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Warren W. Dettinger, Plea Negotiation in the Sixth Circuit: The Binding Effect of a
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Warren W. Dettinger, Plea Negotiation in the Sixth Circuit: The Binding Effect of a
Sentence Recommendation in Federal Court, 10 U. Tol. L. Rev. 725 (1979).

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sentence recommendation in federal court. University of Toledo Law Review, 10(3),
725-746.

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Warren W. Dettinger, "Plea Negotiation in the Sixth Circuit: The Binding Effect of a
Sentence Recommendation in Federal Court," University of Toledo Law Review 10, no. 3
(Spring 1979): 725-746

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Warren W. Dettinger, "Plea Negotiation in the Sixth Circuit: The Binding Effect of a
Sentence Recommendation in Federal Court" (1979) 10:3 U Tol L Rev 725.

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Review 725

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Sentence Recommendation in Federal Court." University of Toledo Law Review, vol. 10,
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 PLEA NEGOTIATION IN THE SIXTH CIRCUIT:
THE BINDING EFFECT OF A SENTENCE
RECOMMENDATION IN FEDERAL COURT

I. INTRODUCTION

In United States v. White,' the Sixth Circuit Court of Appeals held that
a defendant is entitled to withdraw his guilty plea if the judge imposes a
harsher sentence than that recommended by the government pursuant to a
plea agreement entered under Rule 11(e), Federal Rules of Criminal
Procedure.2 This holding is a further example of the Sixth Circuit's policy
of encouraging plea negotiation. It also accords with the Sixth Circuit's
attitude toward giving a defendant engaged in the pleading process as much
information about his potential sentence as possible. This holding,
however, conflicts with prior interpretations of Rule 11 (e) in the Fourth
and Ninth4 Circuits.

1. 583 F.2d 819 (6th Cir. 1978).

2. FED. R. CRIM. P. 1 l(e) reads, in pertinent part:
(1) In General. The attorney for the government and the attorney for the
defendant or the defendant when acting pro se may engage in discussions with a view
toward reaching an agreement that, upon the entering of a plea of guilty or nolo
contendere to a charged offense or to a lesser or related offense, the attorney for the
government will do any of the following:
(A) move for dismissal of other charges; or
(B) make a recommendation, or agree not to oppose the defendant's re-
quest, for a particular sentence, with the understanding that such recommen-
dation or request shall not be binding upon the court; or
(C) agree that a specific sentence is the appropriate disposition of the case.
The court shall not participate in any such discussions.

(3) Acceptance of a Plea Agreement. If the court accepts the plea agreement,
the court shall inform the defendant that it will embody in the judgment and
sentence the disposition provided for in the plea agreement.
(4) Rejection of a Plea Agreement. If the court rejects the plea agreement, the
court shall, on the record, inform the parties of this fact, advise the defendant
personally in open court or, on a showing of good cause, in camera, that the court is
not bound by the plea agreement, afford the defendant the opportunity to then
withdraw his plea, and advise the defendant that if he persists in his guilty plea or
plea of nolo contendere the disposition of the case may be less favorable to the
defendant than that contemplated by the plea agreement.
3. United States v. Savage, 561 F.2d 554 (4th Cir. 1977).
4. United States v. Henderson, 565 F.2d 1119 (9th Cir. 1977), cert. denied, 98 S. Ct.
1586 (1978).
 TOLEDO LA W REVIEW [Vol. 10

Two indictments were pending against Wendell White. One charged

him with the unlawful possession of a stolen Treasury check. The second
indictment charged him and a co-defendant with the unlawful possession
of another stolen Treasury check, forging the signature and uttering it. At
his arraignment, White pled not guilty and was bound over for trial. As a
result of pre-trial negotiations, during which White was represented by
counsel, a plea agreement under Rule I l(e)(1)(B) was reached. White
agreed to plead guilty to all the offenses charged in the indictments. In ex-
change, the government agreed to recommend that White be sentenced to
concurrent three year terms on each indictment, with all but ninety days of
the sentences suspended. 5
White entered his guilty plea at a special court appearance. The district
judge was then made aware that a plea agreement had been made.6 After
fulfilling the colloquy requirements of Rule 1 (c), (d) and (f),7 the judge
informed White that the court would not be bound by the prosecutor's
recommendations under Rule 1l(e)(1)(B) if it accepted his guilty plea. In
response to the judge's inquiry into the voluntary and informed nature of
his plea, White stated he understood that the sentence recommendation
was not binding upon the judge. The judge then rejected defense counsel's
argument that White could withdraw his plea if the court did not impose
the agreed-upon sentence. At the subsequent sentencing hearing, instead of
imposing the recommended concurrent three year terms with all but ninety
days suspended, the judge gave White an indeterminate sentence under the

5. White faced possible sentencing of up to an $8,000 fine and up to thirty-five years

imprisonment. The theft of mail is punishable by a $2,000 fine or imprisonment for not more
than five years, or both. 18 U.S.C. § 1708 (1976). The penalty for forging, uttering and
publishing a writing with intent to defraud the United States is a $1,000 fine or imprisonment
for not more than ten years, or both. 18 U.S.C. § 495 (1976). White was also charged with
liability as a principal for causing the acts of his co-defendant under 18 U.S.C. § 2 (1976).
6. Although the court was made aware at this time that a plea agreement had been
reached, it was not informed as to the substance of the agreement until the sentence
recommendation was made at sentencing. United States v. White, 583 F.2d 819,820-22 (6th
Cir. 1978).
Under Rule I l(e)(2), the substance of the plea agreement should be disclosed to the court
at the time the plea of guilty is offered. The court of appeals, however, did not rule upon the
district court's failure to comply with this rule because it disposed of the case on other
grounds, and because the defendant did not raise this ground on appeal.
7. During the district court's colloquy with White, it determined that White had
discussed the plea with his attorney, that he understood the charges against him, and that his
plea was voluntarily made. The court also informed White that he had a right to plead not
guilty and that he waived his right to a jury trial by pleading guilty. Then the court informed
White of the maximum penalty he could face if his guilty pleas were accepted. Id. at 821.
Spring 1979] NOTES 727

