Senior District Court Judge Tanow in US v. Beals, No. 10-5264 (6th Cir. Oct. 16, 2012) (available here), has an thought provoking concurring opinion discussing plea agreements.
In this case, Miller’s plea agreement contained a waiver of appeal unless her eventual sentence was “above the sentencing guideline range as determined by the district court.” The Court finds, and I agree, that based on language of her waiver, Miller’s eventual sentence was not above the guidelines range as determined by the district court — though the district court’s determination of the guidelines range was contrary to the stipulated facts in her plea agreement.
The Court holds that Miller “could have bargained” for a narrower waiver, for instance by including language that she reserved the right to appeal whether “the Court incorrectly determined the guidelines range.” The Court thus implies that Miller consciously chose to forego a more narrow waiver for some unstated advantage, or that she was simply deficient in her bargaining and unnecessarily exposed herself to the possibility of a higher sentence.
My point is not to question the Court’s holding that Miller’s waiver was knowing and voluntary, but rather to note that requiring sophisticated bargaining by criminal defendants to retain the right to appeal a sentence likely contributes to uncertainty regarding whether a plea was knowing or voluntary. It does not seem to me that justice is served by permitting plea agreements that (bargaining aside) result in defendants agreeing to a plea that they did not intend or properly understand. Moreover, defendants may have less incentive to accept guilty pleas if they are concerned that they are actually at risk of a higher sentence than they thought had been agreed to in their plea agreement.
I would recommend that counsel for both defendants and the government strive to create plea agreements that state in plain terms the maximum possible sentence a defendant might receive. Defendants who plead guilty based on an agreement that provides a clear statement of the maximum likely sentence are adequately forewarned of the possible consequences of their guilty plea, even in a “worst case” scenario where, as here, a court construes the evidence and sentencing guidelines differently than a defendant expected when agreeing to their plea.
If discussion of the maximum possible sentence is required in plea agreements the result is to eliminate ambiguity in the guilty-plea process, surely an important goal given the interests at stake….
The plea agreement in this case does not mention the actual maximum possible sentence that Miller might have (and did) receive. While a stipulation in a plea agreement cannot bind a sentencing court to a particular sentence, plea agreements should state the maximum possible sentence that a defendant might receive and, if subjected to a sentence above that maximum, waivers of appeal should not be enforced.