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November 9, 2005

A window into charge bargaining dynamics

In this long-ago post, I lamented the disparity that can result from prosecutorial discretion to charge bargain.  And the Third Circuit's decision today in US vs. Floyd, No. 05-1641 (3d Cir. Nov. 9, 2005) (available here) provides another window into the impact charge bargaining can have on the operation of the federal sentencing system.

Floyd is an interesting case in which the Third Circuit ultimately finds that prosecutors breached their promise to consider recommending a downward departure based on substantial assistance.  The reason given for the government's actions: after allowing the defendant to plead guilty to an offense with a five-year statutory maximum, it realized the defendant's overall offense conduct supported a guideline range of 292 to 365 months. That is, the government's charge bargain reduced the defendant's sentencing exposure from 30+ years to no more than 5, and the government did not want to urge a further reduction for substantial assistance upon realizing the impact of its charge bargain.  But this reason was not sufficient under the term of the plea agreement, and so the Floyd court remanded for further consideration of whether te defendant was entitled to a substantial assistance motion.

November 9, 2005 at 10:41 PM | Permalink


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