Federal Youth Corrections Act.8 The judge did not allow White the
opportunity to change his plea. White thereupon appealed from his
conviction and sentence.
Upon White's appeal, the Sixth Circuit held that if such a plea
agreement has been entered, and the judge does not impose the
recommended or requested sentence, this judicial action is tantamount to
rejecting the plea agreement under Rule 1l(e)(4). The court reasoned that
to impose a different sentence was to "reject" the plea agreement.
According to the court, it was not the intention of Rule 11 (e) that the plea
agreement could be fulfilled by merely allowing the government to make a
sentence recommendation in court. To fulfill the plea agreement, the court
ruled, the sentencing judge must follow the Rule 1l(e)(l)(B) sentence
recommendation. Rule I l(e)(4), the court concluded, requires that the
defendant be allowed to withdraw his plea because the agreement was
"rejected."
This note will first discuss the development of the law regarding plea
negotiations prior to the enactment of Rule 11(e) in 1975. Then it will
examine the attitude of the Sixth Circuit Court of Appeals toward plea
negotiations generally as well as the various interpretations of Rule 11 (e) in
the literature and the case law. Finally, the decision in White will be
analyzed with reference to the Sixth Circuit's attitude toward plea
negotiations, and will be compared with the interpretations of the Rule in
other circuits.9

II. PLEA AGREEMENTS

A. Development of Plea Agreements

Plea negotiation probably began in America somewhere in the 19th
Century.'l The major impetus for plea negotiations in the United States has
8. 18 U.S.C. §§ 5005-5026 (1976).
Under the sentencing provisions of § 5010(b), the defendant may be released conditionally
under supervision at any time. However, he may also serve as long as four years in an
institution. At the sentencing proceedings, White's counsel had argued that under such
sentencing White would serve 19 to 27 months according to the guidelines that the institutions
were then following. This is a significantly harsher penalty than the 90 days called for in the
sentence recommendation. The district court judge rationalized the sentence given White on
the basis of his need for drug counseling which was available under the Act.
9. This note applies specifically only to federal sentence recommendations. Some state
courts, however, have also held that the defendant has no right to withdraw his guilty plea
where the trialjudge has rejected the state's sentence recommendation. See, e.g., Cruz v. State,
530 S.W.2d 817 (Tex. Crim. App. 1975).
10. Comment, New FederalRule of Criminal Procedure I I (e): Dangers in Restricting
the Judicial Role in Sentencing Agreements, 14 AM. CRIM. L. REV. 305 (1976).
 TOLEDO LA W REVIEW [Vol. 10

been to relieve the increasing backlog of cases on the criminal docket. To

some extent this has been helpful. By 1966 approximately 90 percent of all
criminal convictions were by pleas of guilty." Many of these are
undoubtedly the result of plea negotiations.
The types of plea agreements available are virtually unlimited. The
prosecutor can drop certain charges against the defendant, or allow the
defendant to plead guilty to a lesser offense than originally charged. He can
recommend a sentence to the court, or not oppose the defendant's sentence
request. The prosecutor can agree to a specific disposition of the case. A
plea of guilty may be entered in exchange for the defendant being sentenced
by a particular judge. Finally, the parties can also combine any number of
these to create a "package" agreement."
As a part of a plea agreement, the defendant may engage in other forms
of cooperation in addition to pleading guilty. He may be required to give
the prosecutor information as to how a certain crime was committed.
Everyone who was involved in the crime may have to be identified by the
defendant; the consideration he receives may depend upon his testimony
against his criminal cohorts. The defendant may also be asked to engage in
undercover investigations for the prosecutor. 13
The traditional advantages to plea negotiations are the savings in time,
effort and expense.14 The plea of guilty saves the police from being detained
in court for long periods of time. It also avoids any inquiry into their
investigation and arrest practices. 5 The prosecutor's burden is eased by the

A detailed account of the development of plea bargaining beginning with tribal societies
and its transmission through Anglo-Saxon and Post-conquest England to the United States is
available in Comment, The Plea Bargainin HistoricalPerspective, 23 BUFFALO L. REV. 499
(1974).
If. D. NEWMAN, CONVICTION, THE DETERMINATION OF GUILT OR INNOCENCE WITHOUT
TRIAL 3 and n.l (1966).
12. President's Commission on Law Enforcement and the Administration of Justice,
Task Force Report: The Courts 10-11 (U.S.Government Printing Office 1967) [hereinafter
cited as Task Force Report: The Courts].
The types of concessions the government can make in federal court are set out in FED. R.
CRIM. P. I I(e)(i). See note 2 supra.
13. Alderstein, Ethics, Federal Prosecutors, and Federal Courts: Some Recent
Problems, 6 HOFSTRA L. REV. 755, 782 (1978).
14. The arguments for and against plea negotiations contained in this note are far from
exhaustive. For an extensive list of materials detailing the arguments see Parnas & Atkins,
Abolishing Plea Bargaining:A Proposal, 14 CRIM. L. BULL. 101, 102 n.2 (1978).
15. D. NEWMAN, supra note 11, at 95-96.
Such possible police procedures as coercion of witnesses, improper search and seizures,
etc. are not examined when the defendant pleads guilty.
Spring 1979] NOTES

6
assurance of a conviction, and presumably, the case backlog is lessened.
By pleading guilty, the defendant relieves himself, the victim, and their
families of the exposure to the publicity and trauma which surrounds a
trial. It also serves as a justification for the sentencing judge to show
leniency to a deserving defendant. The judge's act of leniency in sentencing
is, in most instances, also shielded from the publicity and attention given to
a trial.' 7
The defendant receives the bargained-for concessions in exchange for
pleading guilty. Often these concessions will produce indirect effects which
are favorable to the defendant. Mandatory minimum sentences may be
avoided by charge reductions. 8 The defendant may avoid the ignomy
attached to certain offenses, especially sex offenses. Due to a charge
reduction or lenient sentence, the defendant may also become eligible for
parole at an earlier time. The additional effects of a charge reduction,
therefore, mitigate the harshness of the criminal code and serves to
individualize justice.

