, MacPherson can be distinguished on its facts, but it highlights the troubling problems in the standard EDNY plea agreement, the need to avoid pleading under a plea agreement unless it genuinely gives the defendant a benefit, and the importance of obtaining some additional assurances that the prosecutor will stand by the guideline estimate in the agreement. 


MacPherson pled guilty to conspiracy to import heroin and cocaine, under a plea agreement that estimated his guideline range to be 120 to 135 months, and in which he stipulated that his sentence would be calculated using 15 kilograms of cocaine.  The agreement provided that the guideline estimate was not binding on the government, and that the defendant could not withdraw his plea if the government argued a different guideline at sentencing.  During his allocution, the defendant admitted to “repeatedly traveling to Peru to make arrangements to purchase heroin and meeting a courier at [JFK] who was carrying ten kilograms of cocaine.”

The Probation Department estimated an offense level that was 6 levels higher than the one in the plea agreement – two additional levels arising from the inclusion of 7 kilograms of heroin in the offense calculation, and 4 levels for his managerial role in the scheme.  At sentencing, the defendant objected to these enhancements, but not on the basis of the inconsistency with his plea agreement.  The government advocated the Probation Department’s estimate, which the district judge adopted.  She imposed a sentence of 262 months (at the high end of the new guideline range).  On appeal, MacPherson argued that the government had violated his plea agreement in advocating the higher guideline at sentencing. 


Reviewing the claim on a plain error standard (as required by the Supreme Court’s recent ruling in Puckett), and noting its conflicting rulings on this issue in Habbas and Palladino, the Court held that the prosecutor’s conduct here (which was similar to that upheld in Habbas) “cannot have precipitated plain error, if any error at all.”  In particular, there was no plain error despite the defendant’s stipulation in his plea agreement that his sentence would be based on 15 kilograms of cocaine:

[W]hereas typical contract stipulations state that the parties stipulate to some agreed upon terms, the agreement in this case states only that the defendant stipulates to a sentence based on the cocaine quantity. In any event, the agreement and the plea colloquy put the defendant on notice that the Pimentel estimate was not binding on the prosecutor and that if the estimate was wrong, the plea could not be withdrawn. In such circumstances, there was no plain error.

In his concurrence, Judge Newman went one step further, finding that “there [was] no error at all,” citing clear language in the plea agreement and during the plea colloquy that the government could advocate a higher offense level at sentencing than the estimate in the plea agreement. 

The Court also found that the district court’s sentencing at the high end of the new guideline was not unreasonable. 


MacPherson can be distinguished, both on the grounds that the defendant did not claim a violation of the plea agreement at the district court level, and also because the defendant allocuted at his plea proceeding to much of the facts underlying the enhancements advocated at his sentencing.  But the bottom line is that the defense should not put too much stock in a plea agreement that permits the government to repudiate its own guideline estimate, and in which the government does not stipulate to the facts underlying that estimate. 

Richard Willstatter adds:

In light of MacPherson and Habbas, defense lawyers should be sure to ask for a written agreement in which the US Attorney’s Office agrees to advocate for the guideline range estimated in the plea agreement absent new facts, or, if that is not forthcoming, to make an oral statement on the record before the plea is entered to the effect that the government will not later advocate a higher sentencing range unless the government learns of a factual basis for such a higher range after the plea is entered.  If there is reluctance to agree to either of these, the client should be counseled that the government may do an about-face at sentencing, against which the client may have little recourse.

MacPherson underlines the importance of figuring out whether a plea agreement (as opposed to a plea without an agreement) actually gets you anything.  If the standard agreement does not bind the government and if there is a possibility that a higher range could be found, as was readily apparent in MacPherson’s case, reliance on the agreement is risky and dependent on the integrity of the assigned prosecutor (or her supervisor).   It is in those cases where the government might advocate for a higher range – but agrees to forego such arguments in exchange for a plea – that a binding plea agreement is most useful.


Lawyers: Todd Merer (not lawyer in district court) (defendant); AUSAs Susan Corkery, Licha Nyiendo

See Archives for all posts since September 2007.