Why do Federal Plea Deals Go Bad?

Over 90 percent of people charged with a federal crime plead guilty. And they usually plead guilty after signing a plea deal. The defendants hope they will get less time by “pleading out.” In particular, many people sign federal plea deals hoping they will get a lower jail term. However, that is not always the case.

In these cases, clients all have the same complaint. They protest the unfairly high jail term 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 of them to feel anger, a sense of betrayal, and resentment towards the criminal-justice system.

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

It comes up after a person pleads guilty, but before he is sentenced. That’s when the probation department prepares a Presentence Investigation Report (PSR). The PSR includes information (i.e., relevant conduct) that may increase the jail term. This catches people by surprise because the plea deal they signed frequently does not contain this information.

A careful review of relevant conduct will show us how this problem occurs. More importantly, it will show us how to deal with this problem when it comes up.

What is Relevant Conduct?

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

Simply stated, the judge looks at all the events that happened before and during the crime. If the crime is a conspiracy, then the judge will also look at what the other conspirators did during the crime. The conduct of the other conspirators is important because it can increase a person’s guideline range. This is true even if the person did not actually commit the criminal acts.

What are Examples of Relevant Conduct?

Several examples will give us a better idea of how it works. In a nutshell, the problem happens when a person pleads guilty to Crime A. The person is expecting a punishment only for Crime A. However, the PSR may include information on other crimes that were part of a scheme or plan connected to the crime the person pleaded out to. These other crimes are relevant-offense conduct. And it may result in a higher jail term for that person.

The sentencing guidelines give us examples to show how this works.

Example 1: A One-time drug deal.

Person O is dating a drug dealer. She also knows about her boyfriend’s ongoing drug dealing, but agrees to help on only one occasion by making a delivery for him at his request when he was ill. She is responsible for the drug amount involved on that one occasion. However, she 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., she agreed to only one delivery). See USSG 1B1.3, comment. (n.4(C)(v)).

Example 2: “I’ve done this before.”

Cops arrest Person P for smuggling undocumented people after police find 5 undocumented people in his car. Police question Person P about this crime. And he admits this was not his first time. He tells police he did this on two other times. Each time he transported 5 people.

Accordingly, his relevant conduct will include all 15 undocumented people he smuggled. This includes the 5 people police caught him with. And the 10 people Person P admitted to smuggling on different occasions.

Example 3: Snitches get Stitches.

Person Q pleads guilty to conspiracy to distribute marijuana. But other co-defendants tell police that Person Q also distributed specific amounts of cocaine, heroin, and methamphetamine. Therefore, Person Q’s relevant conduct will include not only the marijuana, but also the cocaine, heroin, and methamphetamine. This will likely increase his base-offense level. Consequently, that will raise his possible jail term.

How does relevant conduct turn a federal plea bargain into a bad deal?

These examples show how relevant conduct can turn a federal plea bargain into a bad deal. For instance, Person 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 Person O accountable for all the drug deliveries her boyfriend made. This is a mistake. But if Person O does not timely object to this error, then it will likely result in a higher jail term.

Example 2 shows how honest people may get higher jail terms when they confess to other crimes. In this example, Person P told police the truth. He told police he smuggled people on other occasions. In contrast, if Person P did not confess, then police would never know about the other deals.

But the good news is Person P can use his honest answers to argue for a lower sentence. As an example, he can tell the judge his honesty shows he accepts responsibility for his crimes. Therefore, the judge should not punish him for being honest. This may work in some courts. Some trial judges are receptive to this approach.

The bait-and-switch Problem.

The final example happens when a person pleads guilty to one drug crime (i.e., Crime A-marijuana), and snitches tell police the person delivered other types of drugs (coke, heroin, and meth). In these situations, the plea deal often only mentions marijuana. It does not mention the coke, heroin, or meth.

Unfortunately, the other drug deliveries will qualify as relevant conduct. This is true even though the plea agreement only mention the marijuana deliveries. For this reason, the PSR will take into account all the drugs that he dealt during the crime. The end result will be a longer jail term.

For people in this situation, this feels like a bait-and-switch. They are expecting a jail term for pot. But the judge gives them a jail term for pot, coke, meth, and heroin. It makes people angry. And it creates distrust between the attorney and the client.

Sadly, this happens all too often. This is why a person should talk to his or her lawyer about relevant conduct before they sign a plea deal. It is also helpful to hire a PSR Consultant in this situation. PSR consultants will help you spot these issues. Above all, they can give you an idea of the jail term you are looking at before you sign the plea deal.

How to Object to Relevant Conduct?

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.

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-guideline range.  And therefore, a lower jail term.  If the court disagrees with you, then you have successfully created a record for review on appeal. 

San Antonio Federal Plea Bargain Agreements and Options.

The bottom line on relevant conduct is simple. Speak with your attorney about relevant conduct before you sign a plea deal. In some cases, prosecutors will agree that certain relevant conduct will not apply to the person police arrested. Otherwise, the relevant conduct could increase your guideline range and ruin your plea deal.

Also request that your attorney give you an estimate of how the relevant conduct will affect your guideline 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 an 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 also help you successfully challenge the relevant conduct. Most importantly, it could get you a lower jail 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 often helps defense attorneys get lower jail terms for their clients.

Finally, Genaro R. Cortez is a defense attorney that practices law in San Antonio and South Texas. He has handled hundreds of federal criminal cases and successfully defended clients at 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
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Email: genaro.cortez@cortezlawyer.org