How Federal Plea Deals Go Bad

Over 90 percent of defendants plead guilty in federal court. And they usually plead guilty after signing a plea deal. The defendants hope they will get less time by “pleading out.” Specifically, defendants sign federal plea deals hoping they will get a lower sentencing guideline range. However, that is not always the case.

In these cases, clients all have the same complaint. They protest the unfairly high prison range they are facing. The clients frequently say: “If I knew my federal sentencing guidelines would be so high, I would have gone to trial instead of pleading out.” This experience causes many defendants to feel anger, a sense of betrayal, and resentment towards the criminal-justice system.

But how does this happen? Why is there often a disconnect between the language in a federal-plea deal and a defendant’s sentencing guideline range? And why do federal plea deals go bad? The short answer is “Relevant Conduct.”

It happens after a defendant pleads guilty, but before he is sentenced. That’s when the probation department prepares a Presentence Investigation Report (PSR). The PSR often includes information (i.e., relevant conduct) that increases a defendant’s prison range. This catches defendants by surprise because the plea deal they signed often does not contain this information.

This post will discuss how this problem arises in federal plea deals and what to do when it happens.

What is Relevant Conduct?

Relevant Conduct is a hyper-technical term. It refers to “the range of conduct that is relevant to determining the applicable offense level[.]” USSG § 1B1.3, comment. (backg’d.) Relevant Conduct allows a judge to take a variety of facts into consideration at sentencing.

In plain English, the judge looks at everything that happened before and during the course of the offense. If the crime is a conspiracy, then the judge will also look at the conduct of the other co-defendants during the offense. The conduct of the other co-conspirators is important because it can increase a defendant’s federal sentencing guideline range. This is true even if the defendant did not actually commit the criminal acts.

Examples of Relevant Conduct

The problem happens when a defendant pleads guilty to Crime A. The defendant is then expecting a punishment only for Crime A. However, the PSR includes crimes that occurred before the defendant’s arrest. These other crimes are relevant-offense conduct. And it results in a higher prison term for the defendant. See United States v. Ortiz, 613 F.3d 550, 557 (5th Cir. 2010) (Stating that relevant conduct includes “acts and omissions” that were part of a “common scheme or plan” or were part of the “same course of conduct of the offense.”)

As mentioned above, relevant conduct is a hyper-technical term. However, the sentencing guidelines provide useful examples to consider. The examples below are summaries of illustrations provided by the United States Sentencing Commission and our experience with real clients.

Example 1: Relationship Issues

Defendant O knows about her boyfriend’s ongoing drug-trafficking activity, but agrees to participate on only one occasion by making a delivery for him at his request when he was ill. [She] is accountable . . . for the drug quantity involved on that one occasion. Defendant O is not accountable for the other drug sales made by her boyfriend because those sales were not within the scope of her jointly undertaken criminal activity (i.e., the one delivery). USSG 1B1.3, comment. (n.4(C)(v)).

Example 2: Not My First Rodeo

Defendant P is arrest for smuggling undocumented people. Police find 5 undocumented immigrants in his car. Police then question Defendant P. He admits this was not his first time. Defendant P tells police he did this on two other occasions. Each time he transported 5 people. Defendant P’s relevant conduct will include all 15 undocumented people he smuggled and admitted smuggling.

Example 3: Dropped a Dime

Defendant Q pleads guilty to conspiracy to distribute marijuana. But other co-defendants tell police that Defendant Q also distributed specific amounts of cocaine, heroin, and methamphetamine. Defendant Q’s relevant conduct will include not only the marijuana, but also the cocaine, heroin, and methamphetamine.

Federal Plea Deals and Sentencing Guidelines

These examples show how relevant conduct can turn a federal plea bargain into a bad deal. For instance, Defendant O in Example 1 helped her boyfriend on only one occasion. Therefore, the PSR should limit her relevant conduct to only one drug delivery. Unfortunately, the opposite is usually true in real cases. The PSRs often will hold Defendant O accountable for all the drug deliveries her boyfriend made. If Defendant O does not timely object to this error, then it will likely result in a higher prison sentence for her.

