Friday, November 04, 2011

Should judges disregard joint sentencing recommendations?

I've raised the question before on the blog and have given my opinion that judges should not disregard joint recommendations except in the very extreme case.

If a plaintiff and a defendant agree to a civil settlement, judges generally do not interfere. Why, then, should they in criminal cases (especially if judges are supposed to be umpires as Chief Justice Roberts has commented)?

The Herald covers the latest example in a medicare fraud case where the defendants were sentenced to 5 years more than the parties jointly had asked for:

U.S. District Judge Cecilia Altonaga gave the Guilarte sisters — who fled to Latin America in 2007 when they learned they were under federal investigation — five more years than prosecutors and defense attorneys had agreed on in their plea agreements, which charged a pair of healthcare-fraud and money-laundering conspiracies.

The judge said her initial intentions were to sentence the sisters to maximum prison terms — 30 years — but she was “tempered” by the disparity with lower sentences already imposed on other defendants in the Caridads’ case and related Detroit investigations.

The Guilarte sisters, who were indicted in Detroit in 2009, asked to have their case transferred to their hometown in Miami after they fled to Venezuela and were arrested in Colombia earlier this year. Miami is widely recognized as the nation’s Medicare fraud capital, where sentences keep getting stiffer and stiffer.

“We are tired of seeing the brazen, callous manner with which countless people defraud our Medicare system,” Altonaga declared. “We must stop the epidemic. ... Both of you took what you learned in South Florida and exported it to Michigan.”

Altonaga reminded Caridad, 54, and Clara, 57, that the United States welcomed both with “open arms” from Communist Cuba and that they returned the privilege by stealing millions from the U.S. government’s healthcare program for the elderly and disabled.

The Justice Department said the sisters — Caridad is a legal permanent resident, Clara a naturalized U.S. citizen — personally pocketed $3.8 million from their HIV-therapy scam in Detroit but none of that money has been recovered. Both sisters apologized to the judge and U.S. government, saying they “must pay” for their theft.

But the judge didn’t buy it, saying at one point to Clara: “Even though you say you must pay, I have every conviction you will not pay.”

I have never seen a judge go lower than a joint recommendation of the parties; only higher. But maybe I'm missing something. Any thoughts?


Anonymous said...

First mandatory minimums, then sentencing guidelines, effectively rendering us with less and less discretion at sentencing. Joint sentencing agreements/recommendations may be appropriate on more occasions than not. However, I am signing the J&C -- not the parties. See where I am going with this?

Anonymous said...

I hate to be the attorney standing there with client when a judge runs away with a sentence, disregarding the joint recommendation. However, I think it is fair to say that a judge's obligation as umpire during litigation phase changes during sentencing phase.

I think Judge A is right this time for two reasons. Like many fraud cases, Medicare/Medicaid fraud are treated less severely because there's no violence and no victim. But the community sees people getting super lean sentences even when the defendant reaps millions. Victimless or not, it is a much more sinister crime than a crime of passion. Second, because of the gaul of the defendants who so often ARE members of an exiled community; people who fleece the very country who gave them shelter when they most needed it.

We know that a sentence in a fraud case is rarely (Bernie Madoff)as severe as a sentence for drug, firearms, even immigration related crimes. So do the people who are engaged in the Med fraud cases. It is a much safer risk.

Bob Becerra said...

While understanding Judge Altonaga's outrage in that case, I am all for fulfilling parties' expectations in a plea agreement. It facilitates negotiations, and lends certainty to the process. I think Courts should give notice prior to sentencing that they will not follow recommendations and give the defendant the opportunity to withdraw the plea and go to trial.

Anonymous said...

silly point Bob, when the plea agreement you had your client sign says specifically that the judge may disregard the parties' recommendations and sentence the def. to the maximum.

Anonymous said...

If it is in the plea agreement, even if not an 11(c) then I agree the judge should give notice. If it is merely a joint recommendation at sentencing, then it should be given great weight but the judge should feel free to go higher or lower, exercising independent judgement, as advertised.

Anonymous said...

Bob Becerra' comment is right on. I would add that giving the judge the power to deviate from the recommendation (and judges actually deviating from time to time) is a strike against the argument that a trial tax exists. It shows that judges will slam those who deserve it whether they go to trial OR plea out.

Anonymous said...

I have a comment: this is why WE GO TO TRIAL. We dont trust judges and prosecutors to be fair and just. "I would rather die on my feet, than live on my knees."


Even when you "lose", you beat the plea in many cases. And when that doesn't happen, the client maintain's his or her dignity. And trial elevates teh integrity of the criminal justice system.

Plea bargains simply corrupt the constitution

Anonymous said...

5:17-Of COURSE there's a trial tax. It is anticipated in plea negotiations and exists right in the guidelines with the 3 point AR credit. The fact that a judge occassionally deviates from a sentencing recommendation and follows whatever it is her concious dictates is certainly not an strike against the trial tax. If you truly don't see the huge risk every defendant faces in going to trial, you're not going to trial too often -or is it you're not paying attention to the sentences you impose if you're a judge. Plus, how often does it happen? In my 20 years of practice, I think a judge has deviated from a joint recommendation maybe twice.

Anonymous said...

Better to lose a trial than win a plea.

Anonymous said...

Judge Altonaga certainly does not punish people who go to trial before her.

I tried a case before her in which the client testified, was acquitted of 1028A, but convicted of conspiracy. The jury clearly rejected my client's testimony that she was unaware of the CC fraud. The government sought an enhancement for obstruction, which was rejected by the Court. Despite the trial and the testimony, the Judge still gave the client a split sentence.

In another case, I represented a man who shot an armored truck driver in the knee. A plea agreement was reached which called for a stiff, but not overly harsh sentence. One of the victims of the robbery showed up and gave a very compelling statement as to the suffering my client inflicted, and suggested that the negotiated plea did not provide for enough time. The government stuck to the agreed recommendation, and the Judge followed it.

Judge Altonaga carefully weighs each case before pronouncing sentence, regardless of trial or plea.

If somebody is seeking a "guaranteed sentence", then you better look to a Rule 11(c) plea, otherwise there are no guarantees.

Suggesting that Judge Altonaga has a trial tax is completely unfair, and indicates a lack of knowledge of her practices and record.

Bob Becerra said...

at 2:08 pm: Although the plea agreement warns that the Court may not follow a joint recommendation, there is no way of knowing until sentencing in the federal system whether or not that will happen, because the Court wants to view a PSR before making that determination. The vast majority of the time the Court follows the joint recommendation. For those few times that the Court will not follow it, I believe notice should be given and an opportunity to withdraw the plea due to the frustrated expectations of the parties.