Tuesday, December 04, 2007

Louis Robles gets 15 years

This was the obvious result after the judge rejected the agreement of the parties to a 10 year deal. I still don't believe a judge should reject a plea agreement worked out in our adversary system (previously discussed here and here). I wonder if the prosecutors still argued for 10 years at the sentencing hearing as they believed this was the appropriate sentence... I think the feds (or Judge Gold) should release Robles from the appellate waiver so that he can argue to the 11th Circuit that the judge's rejection of the deal was inappropriate. Wouldn't it be nice to get some clarity about this from the appellate court?

SDFLA Blog question of the day -- Why won't the government abandon its appellate waiver so that Robles can litigate (with the government's support) whether district judges should be permitted to reject plea agreements.


Miguel M. de la O said...


I understand why a defense lawyer (and a prosecutor) would be upset when a judge rejects an arms-length negotiated plea. While rejection of a plea should be done only in exceptional circumstances, judges do have a role to play in reviewing pleas. The government is a representative of the people, it is not the people. There has to be a check on the representative of the people. Without insinuating any untoward motivations in Mr. Robles' case, as a purely academic exercise, I can imagine the rare situation where the Government has offered an inappropriate plea due to corruption, laziness, or even simple incompetence. Again, this is not to imply such is the case here, but having a check on the Government in the form of judicial review of the plea has value. Simply because opposing counsel in an adversarial system reach agreement does not mean the result is fair. Ask Michael Tein. Why have more protections for a represented class in class actions than for society in criminal cases?

It may well be that Judge Gold should not have rejected the plea in the Robles case, I truly have no idea or opinion either way. On its face, the Government appeared to have good reasons for their agreement to the 10 year plea. However, it would be a mistake for an appellate court to say trial judges should have no oversight role over negotiated pleas. It is a valuable part of checks and balances.

Interesting topic. Maybe you should debate Judge Moreno at a Federal bar luncheon.

Anonymous said...

Miguel, you didn't answer the question: Should the government allow the appeal to go up?

Nice picture by the way, but how bout a nice red or green tie for the holidays?

South Florida Lawyers said...

That is a handsome picture of Miguel.

My vote -- let Robles take it up. Gov should argue for it too.

Commodore said...

Arrrgh Maties! It be time to set sail on this issue. What say yee about the ruffians in the Liberty City 7 case? Be it time that those scoundrels be punished - the ones wearing the badges I mean. Do you think Captain Kidd will try to free his miscreant crew in the face of an acquittal? Or, will there be two Arrangos, a shout from the crowd and off to appeals with yee!


David Oscar Markus said...

I disagree Miguel. It's a separation of powers thing.

First, this isn't a civil case where the lawyers may have a reason to do a settlement that is not in the best interest of the client -- which is apparently what happened in Tein's case.

In criminal cases, the government is supposed to argue for the sentence that does justice. Our government takes a very very tough view on what justice is. Here it thought 10 years was appropriate. A judge should have no role in rejecting a plea unless he thinks it is too high or if he believes the defendant is actually innocent (or for other procedural reasons, like an appellate waiver or booker waiver, etc).

In fact, the government could have dimissed the indictment if it chose to and re-indicted with a charge with a 10 year max. The judge would have had no recourse.

I'm not sure why the government did not do that in this case, except that it may have been afraid to offend the judge. But if it truly believes that 10 years is the right sentence, it should have fought for that and should have reindicted with a ten year max. At the very least, it should let Robles appeal.

Miguel M. de la O said...

David, it is a SOP issue. Sentencing is the Judiciary Branch's power as circumscribed by the Legislative Branch through the penalty assigned to the offense the Executive Branch charged.

As a policy matter, would it not concern you that the Executive Branch, in addition to making the decision to arrest and deciding the charges to file, could also decide the sentence via plea bargain with no role for the Judge (other than maybe giving less time)?

You are correct that this is a purely academic exercise because the Gov't could have filed different charges that would remove the Court's ability to sentence Robles to more than 10 years. That is the way SOP works. But the fact that the Executive may have greater power should not allow the Executive to openly invade the province of the Judiciary.

Another way to look at this issue is that a plea bargain is a contract between the Defendant and the Gov't. Each enters the contract voluntarily. They then ask the Court accept the agreement. In essence, they ask the Court to agree to the terms of the contract and thus also bind itself. If the Court cannot reject the plea, it is not voluntarily entering into the contract.

Finally, I agree the Gov't should allow Robles to appeal just to get some clarity/guidance in this area.

David Oscar Markus said...


Thanks for engaging me in the debate... I really enjoy the back and forth. Just a couple points:

I see the Court as a check on the Government, even at sentencing.

Here, the plea worked out by the parties was that the feds would dismiss all the counts, save two. Robles would agree to the stat max on each 5 year count to run consecutive. Why should a judge be permitted to reject this deal when the Government could accomplish the same thing without the judge's consent.

Also, the civil contract analogy only works when courts have to interpret the terms of the plea. Courts aren't parties to plea agreements. In fact, judges generally explain that they aren't bound by the factual or legal conclusions of the parties at sentencing.

This is different. The judge here would not permit Robles to plead to the two counts because his discretion to sentence above the statutory max on the two counts was taken away. But that is the executive's sole decision -- how to charge a case (as long as it acts in good faith, which it certainly did here). If it chooses to dismiss counts, courts should (and I think must) butt out.

Miguel M. de la O said...

Sorry for the delay in responding...work interfered.

You make one point at the end of your last reply I had not considered. I think I misunderstood what the Court did here. If I understand you correctly, the judge refused to let Robles plead to only two counts. I had understood that the Court was refusing to be bound to a 10 year sentence that was less than the max the Court could give to the pending charges. I now understand your point. The only pending charges would be the two counts to which Robles would be pleading, because the Government was "essentially" dismissing the others, thus Robles was pleading to the max. The Court was not being asked to agree to give Robles a lesser sentence. For reasons neither you nor I fully understand, the Gov't did not actually dismiss the other counts and instead wanted the judge to allow Robles to plead to less than all the counts.

In this scenario I agree with you. The executive is vested with the power to decide what charges to bring (with oversight by the GJ) and what charges to drop. The Judiciary has no basis for telling the Executive it cannot dismiss certain charges. However, it doesn't sound like the Court was barring the Gov't from actually dismissing the other counts. The question is whether Judge Gold could refuse to allow Robles to plead to less than all the counts. It seems like a pointless exercise because (as you have repeatedly pointed out) the Gov't could just dismiss the other counts. Yet they didn't.

I stand by my view, however, that the Executive cannot bind to the Judiciary to a lesser sentence, but it sounds like you and I agree on this point.