B. Problems of Plea Negotiations

"If conviction on a charge is to be determined in great part by skill of the
offender in bargaining with the court or in hiring a lawyer to bargain for
him, then our concept of impartial justice based upon facts and rules of
evidence becomes meaningless."' 9
Plea negotiation presents many constitutional implications in the area
of substantive due process. The guilty plea becomes an especially serious
matter when it is realized that the defendant is waiving many of his
constitutional rights. 2° For a waiver of these constitutional rights to satisfy

16. Id.
While it is normally presumed that plea agreements reduce the backlog of cases in the
courts, this is not necessarily true. In Maricopa County, Arizona, when plea negotiation was
eliminated, there was no appreciable increase in contested criminal cases. Berger, The Case
Against Plea Bargaining,62 A.B.A.J. 621 (1976).
17. D. NEWMAN, supra note 11,at 95-96.
18. Task Force Report: The Courts, supra note 12, at II.
19. Newman, Pleading Guilty for Considerations: A Study of Bargain Justice, 46 J.
CRIM. L.C. & P.S. 780, 790 (1956).
20. The defendant waives the fifth amendment privilege against self-incrimination,
Boykin v. Alabama, 395 U.S. 238, 243 (1969); the right to ajury trial, Duncan v. Louisiana,
391 U.S. 145 (1968); to confront one's accusers, Pointer v. Texas, 380 U.S. 400 (1965); to
present witnesses in one's defense, Washington v. Texas, 388 U.S. 14 (1967); to remain silent,
Malloy v. Hogan, 378 U.S. 1 (1964); and to be convicted by proof beyond all reasonable,
doubt, In re Winship, 397 U.S. 358 (1970).
 TOLEDO LA W REVIEW [Vol. 10

the requirements of the Due Process Clause, it must be voluntarily and

knowingly made.2 However, the defendant knows he will be penalized for
exercising these constitutional rights. It is made clear at the beginning of
the plea negotiation process that the defendant will receive a less favorable
sentence if convicted than he would if he pleads guilty. It then becomes
difficult to believe that his repentance, and not this inducement, caused him
to plead guilty. Nevertheless, the United States Supreme Court has held
that plea negotiation is constitutional.22 Many standards have been set,
however, for the fair administration of plea agreements.23
21. McCarthy v. United States, 394 U.S. 459 (1969).
22. North Carolina v. Alford, 400 U.S. 25 (1970).
In Alford, the Court did not find that the inducements to plea negotiate were so great as to
coerce a waiver of the defendant's constitutional rights. However, the Court has not always
required a standard of coercion before finding that the defendant's due proces rights were
violated. In United States v. Jackson, 390 U.S. 570 (1968), the Supreme Court held that the
death penalty provision of the Federal Kidnapping Act was unconstitutional. The Act
provided that the death penalty could not be imposed if the defendant pled guilty. Although
the Act did not coerce guilty pleas and jury waivers, it needlessly encouraged them.
23. For the plea agreement to be valid, the defendant must make a clear admission of
guilt. See, e.g., United States v. Untiedt, 479 F.2d 1265, 1266 (8th Cir. 1973). Absent a waiver,
an accused pleading guilty must be represented by counsel. Moore v. Michigan, 355 U.S. 155
(1957). The defendant must also be satisfied with his legal representation and have had a full
opportunity to confer with counsel about the case before the plea is entered. See, e.g., Colson
v. Smith, 438 F.2d 1075, 1079 (5th Cir. 197 1). The defendant must have full possession of his
faculties at the time the plea is offered. See Manley v. United States, 396 F.2d 699 (5th Cir.
1968); Birdwell, v. United States, 345 F.2d 877 (9th Cir. 1965). The court must personally
address the defendant and inquire, on the record, Boykin v. Alabama, 395 U.S. 238 (1969),
whether the plea was voluntarily made, with understanding of the charges, and whether there
was a factual basis for the charges. McCarthy v. United States, 394 U.S. 459 (1969). See
Irizarry v. United States, 508 F.2d 960 (2d Cir. 1974). To insure that the plea was made
voluntarily and with the requisite understanding, the defendant must have been made aware
of all relevant circumstances and likely consequences. Brady v. United States, 397 U.S. 742
(1970).
Compare these judicially determined requirements with FED. R. CRIM. P. 11 (c) and (d),
18 U.S.C. (1976) for a review of the requirements that have been codified. Rule 1l(c) and (d)
read as follows:
(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere,
the court must address the defendant personally in open court and inform him of,
and determine that he understands, the following:
(1) the nature of the charge to which the plea is offered, the mandatory
minimum penalty provided by law, if any, and the maximum possible penalty
provided by law; and
(2) if the defendant is not represented by an attorney, that he has the right
to be represented by an attorney at every stage of the proceeding against him
and, if necessary, one will be appointed to represent him; and
(3) that he has the right to plead not guilty or to persist in that plea if it has
already been made, and that he has the right to be tried by ajury and at that trial
has the right to the assistance of counsel, the right to confront and cross-
Spring 1979] NOTES

