Trial or Plea: Evaluating the Strategic Choice in Federal Criminal Practice
Excerpted from §§5.7 – 5.10 of Steven R. Hunter, Ch. 5, Plea Bargaining, FEDERAL CRIMINAL PRACTICE (IICLE®, 2026)
The first step in every plea negotiation is deciding whether to engage in them. Practitioners should keep in mind that an attorney who never goes to trial will not have a credible threat of trial when negotiating. The percentage of guilty pleas has been decried as too high in some quarters and a trial is not something to be avoided in every case. A bedrock principle of our system is that the defendant, not the lawyer, decides whether to plead guilty. Once a lawyer has clearly explained the law and the evidence to the client and has offered advice, the attorney should abide by the client’s decision. But the harsh reality of practicing criminal defense in federal criminal court is that plea negotiations will be necessary in the majority of cases.
Timing and General Considerations
Whether and when a defendant or the government should engage in plea negotiations depends on many factors. Calculating the expected benefits, the costs, and a defendant’s options can sometimes involve a complex balancing of competing considerations and uncertainties, including the direct and indirect costs of a trial in terms of financial expense, anticipated negative publicity, emotional strain on the defendant and the defendant’s family, and the potential civil and administrative consequences of conviction. Of particular importance to some defendants and their attorneys is the immigration consequences of a conviction. A defense attorney has the duty to advise a client if deportation will be the result of a guilty plea. Padilla v. Kentucky, 559 U.S. 356, 176 L.Ed 2d 284, 130 S.Ct. 1473 (2010). This conversation must take place before making the decision to engage in plea negotiations because for some defendants any chance of avoiding deportation could outweigh the risk of a greater sentence after losing a trial. Usually, however, the overriding considerations relate to sentencing outcomes. One effect of the Federal Sentencing Guidelines, even though they were made only advisory by United States v. Booker, 543 U.S. 220, 160 L.Ed.2d 621, 125 S.Ct. 738 (2005), is that they still afford federal defendants a greater degree of predictability concerning the most pertinent sentencing variables and outcomes than is possible in most state courts. When applicable, the impact of mandatory minimum sentences and what steps must be taken to receive any lesser sentence are even more predictable.
Sometimes, the decision whether to engage in plea negotiations must be made quickly. In multi-defendant cases, especially when the option to cooperate with the government is available, the question of when to engage in plea negotiations is usually answered by the well-worn adage, “The first one on the bus gets the best seat.” In some cases, such as prosecutions in which a defendant’s ability to assist the government in a covert investigative capacity may be short-lived, it is imperative to move quickly in deciding whether to cooperate in the investigation of crimes by others. Sometimes, events may even force a defendant to make that choice at or near the time of arrest. In a single-defendant white-collar crime case, however, the timing of when to initiate plea negotiations may be less critical. Even then, time is seldom on a defendant’s side. Because the government’s investigation of the offense usually continues after indictment, the strength of its evidence, including evidence relating to aggravating sentencing factors, typically increases the closer the case gets to trial. In such cases, holding out for a better deal may have the opposite result.
In fact, there are instances in which there are advantages to entering plea negotiations even before indictment. Early negotiation can reduce legal defense costs, lead to resolution of a case on limited terms before the prosecution has discovered the full scope of a defendant’s criminal activities, and minimize adverse publicity. It may also lead to significantly greater opportunities for a defendant to earn a sentencing reward by cooperating with the government in its investigation and prosecution of others.
In some cases, however, especially in some complex white-collar crime prosecutions, it may be important to delay plea negotiations until after extensive discovery can be reviewed, all possible defenses can be explored, and areas of potential negotiation can be identified. If the “first one on the bus” adage is inapplicable, a trial would be lengthy, and the government has the advantage of months, or even years, of preparation before the indictment was returned, then preparation for plea negotiations may merge with trial preparation and take almost as much time, if not more.
On the other hand, defendants who face lengthy trials may be in a better bargaining position earlier than later because an early guilty plea may induce the government to be more generous in its concessions in order to prevent the waste of considerable time and resources in trial preparation that otherwise could be invested on other investigations and prosecutions.