Example 2 shows how honest defendants may get higher prison sentences when they confess to other crimes. In this example, Defendant P truthfully told police he smuggled people on other occasions. If Defendant P did not confess, then police would not know about the other occasions. But the good news is Defendant P can use his honest answers to argue for a lower sentence. Specifically, he can request that his honest answers not be used against him at sentencing. Some trial judges are receptive to this approach.

The final example frequently happens when a defendant pleads guilty to one drug crime (i.e., Crime A-marijuana), and snitches tell police the defendant delivered other types of drugs (Crimes B, C, and D). In these situations, the federal plea deal often only mentions Crime A. But these other drug deliveries will qualify as relevant conduct. And this will result in a higher prison range for the defendant. This is true even if the facts in the plea agreement only mention marijuana deliveries.

Now we know how relevant conduct turns a federal plea bargain into bad deal. So let’s discuss how to fix a PSR that contains either erroneous or unfair relevant conduct.

How to Object to Relevant Conduct?

File written objections to the PSR (with hopefully supporting documents and evidence.)  Fed. R. Crim. P. 32(f) provides that “the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report.”

The trial court must then make a factual finding on the disputed issues if the defendant objects in writing.  The defense needs to prove its objections by a preponderance of the evidenceSee United States v. Nevels, 160 F.3d 226, 228 (5th Cir. 1998).  If the court agrees with you, then it could result in a lower projected sentencing guideline range.  And therefore, a lower prison sentence.  If the court disagrees with you, then you have successfully created a record for review on appeal. 

San Antonio Relevant Conduct Criminal Defense

Speak with your attorney about relevant conduct before you sign a federal plea deal. In some cases, prosecutors will agree that certain relevant conduct will not apply to the defendant. Otherwise, the relevant conduct could increase your sentencing guideline range and ruin your federal plea deal.

Also request that your attorney give you an estimate of how the relevant conduct will affect your sentencing guidelines range. The estimate should preferably include a best and worst case scenario (i.e., with and without the negative relevant conduct.) Your attorney can then use this information to argue the relevant conduct unfairly increases your prison term.

However, you should be aware that no attorney or prosecutor can promise you a specific guideline range or jail term. The judge will make a final and independent decision after it reviews the PSR, relevant conduct, and arguments from the parties. Finally, you should consider speaking with a PSR consultant to get a second opinion on the PSR. This could help you successfully challenge the relevant conduct and get you a lower prison term.

About the Authors

This article is co-written by Retired Supervisory U.S. Probation Officer Virginia Mata and Defense Attorney Genaro R. Cortez. As a Supervisory U.S. Probation Officer, Ms. Mata wrote and reviewed hundreds of Presentence Investigation Reports (PSR’s). Ms. Mata ensured the PSR’s were correctly calculated. She also reviewed the reports of other U.S. Probation Officers to make sure they were correct.

Virginia Mata is a Federal PSR consultant and owner of Federal PSR Consultant, LLC.  She helps San Antonio Criminal Defense Attorneys with sentencing and guideline issues.
Federal PSR Consultant Virginia Mata. Owner and Operator of FEDERAL PSR CONSULTANT, LLC.

Ms. Mata is now a legal consultant. She is the owner of Federal PSR Consultant, LLC. Ms. Mata helps defense lawyers with federal sentencing guideline issues. This includes advising attorneys on the topic of relevant conduct. Her advice helps defense attorneys secure lower prison terms for their clients.

Attorney Genaro R. Cortez is a criminal-justice advocate that practices law in San Antonio and South Texas. He has handled hundreds of federal criminal cases and successfully defended clients in trial.

Law Office of Genaro R. Cortez, P.L.L.C.

730 West Hildebrand Avenue
Suite 2,
San Antonio, Texas 78212
Phone: 210-733-7575
Fax: 210-733-7578
Email: genaro.cortez@cortezlawyer.org