Although plea negotiation is constitutional and many safeguards have

been judicially engrafted into the practice, some fundamental problems
remain. Plea negotiation is basically an administrative activity rather than
an adversarial one, as our courts were meant to be.24 The prosecutor then
becomes the finder of fact.25 He is free to seek convictions without regard
for the adequacy of the sentence.26 Therefore, in the defendant's eyes, the
prosecutor becomes the criminal justice system. Correctional goals are
somewhat subverted in that defendants are chosen for leniency or
probation on the basis of their bargaining skills. Too often the needs of the
community for protection and the defendant for punishment or
rehabilitation may be overlooked. 27

C. Sixth Circuit Attitude Toward Plea Negotiations

Although it is difficult from a few cases to flesh out a court's attitude
toward an area of the law as broad as plea negotiation, some judicial
attitudes in the Sixth Circuit are discernible. First, the Sixth Circuit has
shown its sensitivity to matters concerning the defendant's willingness to
plea negotiate. In United States v. Brooks,25 the court held that evidence of
a defendant's offer to negotiate a plea was inadmissable in a criminal
proceeding against the defendant. While this issue is now dealt with in Rule
1l(e)(6), Federal Rules of Criminal Procedure, the court's rationale in

examine witnesses against him, and the right not to be compelled to incriminate
himself; and
(4) that if he pleads guilty or nolo contendere there will not be a further
trial of any kind, so that by pleading guilty or nolo contendere he waives the
right to a trial; and
(5) that if he pleads guilty or nolo contendere, the court may ask him ques-
tions about the offense to which he has pleaded, and if he answers these
questions under oath, on the record, and in the presence of counsel, his answers
may later be used against him in a prosecution for perjury or false statement.
(d) Insuring That the Plea is Voluntary. The court shall not accept a plea of
guilty or nolo contendere without first, by addressing the defendant personally in
open court, determining that the plea is voluntary and not the result of force or
threats or of promises apart from a plea agreement. The court shall also inquire as to
whether the defendant's willingness to plead guilty or nolo contendere results from
prior discussions between the attorney for the govenment and the defendant or his
attorney.
24. Dean, The Illegitimacy of Plea Bargaining,FED.PROBATION, Sept. 1974, at 21.
25. D. NEWMAN, supra note 11, at 90-91.
26. Parnas & Atkins, Abolishing Plea Bargaining:A Proposal,14 CRIM. L. BULL. 101,
106 (1978).
27. D. NEWMAN, supra note 11, at 103; Dean, supra note 24, at 21.
28. 536 F.2d 1137 (6th Cir. 1976).
 TOLEDO LA W REVIEW [Vol. lO

Brooks indicated its willingness to encourage plea negotiations. The court

reasoned that if such evidence was admissable, it would have a chilling
effect on the defendant's willingness to negotiate.
Second, the Sixth Circuit has clearly stated that if a defendant pleads
guilty, whether or not pursuant to a plea agreement, he is entitled to as
much information about his potential sentence as is possible to give him. In
order to accomplish this, the court has required strict adherence to the
procedural safeguards set out in Rule 11. Where the defendant was not
informed that a mandatory special parole term was to be included in his
sentence,2 9 and where the mandatory nature of the parole term was not
adequately explained to the defendant 30 the court has vacated the
conviction and sentence and given the defendant the opportunity to plead
anew. For this reason, the court has also refused to accept the assurance of
defendant's counsel that the defendant understood the full consequences of
his plea. 3' The court required that such assurances be given by the
defendant himself.
The court has also seemed to say, however, that once the defendant has
knowledge of all the facts and consequences of his decision on whether or
not to plead guilty, he will be bound by that decision. Therefore, the court
has allowed a conviction to stand where new parole guidelines were issued
after the defendant was sentenced upon his guilty plea even though such
new guidelines made the defendant's period of incarceration longer. 32 On
the other side, the court has upheld the sentence of a defendant which was
longer than that agreed to in plea negotiations with the government where
the defendant subsequently withdrew his guilty plea and elected to stand
trial.3 3 Without a showing of vindictiveness on the part of the sentencing
judge, the court would not allow the defendant to get the benefit of an
agreement that he did not keep.
After examination of the case law in the Sixth Circuit dealing with plea
negotiations, one detects no hostility toward the plea negotiation process.
In fact, the Sixth Circuit has traditionally looked favorably on plea

29. Timmreck v, United States, 577 F.2d 372 (6th Cir. 1978), rev'd, 47 U.S.L.W. 4579
(May 21, 1979) (the Supreme Court held that vacating the defendant's conviction and
sentence may be appropriate on direct appeal, but it is not appropriate in a collateral attack
as in Timmreck.)
While this case did not involve plea negotiations per se, it did involve Rule II require-
ments for pleading guilty. Since negotiated plea agreements are a species of the genus of
guilty pleas, most decisions concerning guilty pleas will also affect plea agreements.
30. United States v. Wolak, 510 F.2d 164 (6th Cir. 1975). See note 29 supra.
31. Phillips v. United States, 519 F.2d 483 (6th Cir. 1975). See note 29 supra.
32. Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977). See note 29 supra.
33. United States v. Cunningham, 529 F.2d 884 (6th Cir. 1976). See note 29 supra.
Spring 1979] NOTES

negotiations. It is sensitive to matters that will encourage defendants to

negotiate, including full disclosure about potential sentences and strict
adherence to procedural safeguards. Once the defendant has made his plea
decision, however, the Sixth Circuit has shown little willingness to let him
vary from its terms.

