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Pre-Plea Estimates of Jail Time

By Steven F. Reich and Arunabha Bhoumik

It's a common scenario. You're representing the target in a federal securities fraud investigation. The U.S. Attorney's Office in Manhattan is ready to charge your client and the prosecutor asks if your client wants to cut a deal. Exhausted by the lengthy investigation and close to broke, your client wonders: “If I plead guilty, how much time will I get?” While you answer the best you can, you quickly add that only the sentencing judge can say for sure. “Well,” your client asks, “can't we at least pin down the government on its position on sentencing so I know what my likely worst-case scenario is?”

Unfortunately, in most cases you can't provide real comfort for your client. While the government almost certainly will give you an estimate of your client's sentencing exposure as part of the plea process, recent cases in the Second Circuit make clear that the government is unlikely to be bound by that estimate. And, once your client pleads guilty, he likely will be unable to withdraw his plea even if his sentence is much worse than what the government estimated before sentencing. To understand the risks that defendants face, we first need to explain why the government provides sentencing estimates at all.

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