Usually, a primary consideration in whether to negotiate a guilty plea is the strength of the government’s evidence and attendant likelihood of conviction at trial, weighed against the consequences of a plea of guilty, including the likely sentence or deportation. If, as is typical in federal prosecutions, the strength of the government’s evidence is high, some defendants would be well served by engaging in plea negotiations. However, there are many situations in which the defendant has little or no incentive to plead guilty. The age, health, and immigration status of defendants have a great bearing on the wisdom of pursuing a plea agreement. For example, a long mandatory minimum for a middle-aged client is tantamount to a life sentence. Even if there is no mandatory minimum, a defendant with an initial Guidelines range of 360 to life is unlikely to negotiate away most of that time. If the defendant is old or in poor health, it may make no sense to pursue a guilty plea. Similarly, if deportation is certain, defendants may choose to take any chance at an acquittal, no matter how small, rather than be sent to a country where they may know no one and do not speak the language. It is important for practitioners to consider all the defendant’s circumstances and wishes before advising to pursue a plea negotiation.
Absent a prohibitively high mandatory minimum or certain deportation, the starting consideration in determining whether plea negotiations would be advantageous is generally the degree to which a guilty plea would result in a lower sentence. Even before the Guidelines existed, federal judges, like their state counterparts, typically imposed lower sentences on defendants who pleaded guilty than on those who went to trial. Were that not so, almost every case would go to trial, as every sentencing judge knows. Moreover, a defendant who candidly admits guilt and expresses remorse is less likely to be viewed by a sentencing judge as a threat of recidivism than a defendant who displays a defiant attitude and demands a trial even in the face of overwhelming evidence. Thus, for both practical and policy reasons, defendants who plead guilty almost always receive a lower sentence than if they had been convicted at trial.
Those practical and policy considerations are also embodied in the Guidelines, which afford a defendant a two-level downward adjustment in offense level for acceptance of responsibility through a candid guilty plea and, in most cases, an additional one-level adjustment for pleading guilty early if the defendant’s offense level is 16 or higher. Guidelines §3E1.1. In more serious cases, especially when it is known that the sentencing judge is likely to adhere closely to the Guidelines, the reduction in sentence afforded by those adjustments may be sufficient to justify a guilty plea. Even in lesser cases in which a two-level reduction in offense level may reduce the Guidelines sentencing range by only one to four months, that may be enough to move a defendant into a sentencing zone in which probation or some form of alternative sentencing may become a sentencing option under the Guidelines. See Guidelines §5C1.1.
Even when a defendant faces a mandatory minimum sentence that otherwise would override any benefit for acceptance of responsibility, a guilty plea, in combination with other factors, may qualify a defendant for the so-called “safety valve” provisions of 18 U.S.C. §3553(f) and Guidelines §5C1.2. Not only may those provisions enable a defendant to escape the application of a mandatory minimum penalty and enable the defendant to receive the benefit for acceptance of responsibility under the Guidelines, but eligibility for the safety valve in drug cases also results in an additional two-level reduction in offense level. Guidelines §2D1.1(b)(18).
The gap between the expected sentence following a guilty plea or conviction at trial may be even wider in cases in which it can be anticipated that the defendant will testify at trial. If a defendant is convicted and deemed to have lied, the defendant would qualify for a two-level upward adjustment in the offense level for obstruction of justice. Guidelines §3C1.1.
Beyond those essentially arithmetic considerations regarding guilty pleas under the Guidelines, plea negotiations may have the greatest impact in resolving sentencing issues of a more factual nature, such as the amount of drugs involved in relevant conduct in a drug case (see §5.12 below) or the amount of loss or restitution involved in a white-collar crime case. Even in cases in which the government’s evidence of guilt may be exceedingly strong, its evidence on such sentencing facts may get thin around the edges, making such issues ripe for a compromise resolution through plea negotiations.