III. THE EFFECT OF SENTENCE RECOMMENDATIONS

UNDER FEDERAL RULE 11

Rule 11(e) sets out three possible types of plea agreements. A Rule
1l(e)(l)(A) agreement provides that the government will move for
dismissal of other charges if the defendant will plead guilty to the offense in
question. As a part of a plea agreement under Rule I l(e)(l)(B), the
government agrees to recommend a particular sentence, with the
understanding that the recommendation will not be binding on the court.
Rule 1l(e)(l)(C) provides for- an agreement by both sides that a specific
sentence is the appropriate disposition of the case. Unlike a type "B" plea
agreement, the court is bound to impose the agreed-upon sentence under
an 1 (,)(I)(C) agreement. This note will focus on the type "B" agreement
and it, binding effect upon the sentencing judge if the plea agreement is
accepted.
Rule 1l(e)(4) informs the judge of the appropriate procedure for
rejecting any Rule 1l(e)(l) plea agreement. The judge must inform the
parties of his decision to reject the plea agreement, advise the defendant
that the judge is not bound by the terms of the agreement, allow the
defendant to change his plea, and advise the defendant that if he continues
to plead guilty the disposition of the case may be less favorable than that
provided for in the agreement.
The non-binding effect of a type "B" sentence recommendation has
caused a curious question to arise in the federal courts. Since a Rule
1 (e)(1)(B) sentence recommendation is not binding on the court, thejudge
is free to ignore the recommended sentence and impose a harsher one. The
question is whether the judge who has ignored the sentence recommenda-
tion has rejected the plea agreement, thus allowing the defendant to
withdraw his plea under Rule I l(e)(4).
In 1975, Rule 11 was amended to increase the procedural safeguards in
the plea negotiation process. Rule 11 (e) was added at this time. Most of the
literature3 4 reviewing the 1975 amendments favor allowing the defendant
34. See Comment, New Federal Rule of Criminal Procedure 11(e): Dangers in
Restricting the Judicial Role in Sentencing Agreements, 14 AM. CRIM. L. REV. 305, 312
(1976); Comment, Revised FederalRule 11: Tighter Guidelinesfor Pleasin Criminal Cases,
44 FORDHAM L. REV. 1010, 1014 (1976); Note, Guilty Pleas - No Right to Withdraw the
 TOLEDO LA W REVIEW [Vol. 10

to withdraw his plea if the recommended sentence is not imposed. The

authors simply state that the judge is bound to impose the recommended
sentence if the plea agreement is accepted. If the judge does not impose the
recommended sentence, then he must allow the defendant the opportunity
to change his plea. Others argue that this literature fails to consider the
possibility that the plea agreement could be fulfilled by the act of making
the recommendation, even though the recommended sentence was not
imposed.
Contrary to the opinions of the scholars, the two circuit courts of
appeal35 which had considered the question ruled that a judge may validly
accept a type "B" plea agreement yet refuse to impose the sentence
recommended. In each case, the sentence imposed was more severe than
that recommended.
United States v. Sarubbi,36 a district court case, was the first reported
decision to actually interpret the binding effect of a Rule Il(e)(l)(B) plea
aggrement. There, the defendant agreed to plead guilty pursuant to Rule
I l(e)(1)(B) in exchange for the prosecutor's agreement not to oppose a
defense request for a particular sentence. At sentencing, the defense
attorney argued that if the sentence were other than that requested, the
defendant would be entitled to withdraw his plea. The court rejected the
requested sentence and counsel moved to withdraw the plea. The court held
that in a type "B" agreement, the sentence recommendation is afactorto be
taken into account by the judge in sentencing. But, if the sentence is other
than that requested, no right to withdraw the plea is conferred. The court
incorporated the dictum of United States v. Futera37 in its holding and

Guilty Plea Upon the Trial Judge's Rejection of the State's Recommendation - A New
Recommended Plea Procedure, 17 S.TEX. L. J. 343 (1976). Contra,Hoffman, Pleas of Guilty
in Federal Courts, 22 PRAc. LAW. 11 (1976).
35. United States v. Henderson, 565 F.2d 1119 (9th Cir. 1977), cert. denied, 98 S.Ct.
1586 (1978); United States v. Savage, 561 F.2d 554 (4th Cir. 1977).
36. 416 F. Supp. 633 (D.N.J. 1976).
37. 539 F.2d 329 (4th Cir. 1975).
In 1975, prior to the effective date of Rule 11 (e), the Fourth Circuit Court of Appeals ruled
in Futeralthat a federal judge was not required to allow a defendant to withdraw his plea if the
judge did not follow a sentence recommendation made pursuant to a plea agreement. The sole
condition attached to this decision was that the defendant be informed that the
recommendation would not be binding on the court. The court rationalized that in such a case
there is no lack of voluntariness or understanding on the defendant's part in entering his plea.
The government had kept its part of the agreement in making the recommendation. Hence,
the defendant was held to his part of the agreement.
Although Futeral was decided prior to the effective date of Rule II(e), it contained
significant dictum regarding the rule's interpretation. The Futeralcourt stated that "non-
Spring 1979] NOTES

