PURSUANT TO THE LAW SURROUNDING SECTION 11(c)(1)(c) THE COURT AND GOVERNMENT INDEPENDENTLY OR JOINTLY HAVE THE POWER TO ACCEPT THE PLEA BUT NONETHELESS REDUCE THE PENALTY IMPOSED
Normally, the basis of sentencing is the judge’s consideration of the Guidelines applicable to the offense, along with their examination of the §3553 factors. Peugh v. United States, 133 S.Ct. 2072 (2013). Rule 11(c)(1)(C) encumbers the judge’s substantial discretion by “[permitting] the defendant and the prosecutor to agree that a specific sentence is appropriate,” and to then submit their joint proposal to the court. Freeman v. United States, 131 S.Ct. 2684 (2011). It would appear beyond cavil that the purpose of Rule 11(c)(1)(C) is to permit the government and the defendant not only to “allocate risk [and] obtain benefits,” but equally, to “achieve finality and save resources.” United States v. Quinones, 511 F.3d 289, 323 (2d Cir. 2007). Nevertheless, it remains the province and duty of the judge “in every case … to impose an appropriate sentence. Freeman, at 2692.
To be sure, a sentencing judge retains discretion to accept or reject any plea agreement made pursuant to Rule 11(c)(1)(C). That the parties may, under Rule 11, fashion an agreement as to the appropriate sentence does not “discharge the district court’s independent obligation to exercise its discretion,” and indeed, a judge is forbidden from accepting an agreement “without first evaluating the recommended sentence in light of the defendant’s applicable sentencing range.” Id. The court “retains absolute discretion whether to accept a plea agreement, but once it does it is bound at sentencing to give effect to the parties agreement as to the appropriate term of imprisonment.” Id., at 2696, Sotomayor concurring in the judgment.
There are rare exceptions to this rule, such as when a judge accepts a (c)(1)(C) agreement on the basis of sentencing guidelines that are later amended to suggest a lower sentence, Freeman, supra, or where a judge must exercise his equitable discretion in order to remedy a constitutional violation. United States v. White, 429 Fed.Appx. 43 (W.D.N.Y. 2011). Moreover, the undersigned believe that in instances such as the one at bar, circumstances may be presented that are so compelling, overwhelming, and long-standing, that a court may leave room for additional consideration.
As mentioned, the court maintains discretion to determine whether a sentence is appropriate prior to accepting a plea agreement. The Court at that time must evaluate the proposed sentence in light of the guidelines, as well as the §3553 factors. Peugh v. United States, 133 S.Ct. 2072 (2013), citing Gall v. United States, 552 U.S. 38, 49. During that time, the judge may comment on or suggest alternative dispositions more amenable to his evaluation of the §3553 factors and the guidelines. See, e.g. United States v. Figueroa, 2012 WL 2923288 (W.D.N.Y 2012), regarding transcript evidence of the judge’s pre-sentence explanation of the process of accepting a plea.
The undersigned urge this Court to consider the proposed sentence under the §3553 factors as unduly harsh. However, the Court in so rejecting the instant (c)(1)(C) deal as excessive and disproportionately punitive, might suggest to the government a less severe, but equally effective resolution. For example, a sentence constituted of some combination of house arrest, community service, and a significantly reduced prison term of no more than a year and a day (or its equivalent with good time) would be at least as consistent with the purposes of the Guidelines and §3553.
Your honor is certainly unconstrained with respect to the exercise of discretion precedent to the acceptance or rejection of the proposed (c)(1)(C). Notwithstanding the values of finality and efficiency embodied by Rule 11(c)(1)(C), a fair result is, no doubt, of greater value both to this defendant, and to the integrity of the judicial system writ large.
Additionally, the government may itself propose to alter the terms of the agreement; may include in an agreement a clause allowing either party to move for an upward or downward adjustment at or even after sentencing; or may at any time move the court to impose a lesser sentence than that originally proposed. See, e.g.: United States v. King, 543 Fed.Appx. 99 (E.D.N.Y. 2013), reciting that sentence was imposed pursuant to the Rule 11(c)(1)(C) agreement as well as “the government’s requests … that the court depart downward”; United States v. Adams, 2014 WL 4745936 (S.D.N.Y. 2014), indicating that by the terms of the Rule 11 agreement, “either party could, directly or indirectly, seek a sentence outside the stipulated range based on §3553(a) factors.”; United States v. Marks, 890 F. Supp2d 248 (W.D.N.Y. 2012), distinguishing the government’s (c)(1)(C) offer from one whose terms might “contain an ability for [defendant] to seek a reduction…”.
The above cases clearly indicate that it is within the power of the court to reject the agreement while proposing an acceptable alternative. The case law also demonstrates that it is within the power of the government to refine the agreement as to its terms, allowing defendant more latitude to seek a departure, as well as to suggest to the court a reduction in sentence.