What Happens When You Plead Guilty to Federal Drug Crime? From Guilty Plea to Sentencing Hearing in a Drug Case
Posted on by Michael Lowe.
Federal drug arrests can force the accused into negotiating a plea agreement, where special considerations apply to the defendant’s situation.
Drug arrests are made every day here in Dallas as well as the rest of Texas. Lots of drug busts are done by the local police or by county sheriff’s deputies. They will make drug arrests based upon violations of state law.
However, here in our part of the country there is a huge federal law enforcement presence because of federal concern about illegal drugs’ distribution and movement through Texas from Mexico and beyond. We’ve discussed this before. For more about drugs and the Feds in Texas, read: “Texas in the 2017 DEA National Drug Threat Assessment.”
Federal Drug Crime Arrests Different Than Texas
So what does this mean? It increases the likelihood that anyone involved with illegal drugs in Texas has to be ready to be arrested and charged under the federal drug laws. These laws are distinctly different from the state drug statutes.
Those arrested for federal drug crimes may face harsher sentences and stricter punishments than someone moving through the criminal justice system of the State of Texas. The federal way of doing things is different from the state system.
Federal drug charges are serious, life-changing events. The federal agents (DEA, FBI) deal with the “big picture.” Federal drug arrests in Texas are usually for larger amounts of drugs, with several counts based upon a variety of serious felony charges. There may be a number of arrests made simultaneously, as the result of “joint task forces” efforts. See, e.g., “White Collar Crime: Indictments Of Texas Professionals,” and “Heroin Moves Through Dallas: Drug Cartel Distribution Routes.”
Those accused of violating federal drug laws usually need aggressive criminal defense counsel working on their behalf as soon as possible. This is because the federal agents may have worked with federal prosecutors for a significant period of time prior to making the arrest, and they will have built a significant amount of evidence against the defendant before the arrest goes down.
In these instances, the accused may not have the realistic alternative to fight the case in court, arguing that the federal prosecutor cannot prove their case beyond a reasonable doubt. The accused’s best case scenario may be to negotiate a plea deal.
Federal System: the Steps from Arrest to Sentencing
When you are arrested by federal agents, you enter the federal criminal system. You will be taken to a federal facility and booked. You will make your Initial Appearance before the federal court judge.
At the initial appearance, the federal prosecutor has to demonstrate there is “probable cause” to support your arrest and the taking away of your freedom. Here is the first opportunity to make a defense against the charges, and a zealous defense lawyer will take full advantage of the Initial Appearance to poke holes in the prosecution’s case.
If the judge rules in the prosecutor’s favor, then your case proceeds to the “arraignment.” Here, the federal charges are read into the record. Here is the first occasion where you may enter a plea of “guilty,” if you’ve made a plea deal with the federal prosecutor.
Pretrial and Trial
If you enter “not guilty” at the arraignment, then your case continues. It goes through the “discovery process,” where evidence is collected by both sides and the defense gets the opportunity to review everything that has been collected against you that will be used at trial. (Unless it’s illegally and immorally kept back, of course: see, e.g., “Prosecutor Withholding Evidence from Defense in Federal Criminal Case.”)
After pretrial comes the trial itself. At any time during the pretrial or trial, you can finalize a plea deal with the prosecution.
It is not uncommon for plea bargaining between the defense lawyer and the prosecutor to continue from arraignment forward, through the trial itself, until an acceptable deal is reached.
Rule 32 of the Federal Rules of Criminal Procedure controls the process of sentencing a defendant in the federal system. Sentencing must be done “without unnecessary delay,” and a Pre-Sentencing investigation must be undertaken. This results in a “Pre-Sentencing Report” that is used by the federal judge in making his or her sentencing decision.
The recommended sentence pursuant to the sentencing guidelines is included in the PSR. The defense may assert its objections to the PSR at the Sentencing Hearing, as well as filing written objections to the PSR which are filed in the court record. For more on how the sentencing guidelines work in a federal case, read “Federal Sentencing Guidelines on Federal Child Pornography cases .”
Sentencing happens regardless of whether or not you went to trial and were convicted by the jury’s verdict or if you entered a plea deal after negotiating with the United States Attorney General’s Office (the federal prosecutors). The judge has the task of imposing sentence, not the prosecution. Plea deals must be approved by the judge as a part of the sentencing.
Three Very Special Considerations for Plea Deals in a Federal Drug Case
When negotiating a plea deal on a federal drug charge, there are three very special things to think about regarding the agreement with the government.
- First, the defendant needs to consider the contract itself: what kind of agreement is being signed, and is it binding on the government?
- Second, the defendant also needs to think about his particular circumstances, and whether or not the agreement prevents the prosecution from bringing up past conduct as part of the sentencing hearing.