said: "[n]on-acceptance of the request is not a rejection of the agreement"3

within the meaning of Rule 1l(e)(4).
The court concluded that a non-binding sentence recommendation
would not be valueless to the defendant. The recommendation, or lack of
opposition to a request, for a particular sentence may persuade the court to
impose a lesser sentence than it might otherwise be inclined to do. It is also
part of a type "B" plea agreement itself that both parties understand that
the court is not bound by the recommendation. Also, any agreement, "A",
"B" or "C", is "not binding upon the court" in the sense that the court may
accept or reject any of the proposed agreements.39 Hence, Congress would 40
have had no reason to use the critical language "not binding on the court"
for the type "B" agreement unless the agreement could be accepted and
fulfilled even though the court was not persuaded to impose the
recommended or requested sentence.
This rationale, then, set up a two step approach to accepting and
implementing a plea agreement. The first step involves the acceptance of
the plea of guilty under Rule 1l(e)(3), and allowing the appropriate party to
make the sentence recommendation or request. The second step is the
judge's decision on whether or not to impose the sentence recommended or
requested. Under the Sarubbiinterpretation of Rule 1 (e), the judge is not
limited in his options at this stage. The type "B" sentence recommendation
or request is a factor to be considered by the judge, but he can impose that
sentence or any other sentence allowed by law. In either case, the agreement
itself has been accepted and the defendant is bound by his plea of guilty.
The Fourth Circuit closely followed the Sarubbi rationale in United
States v. Savage.42 The defendant had bargained only for a sentence
recommendation by the government, which he knew was not binding on
the court. The government complied with the agreement by making the
recommendation, but the judge did not follow it in sentencing the

acceptance of the recommendation may not be a rejection of the bargain within the meaning
of new Rule II (e)(4)." Id. at 331 n. 1. This dictum became the basis for the District Court of
New Jersey's rationale in United States v. Sarubbi, 416 F. Supp. 633 (D.N.J. 1976), and the
Fourth Circuit's rationale in United States v. Savage, 561. F.2d 554 (4th Cir. 1977), the first
cases to interpret the rule.
38. United States v. Sarubbi, 416 F. Supp. 633, 636 (D.N.J. 1976).
39. See H. R. REP. No. 247, 94th Cong., 1st Sess. 6, reprintedin[1975] U.S. CODE CONG.
& AD. NEWS 678.
40. FED. R. CRIM. P. I l(e)(1)(B).
41. United States v. Sarubbi, 416 F. Supp. 633, 636-37 (D.N.J. 1976).
42. 561 F.2d 554 (4th Cir. 1977).
 TOLEDO LA W REVIEW [Vol. 10

defendant. The court held that the non-acceptance of the recommendation

by the trial judge was not a rejection of the plea agreement. Therefore, the
defendant need not be given an opportunity to change his plea.
On similar facts, the Ninth Circuit in UnitedStates v. Henderson43 held
that the judge is not bound to impose the recommended sentence in a Rule
1l(e)(1)(B) plea agreement. Therefore, if a harsher sentence is imposed
than that recommended, the judge need not allow the defendant to
withdraw his plea.
The Henderson court reaffirmed the Sarubbiand Savage rationales by
stating that it was the recommendation that was rejected, not the
agreement. It then went on to further develop its rationale by a close
analysis of the statutory language of Rules I l(e)(3) and (4). The court
concluded that while the rules concerning the acceptance or rejection of a
plea agreement may apply to the agreement itself, these provisions did not
apply to the sentence recommendations made under those agreements. If
paragraph (3) was to relate to the recommendations made in type "B" plea
agreements, the court reasoned, the draftsmen should have inserted the
words "recommendation or request" in that paragraph before the word
"disposition." If paragraph (4) was to relate to type "B" agreements, the
draftsmen should have inserted "recommendation or request" after the
words "plea agreement" in that paragraph. However, neither these words
nor similar words referring to subparagraph (1)(B) are contained in Rules
1l(e)(l)(B) and I l(e)(4). Finally, the court reasoned that, as a practical
matter, if the recommended sentence were binding upon the court,
subparagraph (1)(B) would be made surplusage by turning all (1)(B)
agreements into (1)(C) agreements," which are binding upon the court.45

43. 565 F.2d 1119 (9th Cir. 1977), cert. denied, 98 S. Ct. 1586 (1978).
44. It is generally agreed that (1)(C) agreements are binding upon the court, if the plea
agreement is accepted. They call for an agreement "that a specific sentence is the appropriate
disposition of the case." Notice also that in subparagraph (1)(C) there is no caveat that the
agreement is not binding on the court.
45. The Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal
Procedure, Committee on Rules of Practice and Procedure of the Judicial Conference of the
United States (Feb. 1978), reprintedin 77 F.R.D. 507, calls for Rule I l(e)(2) to be amended to
clarify the binding effect of a (1)(B) agreement.
The Advisory Committee Note states that a type "B" agreement is clearly different in its
binding effect than either a type "A" or"C" agreement. "[A]n agreement to recommend or not
to oppose is discharged when the prosecutor performs as he agreed to do." 77 F.R.D. at 532.
However, the court must ultimately accept or reject a type "A" or"C" agreement. In a type"B"
agreement, this is not so. There is no "disposition provided for" in such an agreement.
Therefore, a paragraph (3) acceptance is not necessary. Also, since the defendant knows of the
Spring 1979] NO TES

Prior to the Sixth Circuit's decision in White, then, both circuits that
had considered the question held that a defendant could not withdraw his
guilty plea if the sentencing judge did not follow a sentence recommenda-
tion under Rule 11 (e)(1)(B). These courts came to this conclusion through a
close reading of the statutory language - attempting to sense the statutory
interplay between the various subsections of Rule 11.
46
IV. United States v. White
Wendell White was charged with various federal offenses. He faced a
maximum aggregate sentence of up to an $8,000 fine, or up to thirty-five
years imprisonment, or both.47 Under Rule 1l(e)(l)(B) he negotiated a plea
with the government in exchange for the prosecutor's recommendation of a
sentence of two concurrent three year terms, with all but ninety days of the
sentences suspended. At a special appearance, prior to the sentencing
hearing, the trialjudge accepted White's guilty plea and the plea agreement.
The judge warned White that the prosecutor's sentence recommendation,
however, would not be binding upon the court, and that if the sentence
were other than that recommended, White would not be allowed to
withdraw his plea. White indicated on the record that he understood this.
At the sentencing hearing, the judge ignored the sentence recommendation
and imposed a heavier sentence on White. Over the defense counsel's
objections, the judge did not allow White to then withdraw his plea.
White appealed his conviction and sentence on the ground that Rule
1l(e)(4) required the judge to allow him to withdraw his plea since the
recommended sentence was not imposed. 4' The prosecution argued that