Finally, when deciding whether to accept a plea agreement, a defense attorney should always keep in mind that the court also hears from a probation officer through the presentence investigation. If a defendant enters into a nonbinding plea agreement, a probation officer may reach different Guidelines calculations, which the judge can accept. Most plea agreements contain language making this clear, such as “defendant understands that the probation office will conduct its own investigation and the Court ultimately determines the facts and law relevant to sentencing, and the Court’s determinations govern the final Guidelines calculation.” The value of the terms of a plea agreement must be considered in this context. For example, the government may agree that a defendant is entitled to a minor role downward adjustment of the defendant’s offense guideline. However, a probation officer may recommend against it. Federal judges sometimes accept the recommendations in a presentence report, even if it is contrary to a plea agreement between the prosecution and the defense.
Plea Declaration
Not every negotiation will end in an agreement. Even in cases in which the defendant does not wish to go to trial, there must be something beneficial to the defendant. Otherwise, a defendant can proceed with a plea declaration. A plea declaration is a document created by a defense attorney. It should contain sufficient facts to support a plea of guilty, lay out the statutory maximum and minimum sentence, and calculate the applicable Guidelines range. It should also detail the defendant’s trial rights being waived and the defendant’s appellate rights. Finally, it should describe the limitations of the plea and the consequences, e.g., that the prosecutor will be free to make a sentencing recommendation and will inform the probation officer writing the presentence report of all the facts believed to be relevant.
A plea declaration offers certain advantages. One advantage is that the defense attorney controls the content. The factual basis must be sufficient to support an admission of guilt. However, a defense attorney need not include all of the negative facts that a prosecutor will likely insist on for a negotiated plea. Another advantage is that plea agreements often include appellate waivers. Such waivers ensure that a prosecutor will not have to worry about an appeal of the validity of the plea or the sentence. These waivers benefit the prosecutor but not the defendant, and if the prosecution offers a plea agreement that simply summarizes the facts and the guidelines calculations but does not offer the defendant any benefit, they should not be agreed to.
Plea declarations are not without cost or risk. Pleas of guilty by the defendant are under oath. If a defendant denies relevant conduct that the court believes occurred or makes some other factual representation that the court deems to be false, the court may impose a two-point enhancement to the defendant’s offense level for obstruction under Guidelines §3C1.1. This would trigger loss of a two-point reduction in the defendant’s offense level for acceptance of responsibility under §3E1.1(a). In addition, without an agreement, the prosecution may refuse to move the court for a one-point decrease under §3E1.1(b). Under Application Note 6 of Guidelines §3E1.1, “an adjustment under subsection (b) may only be granted upon formal motion by the Government at the time of sentencing.” In addition, without an agreement, the prosecution may refuse to move the court for a one-point decrease under §3E1.1(b). Awarding or withholding the one-point decrease depends on whether the defendant notified the prosecution early enough in the process “to avoid preparing for trial.” Id. In 2023, §3E1.1(b) was amended to more clearly define what constitutes preparing for trial. “Preparations for pretrial proceedings (such as litigation related to a charging document, discovery motions, and suppression motions) ordinarily are not considered ‘preparing for trial’ under this subsection. Post-conviction matters (such as sentencing objections, appeal waivers, and related issues) are not considered ‘preparing for trial.’ ” Therefore, fair-minded prosecutors will make the motion even with a plea declaration if it is indicated that the defendant will not be going to trial in a timely fashion. But timely could be in the eye of the beholder. Practitioners should know before pursuing a plea declaration what the prosecution will do regarding §3E1.1(b). In addition, plea declarations do not preserve the right to appeal denials of pretrial motions unless there is an agreement with the prosecution and the court to allow for it. A conditional plea must be in writing and reserve the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea. Fed.R.Crim.P. 11(a)(2). Prosecutors are free to refuse and sometimes will if a defendant pursues a plea declaration.
Disagreements Within Plea Agreements
Even if the defense and prosecution cannot agree on every issue in a plea negotiation, an agreement may still be reached. Prosecutors will often accept “agree to disagree” provisions, in which the agreement states the position of each party and indicates that this will be a contested issue a sentencing. For example, the defense may feel that the defendant deserves a guidelines reduction for mitigating role under §3B1.2 of the Guidelines, and the prosecution may disagree. An “agree to disagree” provision stating this allows both sides to argue their positions at a sentencing hearing while still reaching an overall plea agreement that would benefit both sides.