be imposed for more than X years, the defendant will be allowed to withdraw his plea and stand trial. In such cases, the court decides whether or not to accept the plea on that condition. When that has been done, this member of the court has refused to accept the conditional plea unless the condition is at least flexible enough to permit sentencing under 18 U.S.C. § 3651 (split sentence). Sometimes it will not accept the plea unless it is to two counts, with a condition that sentence on the second count may be consecutive, with execution suspended and the defendant placed on probation to follow any term sentence on the first count.
These various forms of conditions provide essential tools for sentencing, and the court knows of no good reason why their use should be limited to unilateral tenders without any participation by the attorneys for the government. Approval or disapproval of any terms for plea or sentence are in the court's hands alone, in any event, and the court ought to have the benefit of any assistance it can be given.
In this case, Sarubbi did not offer a conditional plea, as he might have done unilaterally. He offered a plea as part of an agreement with the government, one term of which was that the request made by defendant was not binding upon the court. The government did what it was supposed to do: it did not oppose the request.
The fact that the request is not binding on the court in no way implies that it has no effect on sentence. The lack of opposition may persuade the court to impose a lesser custodial sentence than it might have otherwise. And, since sentencing was interrupted here, the court does not know now what sentence will be imposed. Counsel had nothing to say, presumably because he assumed that approval of the agreement was an approval of the request, which it was not. The defendant has not yet addressed the court. For all that is known now, it may be that the sentence will be non-custodial. The court's practice is to have at least two, and sometimes three tentative sentences in mind at sentence time, but it never arrives at a decision on sentence until it has heard counsel and the defendant in support of the request.
This practice is especially vital in cases disposed of by plea rather than trial, because sentence day is the only occasion the court has to study and evaluate the individual himself.
Every conscious effort is made to impose the same sentence, whether the defendant pleads guilty or is found guilty by a jury. No premium is placed on standing trial. Of course, a defendant who stands trial when the evidence against him is compelling, with no meritorious defense available, takes the risk that the sentencing judge will learn a great deal more about him, his participation in the offense and the extent of the crime, than he would ever learn from a presentence report and a sentence day. This is a risk of trial which a defendant presumably takes into account in seeking the advice of counsel. It is a risk that only the defendant and his counsel can evaluate.
The language and meaning of Rule 11(e)(1) and (4) are entirely clear. For a type A or type C agreement, if the proposed dismissals or the proposed sentence is not acceptable to the court, defendant must be allowed to withdraw his plea of guilty. For a type B agreement, the recommendation made or the agreement not to oppose are factors to take into account on sentence, but if sentence is other than requested, there is no right to withdraw the plea.
This is for the obvious reason that in a type B agreement it is part of the agreement itself that the parties understand that the court is not bound by the recommendation or request. Non-acceptance of the request is not a rejection of the agreement, and so is not within Rule 11(e)(1).
No agreement, whether of type A, B or C, is binding on the court. It may approve or reject any of these agreements. This being so, the Congress would have had no reason to use the critical language for the type B agreement unless it meant that the agreement could be both approved and satisfied even though the recommendation or request failed to persuade the court to impose the very sentence recommended or requested.
The motion for leave to withdraw the plea is denied. Sarubbi is to appear for sentencing on July 26, 1976, at 10 A.M.
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