non-binding character of the recommendation or request, there is no need for a rejection of

the agreement under paragraph (4) with its required opportunity to withdraw the plea.
Therefore, the Committee proposes to add the requirement in paragraph (2) that "the
court shall advise the defendant that such recommendation or request is not binding upon the
court and that disproval will not require the court to allow withdrawal of the plea." 77 F.R.D.
at 530. With the inclusion of this provision it is hoped that the controversy being discussed in
this note will be eliminated. However, this proposed amendment seems to have the same
substance as adding "and we really mean it" to the provision of Rule I l(e)(l)(B).
46. 583 F.2d 819 (6th Cir. 1978).
The opinion, unanimously agreed in by Peck, Lively and Keith, Circuit Judges, was
written by Circuit Judge Keith.
47. See note 5 supra.
48. White also raised a second ground on appeal. He contended that since the prosecutor
had not argued in favor of the recommended sentence at the sentencing hearing, the
government had breached the plea agreement within the meaning of Santobello v. New York.
404 U.S. 257 (197 1). The Sixth Circuit Court of Appeals expressed no opinion on that ground
because of its disposition of the case on White's other claim.
 TOLEDO LA W REVIEW [Vol. 10

although the sentence recommendation was not followed, the plea

agreement had still been accepted by the sentencing judge. The prosecution
also argued that Rules 11(e)(3) and (4), regarding the acceptance and
rejection procedures, did not apply to a Rule 1l(e)(1)(B) plea agreement.
Rejecting these arguments, the Sixth Circuit Court of Appeals
determined that a defendant in federal court must be allowed to withdraw
his plea of guilty where the judge disregards an agreed-upon sentence
recommendation entered pursuant to a Rule 1l(e)(1)(B) plea agreement.
While the court recounted the interpretation of Rule 11(e) in Savage and
Henderson, it simply stated that the result did not accord with the clear
intention of the rule. The court reasoned that if this result in Savage and
Henderson had been intended by the Supreme Court,49 or by the Congress,
"it should be clear from the face of the Rule, and should not be inferred." 5 °
In rejecting the approaches to the interpretation of Rule 1 (e) by the
other circuits,5" the court emphasized the intent of the rule. Nowhere in the
opinion, however, did it specifically state what that intent was. The opinion
implies that the congressional intent in enacting the 1975 amendments to
the Federal Rules of Criminal Procedure (of which section 11 (e) was a part)
was to increase the protection of the defendant in the plea negotiation
process. To fulfill the rule's intent, the court decided, thejudge must impose
the recommended sentence. The mere act of making the recommendation
in court is not enough. The court found nothing in the legislative history, or
in the Notes of the Advisory Committee on the Rules of Criminal
Procedure, to indicate that paragraphs (3) and (4), dealing with the
acceptance or rejection of the plea agreement, were only to apply to type
"C" agreements. The court determined that both types "A" and "B"
agreements must either be accepted or rejected. The defendant could not be
held to his guilty plea while denying him the leniency he sought under these
types of plea agreements.
The court reasoned that the rationale used by the other circuits for
finding a type "B" agreement to be non-binding could also be used to find a

49. The enabling legislation granting in the Supreme Court the power to make
procedural rules is found in 18 U.S.C. § 3771 (1976). According to §§ 3771-3772, the Court is
to draft any new rules and submit its final draft to Congress. The new rules automatically
become effective ninety days after their transmission unless both Houses of Congress act to
block them. In practice, the Judicial Conference of the United States Supreme Court has
undertaken the responsibility for writing, reviewing and recommending the rules' adoption.
Note, Proposed Amendments to the FederalRules of Criminal Procedure, 14 WASHBURN L.
J. 76 (1975).
50. United States v. White, 583 F.2d 819, 826 (6th Cir. 1978).
51. See United States v. Henderson, 565 F.2d 1119 (9th Cir. 1977), cert. denied, 98 S.
Ct. 1586 (1978); United States v. Savage, 561 F.2d 554 (4th Cir. 1977).
Spring 1979] NOTES

type "A" agreement non-binding. The court analogized a Rule 1l(e)(l)(B)

plea agreement with a type "A" agreement. The type "A" agreement
provides that the government will "move for dismissal of other charges"
against the defendant in exchange for pleading guilty. The court stated that
a type "A" agreement is not accepted merely by allowing the government to
make the motion for dismissal of other charges. To be accepted, the court
must grant the motion for dismissal of other charges. If the motion is
denied, the agreement is rejected and the defendant is entitled to withdraw
his guilty plea.
The same must be said, according to the court, of a type "B" agreement.
Just as a prosecutor moves for dismissal of other charges under Rule
I l(e)(l)(A), likewise he makes a sentence recommendation under Rule
1l(e)(l)(B). If the denial of a motion in a type "A" agreement is a rejection,
so is a refusal to follow the sentence recommendation in a type "B"
agreement. Therefore, the judge must either impose the sentence
recommended or requested, or allow the defendant to withdraw his plea.
The Sixth Circuit has decided in White that a sentence recommenda-
tion or request, entered under a Rule I l(e)(l)(B) plea agreement, is not
merely afactorto be taken into consideration in sentencing. To accept the
plea agreement, the judge must impose the sentence recommended. If such
sentence is not imposed the plea agreement has been rejected in toto. In that
case, the defendant has the right to withdraw his plea.

V. DOES White COMPORT WITH THE INTENT OF RULE I I(e)

AND IS IT CONSISTENT WITH OTHER
SIXTH CIRCUIT POLICIES?

