Hunter Biden’s Plea Deal Falls Apart – What happened? What you need to know about federal plea deals and sentencing
What happened to Hunter Biden in Federal Court
Hunter Biden, the son of President Joe Biden, has entered a plea on not guilty in federal court in Delaware. His criminal defense lawyers advised him not to enter in guilty plea to two misdemeanor tax counts of willful failure to pay federal income tax. This was part of the plea to avoid prison on a felony gun charge.
Biden was charged under 18 USC §922 (g) and (n) – possession of a firearm or ammunition by a prohibited person (drug addict.) This is a felony offense and a person convicted of it faces up to ten (10) years of federal incarceration.
Biden, despite having no criminal history or even a criminal record, was nevertheless considered a drug user or addict as he has a documented history of drug abuse which dates back to his early adult years.
Why did Biden withdraw from the plea agreement?
Prior to these proceeding, however, the judge questioned prosecutors as to whether the agreement would provide Biden with immunity from future prosecution. Since prosecutors could not confirm future immunity, Biden did not enter the plea. This was a very smart decision given that the prosecutors could not confirm if Biden was still under federal investigation.
If Biden and his criminal defense lawyers cannot come to an agreement with the federal government, his case will proceed to trial. Even if an agreement is reached, the federal judge in this case is not bound by it. Originally, the plea agreement called for a diversion program.
If the judge rejected the plea deal, however, Biden would have the ability to take back his plea and proceed to trial. Federal Judges are not bound by plea agreements or even the sentencing guidelines and may use them as simply advisory.
What is the Federal Pre-Trial Diversion Program
Under the Federal Justice manual Title 9-22.010, pre-trial diversion is designed to divert certain offenders from the traditional criminal justice system into an alternative system of supervision services (PTD). The PTD program provides another way for prosecutors to hold a guilty person accountable while at the same time protecting the public. Another goal of the program is to conserve judicial resources and provide opportunities for treatment, rehabilitation, and community correction.
What is a Sentencing Departure?
A federal court may impose a sentence outside the properly calculated guidelines through either a departure or a variance. It can also include a diversion program.
A departure is a deviation from the final sentencing range which is triggered by either the prosecution’s request to reward a defendant for either his or her cooperation or by other factors which considers a defendant’s circumstances. While sentencing departure are usually downward, the prosecution may request an upward departure from the sentencing judge.
Departures and variances are 2 different concepts. A departure is an authorized adjustment to a standard sentencing range within the guidelines system. They provide federal courts with a way to impose an appropriate sentence in an exceptional circumstance and permit a judge to impose an individualized sentence by considering mitigating and aggravating factors.
The most common departure is substantial assistance offered to governmental authorities under 5K 1.1.
Section 5K 1.1 provides a downward departure from guidelines if the government files a motion stating that the defendant has provided “substantial assistance in the investigation or prosecution of another person who has committed an offense”.
What is a Sentencing Variance?
A variance is an upward or downward change based on applicable guidelines which a judge may impose based on the application of other statutory factors.
Unlike a departure, a federal court is not bound by a specific set of considerations when it considers a variance. Variances aren’t subject to guideline analysis unlike departures. A court will consider the following for upward and downward variances:
- The nature and circumstances of the offense and history and characteristics of the defendant
- The defendant’s health issues
- Family circumstances
- The nature of the offense
- Cooperation with the government
What is the Federal Sentencing Process?
Federal sentencing is a 3-step process which occurs as follows:
- A court must properly determine the guideline range
- A court must determine whether to apply any guideline departure policy statements to adjust the guideline range up or down
- The court must consider all factors set forth in 18 USC 3553(a), including whether a variance is warranted
Federal sentencing procedure require a firm understanding of the federal statutes and case law. Prior to the Supreme Court’s decision in U.S. v. Booker, federal judges were required to follow the sentencing guidelines and only permitted to depart from the guidelines in extreme situations. See 18 U.S.C.§3553(b)(1).
The judge was only permitted to depart from guidelines in cases where he/she found “an aggravating or mitigating circumstance…not adequately taken into consideration by the federal sentencing commission when it formulated the guidelines.”
The United States Supreme Court’s decision in United States v. Booker, however, specifically stated that federal sentencing guidelines are only advisory and that a court does not need to follow them. The Booker decision went on to say that a federal court is only required to impose a sentence which does the following:
- Reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- To afford adequate deterrents to criminal conduct;
- To protect the public from further crimes of the defendant; and
- To provide the defendant needed education or vocational training, medical care, or other correctional treatment in the most effective manner.
It is very important to understand, however, that while the Booker decision permits federal courts to impose a sentence below the standard guidelines it does not change or alter federal law which requires a judge to impose mandatory minimum sentence for specific crimes for certain offenses.
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