So what had the client concerned? Specifically, it was the understanding that although the prosecutor had made an offer the client wanted to accept, the judge could sentence my client to anything within the realm of the sentence range for the crime, including the maximum. I told my client that his understanding of the plea agreement was correct and the judge didn’t have to accept the agreement he wished to enter with the sentencing recommendation made by the prosecutor.
Unfortunately, even the judge can’t promise to give a defendant the minimum without hearing all of the mitigating (that’s the good things) and aggravation (those are the bad things) about the defendant.
From U.S. v. Gregory A. Glosser, No. 08-4015:
Although we recognize that the court’s references to the ten-year mandatory minimum stemmed from a desire to ensure the defendant understood the minimum time he faced (he had previously
been incorrectly informed that he faced a statutory minimum of five years), we agree with the government that the premature announcement of sentence constitutes procedural error that requires we vacate the sentence and remand for further proceedings.
The court explained that the applicable minimum sentence was ten years unless he cooperated and the government made a motion for a downward departure, and the court also made clear
that the government had not promised to make such a motion. The court further stated, “The only promise or prediction that I can make to you at this moment is there is nothing that would cause me, from what I’ve seen in this case and have heard of your background, nothing that would cause me to sentence you any more than what Congress mandates I must do, a minimum of ten.”
AUSA: Your Honor, if I may, I just want to be clear because I had heard you when you stated initially that your best guess would be that you would impose that minimum sentence based on the facts you have before you now. I just want to make it clear we haven’t taken a position as to what sentence—
Court: I fully intend that the government will stand up here and ask for more than ten years, but I haven’t heard anything in this case—and I’ve heard more about this case probably than any case I’ve ever had with all of the hours we spent in court, all of the facts presented, all of the filings. So I can’t imagine that there’s anything in this case that would surprise me, and that he even admitted a felony . . . that you didn’t tell me about. This is a case, as far as I’m concerned
from what I’ve seen, that Congress has got it at the maximum—at ten years to me is a stiff sentence, and the mandatory minimum ten years—I can’t imagine that I’ve promised him anything that I wouldn’t do. I fully expect you’ll ask for more, and I fully expect that I’ll find
a reason not to give it to you.
AUSA: Okay. I just want to make it clear that the Court isn’t foreclosing the government from presenting any evidence as we go forward to sentencing.
Court: Oh, no.
AUSA: Thank you.
Court: But, I mean, I haven’t seen a prior record that would justify more than ten. I haven’t seen anything about this that would require more than ten. And so I’m making that promise to [defense
counsel] and Mr. Glosser because I intend to carry it out and articulate many reasons why ten is, if anything, more than sufficient, more than reasonable, maybe even excessive; but that’s what
Congress says. Ten is it, and that is my promise. But you can present and make your record . . . . You will have that ample opportunity to present all of those facts to this Court so that if Mr. Glosser ultimately appeals his sentence, the Seventh Circuit Court of Appeals can say, “You’re right. Judge McCuskey made a mistake. Mr. Glosser’s wrong. The government’s right. He gets a
greater sentence than ten years.” That opportunity will be made. You’ll have a chance to make your record, and Mr. Glosser will have an opportunity to throw open the door to that cross appeal
on whatever record you make at sentencing. But I’ve made it clear where I’m at. Mr. Glosser, do you have any questions where I’m at?
Glosser: No, your Honor. You’ve made it very clear.
You already can guess what happened, can’t you? The government appealed and Judge McCuskey was overruled. Now Mr. Glosser will be resentenced by another judge.