- Finally, the defendant must remain ready to go to trial. All plea agreements are contingent upon the judge’s approval of the deal. The judge is not a party to the contract. Judges have, on occasion, refused to accept a plea deal.
Accordingly, in any plea negotiation, the defense must continue to prepare for trial in the event that the plea agreement is not accepted by the court. Importantly, under Rule 11 of the Federal Rules of Criminal Procedure, if the court rejects a plea agreement, the court must give the defendant an opportunity to withdraw the plea. See, Fed. R. Crim. P. 11(c)(5)(B). (There are exceptions here, see e.g., Fed. R. Crim. P. 11(c)(1)(C).)
Contract Provisions in a Plea Agreement on a Federal Drug Charge
Negotiating a plea bargain is making a deal with the government’s lawyer. It’s a contract negotiation, and a written agreement will be the result. There will be an offer, an acceptance, and consideration – the same elements that create a binding contract when someone buys a car or sells a house.
- Valid Contract. Accordingly, the defense lawyer will confirm that there is a final, valid contract on the table to be presented to the judge. It’s written. It’s signed.
- No Other Charges; Dismissal of Charges. He will also be on the lookout to make sure that the contract contains certain language or paragraphs that protect the defendant. These include provisions that the prosecutor will not bring other charges against the accused, as well as dismissing other charges against him or her. See Fed. R. Crim. P. 11(c)(1)(A). Think that prosecutors charge defendants with things that they know won’t hold up, just so they can use them here in negotiations in a plea deal? Sure they do. Pointing this out to the government is part of the defense lawyer’s job in plea bargaining.
- Sentence Recommendation. If some cases, the contract can be negotiated so the prosecutor agrees to allow the defense lawyer to request at the sentencing hearing that a particular sentence is best for the accused (most appropriate), or that justice is better served by applying a certain sentencing range under the U.S. Sentencing Guidelines. See Fed. R. Crim. P. 11(c)(1)(B). The defense may support this request with expert testimony (like psychologists, etc.) at the sentencing hearing.
- Agreed Sentence. Also, the defense may be able to negotiate with the prosecution the exact sentence to be imposed upon the defendant. Here, both sides agree on the sentence – but again, the judge has the power to accept or reject the deal. See Fed. R. Crim. P. 11(c)(3)(A); 11(c)(4).
Pre-Sentencing Report (PSR), Sentencing Guidelines, and Plea Deals
The federal judge will impose sentence at the Sentencing Hearing by looking to federal criminal law for drug crimes, as well as the Federal Sentencing Guidelines. To learn how this works, read “Federal Sentencing Guidelines: Conspiracy To Distribute Controlled Substance Cases.”
In the United States Sentencing Guidelines Manual, the Sentencing Commission’s Recommendations include a recommendation that the judge review the PSR before agreeing to accept the plea agreement. USSG Section 6B1.1.
The Guidelines are broader in scope that Rule 11 of the Federal Rules of Criminal Procedure; they establish the standards for plea agreements adopted by the Sentencing Commission. The USSG instructs the judge as follows:
No Other Charges; Dismissal of Charges.
When the plea agreement includes (a) dismissal of any charge or (b) an agreement not to pursue potential charges, the court may accept the agreement, for reasons stated on the record, if the remaining charges adequately reflect the seriousness of the actual offense behavior and accepting the agreement will not undermine the statutory purposes of sentencing or the sentencing guidelines. See USSG Section 6B1.2(a). The conduct that surrounds these charges can be used as “relevant conduct” to be considered in the sentencing, and whether to depart from the guidelines insofar as the count(s) of which the defendant is convicted. See id.; USSG Section5K2.21.
Sentence Recommendation; Agreed Sentence.
When the plea agreement includes an agreement for a specific sentence, or a recommended sentence, then the court may accept the deal if the judge is satisfied either that: (1) the sentence is within the applicable guideline range; or (2) the sentence departs from the applicable guideline range for justifiable reasons, which have been set forth in writing. See USSG Section 6B1.2(b), (c).
Defendant’s Cooperation. As part of the plea negotiations, the prosecution may insist upon the defendant cooperating with law enforcement in order to get a plea bargain. This is the legal element of “consideration” in the plea contract.
The Sentencing Guidelines instruct the judge on how that cooperation can or should impact the sentence imposed when the plea bargain is presented at the Sentencing Hearing. In USSG Section 1B1.8, limitations are placed on using information provided in the course of a defendant’s cooperation in calculating his guideline range.
When “a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others, and as part of that cooperation agreement the government agrees that self-incriminating information provided pursuant to the agreement will not be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement” and under other circumstances listed in USSG Section 1B1.8.
