APR -7 1997

MEMORANDUM FOR ALL UNITED STATES ATTORNEYS AND
ALL FEDERAL PROSECUTORS

FROM:                                          John C. Keeney
                                                     Acting Assistant Attorney General
                                                     Criminal Division

                                                     Donald K. Stern
                                                     Chair, Attorney General's Advisory Committee
                                                     of United States Attorneys

SUBJECT:                                    Charging Decisions, Plea Agreements and Substantial Assistance Motions and Their
                                                     Impact on the Sentencing Guidelines

CONTACT PERSONS:                Jay P. McCloskey, United States Attorney,
                                                     District of Maine, Chair of the Sentencing
                                                     Guidelines Subcommittee of the Attorney
                                                     General's Advisory Committee of United States
                                                     Attorneys (207-945-0344); and Vicki Portney,
                                                     Attorney, Office of Policy and Legislation,
                                                     Criminal Division (202-514-4182)
 

    In December 1995, the United States Sentencing Commission, in an oversight hearing before Congress, expressed concern that some federal prosecutors are exercising prosecutorial discretion to avoid mandatory statutory and guideline sentences by their use of charging decisions, plea bargain agreements, and substantial assistance motions. The Commission told Congress that the  inconsistent use of prosecutorial discretion undermines the goals of the Sentencing Reform Act, and that it would be studying "this troubling aspect of guideline sentencing." Also in December 1995, the Probation Officers Advisory Group expressed concern to the Sentencing Commission that "plea agreements do not always represent the true facts of the case"; that this prevents the correct application of the sentencing guidelines; and that "in some instances, [prosecutors] accomplish this by withholding information from the probation officer."

    It is difficult to respond to these claims or to determine whether they are legitimate without knowing the facts of each individual case. However, it is important for prosecutors to be aware of these views and to be sure that their actions comply with Department policy.

    The Principles of Federal Prosecution, found in the United States Attorneys  Manual section 9-27.000 et seq. (the "Principles"), and an October 12, 1993, bluesheet issued by Attorney General Reno (the "Bluesheet"), provide guidance to prosecutors regarding charging and plea agreement decisions. One of the primary purposes of the Principles is to assure that charging and plea bargaining decisions do not undermine the Sentencing Reform Act goal of reducing unwarranted sentencing disparity. The basic policy is that prosecutors must charge "the most serious offense that is consistent with the nature of the defendant's conduct, and that is likely to result in a sustainable conviction."  USAM 9-27.310. Prosecutors similarly should seek a plea to the "the most serious readily provable offense charged." USAM 9-27.410. These rules are subject to limited exceptions set forth in the Principles and the Bluesheet.

    As indicated above, the Principles seek to prevent circumvention of the sentencing guidelines through improper charging decisions and "charge agreements." In addition, the Principles seek to prevent "sentence agreements" that may undermine the sentencing guidelines. USAM 9-27.410.

    As explained in the Principles, sentence agreements must provide either for a sentence that is within the specified guideline range or one that is based on an appropriate departure from the range. If the sentence is based on a departure, the court must find that "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. §3553(b). See also Guidelines Manual,  §6B1.2(b) and (c) and Commentary. Thus, prosecutors are not free to recommend, or to agree to, a sentence that is outside the applicable guideline range but not based on an appropriate departure from the guidelines that is identified to the court. The Bluesheet did not alter this policy in any manner.

    The Principles establish certain procedures to foster the goals set forth therein. The Principles and the Bluesheet provide that charging and plea agreement decisions be made at an appropriate level of responsibility and be documented with an appropriate record of the factors applied. Bluesheet & USAM 9-27.130. Each office must have a formal system for approval of negotiated pleas with approval authority vested in at least a supervisory criminal prosecutor, who has the responsibility of assessing the appropriateness of the plea agreement under the policies of the Department of Justice. Bluesheet & USAM 9-27.450(b). In the context of charging decisions and plea agreements, the Principles require appropriate supervisory approval and an appropriate written record with respect to:

• a decision not to file an enhancement under 21 U.S.C. § 851 or not to pursue readily provable charges under 18 U.S.C. § 924(c) (Bluesheet and USAM 9-27.310(B));
  
  
• a decision to drop readily provable charges (Bluesheet and USAM 9-27.410(B));
  
  
• a decision to seek a departure based on a factor other than one set forth in Chapter 5, Part K of the Sentencing Guidelines(USAM 9-27.410(b)); and
  
  
• a decision to seek a substantial assistance motion under § 5K1.1 of the Sentencing Guidelines or motion pursuant to Rule 35(b) Fed. R. Crim. P. (USAM 9-27.410(b)).

    Finally, neither the Principles of Federal Prosecution nor Bluesheet authorizes prosecutors to hide relevant information from the court. Prosecutors should provide all reasonably relevant information to the United States Probation Office whenever possible so that an accurate and complete presentence report can be prepared. USAM 9-27.720.

    In order to ensure that the goals of uniformity and adherence to the sentencing guidelines are met, prosecutors must take care to follow the procedural requirements set forth in the Principles. Prosecutors may exercise discretion in charging decisions, plea agreements, and substantial assistance motions, but only if: 1) the decision is consistent with the Principles, 2) required supervisory approval is obtained, and 3) an adequate written record supporting the discretionary decision is created. Both prosecutors and supervisors who are involved in reviewing indictments, plea agreements, and substantial assistance motions should continue to give careful attention to the applicable procedures and the need to ensure compliance with the Department's plea bargaining and sentencing policies.