Plea Agreements: Know What You're Getting and What You're Giving Up

Bryan Presley pleaded guilty to conspiring to burglarize pharmacies with the intent to steal controlled substances and assaulting a police officer with his car when he sped away from a burglary scene. Three parts of his plea agreement lead to some tricky questions.

The agreement provisions:

1. The parties stipulated that three specific offense characteristics applied to the conspiracy count.
2. Under Rule 11(c)(1)(C), the parties agreed that the Court "may not modify" the three stipulations and "[i]f the Court rejects these stipulations either party may withdraw from the agreement."
3. Presley waived his right to appeal unless the sentence "is an upward departure from the guideline range that the court establishes at sentencing."

Some questions:

1. If the court accepted the plea agreement, what did the parties' agreement bind the court to do under Rule 11(c)(1)(C)?
2. Would Presley have the right to withdraw from the agreement if the court imposed additional specific offense characteristics? What about if the court imposed Chapter Three enhancements?
3. If Presley did not withdraw from the agreement, would he have the right to appeal if the court sentenced him within a higher guideline range based on additional specific offense characteristics? What about a higher guideline range based on Chapter Three enhancements?

We get answers to only some of these questions in United States v. Presley. At sentencing, the district court adopted additional specific offense characteristics and Chapter Three enhancements and sentenced Presley within the higher guidelines range. Presley didn't move to withdraw or object to the additional enhancements.

On appeal, the court gave a clear answer to the third question: Presley's appeal-waiver applied. Even with the additional specific offense characteristics and Chapter Three enhancements, his sentence was within "the guidelines range that the court establishe[d] at sentencing," so Presley waived his right to appeal "[u]nder the agreement's plain terms."

Seeking to avoid the appeal waiver, Presley argued that he did not knowingly and voluntarily waive his right to appeal because, as he understood it, his plea agreement limited the district court to a lower guidelines range. But Presley didn't raised that objection in the district court, so the court reviewed only for plain error.

On plain-error review, the panel majority concluded that Presley could not show "that it should have been obvious that he understood his plea agreement to forbid the district court from applying additional enhancements." Among other things, the majority noted that the agreement said nothing about additional enhancements beyond the stipulated ones, that Presley himself argued for a total offense level higher than the level based on the stipulations alone, and that he never moved to withdraw his plea. Thus, the majority concluded that the agreement did not "preclude[] further enhancements--at least not plainly so."

Concurring in the judgment, Judge Moore took a different approach. She agreed that the court reviewed only for plain error. But she focused on Rule 11(c)(1)(C): "In essence, Presley's contention is that once the district court accepted the plea agreement, it was bound to apply only the stipulated base offense level and specific offense characteristics; therefore, by adding additional enhancements the district court modified, and thus breached, the plea agreement."

Judge Moore concluded that the agreement said nothing about Chapter Three enhancements, and the district court thus did not plainly err on that point.

Regarding the additional specific offense characteristics, though, Judge Moore found the issue "a much closer question." She reasoned that, although the plea agreement didn't specifically state that no other specific offense characteristics applied, at least one court had held that a similar plea-agreement provision "solidified where [the defendant] will start in Chapter Two of the guidelines," and "[o]rdinarily, we would construe such an ambiguity in favor of the defendant." But on plain-error review, ambiguity wasn't enough to win the day.

So, what did Presley give up in his plea agreement? He gave up the ability to challenge the stipulated offense characteristics. And he gave up his right to appeal any within-guidelines sentence, whatever that guidelines range might be.

And what did Presley get out of the agreement? Perhaps nothing. He gained the right to withdraw if the district court didn't accept the parties' stipulations. But based on the panel majority's reasoning, that might have been no benefit--after all, the agreement said nothing about additional enhancements beyond the stipulated ones.