The judge cannot consider this information.
Moreover, at the sentencing hearing, the federal prosecutor cannot disclose revelations made by the defendant in the course of cooperating with the authorities as required under the plea agreement. This is conformity with federal precedent. See, e.g., United States v. Gonzalez, 309 F.3d 882, 887 (5th Cir. 2002) (prosecutor improperly used information gained under USSG Section 1B1.8 to support its argument for leadership role enhancement).
In federal drug cases, this means that information like additional drug transactions cannot be used to calculate drug quantities in the Sentence Guidelines, for instance, or revelations by the defendant under the plea bargain that there were firearms present at the scene of the drug arrest used against him as a firearms enhancement in the sentencing table calculations.
Note: if this sounds like some form of “immunity,” it is. This is considered to be “use immunity.” However, the defendant must be aware that this is not an 100% bar from prosecution on things outside the plea deal. If the prosecution finds information against the defendant from independent sources, even the codefendants, then that information can be presented to the judge for considering in sentencing at the Sentencing Hearing. See United States v. Pham, 463 F.3d 1239, 1244 (11th Cir. 2006) (per curiam) (“so long as the information is obtained from independent sources or separately gleaned from co-defendants, it may be used at sentencing without violating § 1B1.8”); United States v. Gibson, 48 F.3d 876, 879 (5th Cir. 1995) (per curiam).
Of course, the defense lawyer will object to this evidence being used against the defendant. It will be the prosecution’s burden to show to the court that the evidence it wants to use was indeed derived from an independent source, and not tied in any way to the cooperation of the defendant when making the plea bargain. See, e.g., United States v. Taylor, 277 F.3d 721, 725 (5th Cir. 2001).
What about helping the defendant? If there is information revealed during the plea bargaining, can the cooperation help lower the defendant’s sentence? Of course: this may be the core of the defendant’s interest in making the deal.
If information revealed by the defendant during the plea bargain helps his position, under the USSG the judge may use that information to determine if a “downward departure” from the Sentencing Guidelines is warranted. This will be done via a motion filed by the prosecution. See USSG Section 5K1.1 and our discussion regarding sentencing in drug cases including “Motions for Downward Departure” as well as “Safety Valves” in “Federal Sentencing Guidelines: Conspiracy To Distribute Controlled Substance Cases.”
Why Take a Plea? Unfairness and the Need for Federal Reform
For those who have been arrested by the FBI or DEA, or other federal agents, they are facing serious felony charges and potentially long terms of imprisonment, if not life behind bars. For these defendants, negotiating a plea deal means that they may get that sentence cut back, or lessened to a great degree.
In some cases, that plea deal may mean a greatly reduced sentence — or even what may seem the miracle of walking away without serving jail time.
This does happen. For a recent example, read “Probation in A Federal Child Porn Case: Case Study By Defense Attorney Michael Lowe.”
Read the actual transcript from that sentencing hearing here:
Sent Hearing Dec 8 by Michael Lowe, Attorney at Law on Scribd
Unfairness in the System
Statistics show that most federal charges (over 90%) result in plea negotiations and plea deals. See, Bureau of Justice Statistics, U.S. Dep’t Of Justice, Federal Justice Statistics 2012— Statistical Tables Tbl.4.2 (2015).
Odds are high that anyone arrested in Texas on federal drug charges is going to enter a plea deal which will be accepted by the judge at the sentencing hearing. However, defendants need to know that having so few criminal trials and so many plea agreements has been criticized as being the result of prosecutors having too much power and a system in need of change. Read, “Why U.S. Criminal Courts Are So Dependent on Plea Bargaining,” written by Dylan Walsh and published in The Atlantic on May 2, 2017.
Innocent people may well take a plea bargain under the current way of doing things. Judges are not reviewing the prosecution’s actions as much as they would in a full trial. See, Bagaric, Mirko, Julie N. Clarke, and William Rininger. “Plea Bargaining: From Patent Unfairness to Transparent Justice.” (2018).
This is all true. However, the current state of sentencing laws, the power of the sentencing guidelines, and the federal mandate that federal drug crimes carry mandatory sentences under the Controlled Substances Act, mean that those accused of federal crimes must balance their best interests in a flawed system that demands reform.
Having an experienced criminal defense attorney advocating on behalf of the accused as soon as possible can be key in these federal drug cases. Even those who suspect they are being investigated for federal drug crimes are well served by having a criminal defense lawyer protecting their rights and preparing not only to defend against the charges, but to mitigate any arrests by being ready for negotiations with a prosecutor as soon as possible after any arrest has been made.
For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Top 10 Things To Know When Defending Texas Charges Of Manufacture Or Delivery Of An Illegal Substance.”
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