Recent statistics show that about 96% of the criminal cases in federal court are resolved through guilty pleas. The number of cases going to trial has dramatically decreased in the past ten years. Thus, today’s criminal defense attorneys must be adept at negotiating the best possible resolution for their clients that choose to plead guilty.

Plea bargains in the federal system, however, differ significantly from plea bargains in many states. For example, in New Jersey a state plea between the county Prosecutor’s Office and the defendant most often is to an agreed upon sentence. If at sentencing the judge disagrees with the agreed upon sentence, the defendant has the option of accepting the sentence handed down by the judge or withdrawing their plea and opting for trial. Nothing the defendant says during their plea hearing can be used against them at trial. It is a rare occurrence, however, for a state court judge to disagree with the negotiated disposition and sentence.

In the federal system, the U.S. Attorney’s Office and the defense agree to the specific statute(s) or counts of the Indictment or Information the client will plead to, and often to the specific U.S. Sentencing Guidelines sections and levels that are applicable to the case. This results in an advisory Guidelines range that the parties believe are applicable to the plea. This agreement, however, is only binding on the parties to it – the government and the defense. The Court and U.S. Probation make an independent assessment and determine separately whether the plea agreement calculations are correct. If the court determines that the sentencing range is greater than agreed to, the defendant cannot withdraw their plea and opt for trial. The defendant’s only recourse is to appeal the sentence to the U.S. Court of Appeals.

In addition, each federal district has slightly different rules or accepted practices in negotiating pleas. For example, in the District of New Jersey, when the parties agree to the Guidelines’ levels based upon amount of loss, the amount of drugs, the defendant’s role in the offense, and any other enhancements, the defense is not allowed to affirmatively argue for a variance or departure from the advisory Guidelines range agreed to unless the right is specifically listed in the agreement. In many other districts, no such restriction is placed on the defense, allowing them to argue for a below Guidelines sentence based upon a departure, variance, or the traditional sentencing factors expressed in 18 U.S.C. Section 3553(a) – the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence to reflect the seriousness of the offense, and to provide specific and general deterrence. Thus, it is critical for defense counsel to be intimately familiar with each districts’ policies for plea agreements and sentencing.

Stahl Criminal Defense Lawyers aggressively defend organizations and individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success.

Our offices are located in Westfield, New Jersey and Manhattan. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at Or Contact us online.