Rule I l(e)(l)(B), Federal Rules of Criminal Procedure, provides that

the agreement, by which the defendant pleads guilty in exchange for the
prosecutor's recommendation of a particular sentence, is to be made with
the understanding that the recommendation is not binding upon the court.
Despite this language, the Sixth Circuit decided in White that a defendant
in federal court must be allowed the opportunity to withdraw his plea if the
sentence he receives is other than that recommended.

A. An Analysis of Rule Jl(e)'s Language and Intent

The decision in White differs from the interpretation of Rule 11 (e) in the
Fourth and Ninth Circuits.52 In Savage, the Fourth Circuit made an

52. See United States v. Henderson, 565 F.2d 1119 (9th Cir. 1977), cert. denied, 98 S.
Ct. 1586 (1978); United States v. Savage, 561 F.2d 554 (4th Cir. 1977).
 TOLEDO LA W REVIEW [Vol. 10

important distinction between rejecting the plea agreement in toto and

allowing the sentence recommendation to be made, using that recommen-
dation as a factor in determining the defendant's sentence, yet imposing a
harsher sentence than that recommended. In such a case, the court held, the
defendant may be allowed to withdraw his plea in the court's discretion, but
he did not have a right to do so.
The Ninth Circuit, in Henderson,analyzed the statutory language more
closely than did the court in Savage. The result, however, was the same.
The Henderson court decided that the plea agreement acceptance and
rejection procedures embodied in Rules 1l(e)(3) and (4) did not apply to
the recommendation made, even if they did apply to the agreement as a
whole.
In White, the Sixth Circuit rejected this distinction, deciding that such a
two step process did not comport with the intention of the rule. The court
held that the intent of the rule clearly mandated finding that the agreement
itself was rejected if the recommended sentence was not imposed.
The court's function in statutory interpretation is to determine the
intent of the legislature and to apply that intent to the facts presented in the
case.53 The White court believed it had determined Congress' intent in Rule
11(e). The court, however, never states how it determined what the intent is,
or how its decision promotes that intent. Had it done so its decision might
have had a much stronger rationale.
The 1975 amendments incorporated some of the judicially determined
procedural safeguards into the Federal Rules of Criminal Procedure.54
This was not a mere housekeeping measure. It eliminated any doubts about
the remedies available to the defendant if these procedures were violated.
Due process would require that the bargain be enforced or the defendant be
allowed to plead anew, depending upon the facts of the case. 55 From this it
is clear that the Supreme Court and Congress intended to increase the
protection of the defendant in the plea negotiation process.
The White court hinted that this was the intent they recognized in
interpreting the rule. While this was the intent of Rule 11 as a whole,
however, it is somewhat out of context in analyzing the specific provisions

53. Thomas, Statutory Construction When Legislation is Viewed as a Legal Institution,

3 HARV. J. LEGIS. 191, 194 (1966).
54. Compare the judicial standards for the fair administration of plea negotiations with
the requirements of the Fed. R. Crim. P. 11(c) and (d) set out in note 23 supra.
55. See, e.g., Santobello v. New York, 404 U.S. 257 (1971); Timmreck v. United States,
577 F.2d 372 (6th Cir. 1978), rev'd 47 U.S.L.W. 4579 (May 21, 1979) (requirements of Rule II
must be strictly adhered to). See note 29 supra.
Spring 1979] NOTES

of paragraph (e)(1). "[W]hen performing its cognitive function of

ascertaining what a statute means, a court should temper its reading by
taking into account the proper context of the statute. 5 6 The binding effect
of a type "B" plea agreement should have been analyzed in the specific
context of paragraph (e)(l) itself. The White court did not come to terms
with the specific intent behind the numerous individual options under Rule
I I(e)(l). It did not see beyond the general intent of the amendments to
increase the defendant's protection.
When paragraph (1) is looked at as a separate entity, the legislative
intent to provide a number of options with varying effects is readily
apparent. Congress realized that each defendant is not equally deserving of
the same agreement. Some defendants are more blameworthy than
others. Other defendants are more willing or able to give more in
consideration for a plea agreement.57 Therefore, in creating several
optional types of plea agreements under Rule I I(e)(1), Congress gave
federal prosecutors the ability to tailor the agreement to the facts of the
case.
In failing to view paragraph (1)as a separate entity, the White court also
failed to take into account the increased flexibility that judges have in type
"B" agreements over their roles in type "C" agreements. In a type "C"
agreement, the judge is restricted to either accepting or rejecting the plea
agreement. If he accepts the agreement, the judge relinquishes his
sentencing authority to the prosecutor. In a type "B" agreement, however,
the judge's traditional power to sentence remains intact. 5' The non-binding
agreements are also a check upon unfair or oppressive agreements or those
not in the public interest.59 A type "B" agreement also allows the judge to
impose a lighter sentence than that agreed upon. This flexible type of
agreement allows the judge to make such determinations where justified.
Paragraph (1), then, takes on its own specific intent within the general

56. R. DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES 198 (1975).

57. See note 13 supra and accompanying text.
58. The diminuation of the judge's power over sentencing was heavily criticized in
Comment, New Federal Rule of Criminal Procedure 11(e): Dangers in Restricting the
JudicialRole in Sentencing Aggreements, 14 AM. CRIM. L. REV. 305 (1976). The author took
the position that plea agreements allowed the prosecutor to usurp the sentencing powers of the
judge. Therefore, it criticized the new amendments. But, the author believed that a type "B"
agreement bound the judge to impose the sentence recommended or requested. According to
the author, if such recommended or requested sentence was not imposed, the judge must allow
the defendant the opportunity to change his plea. Viewing a type "B" agreement as non-
binding, however, will alleviate much of this criticized result.
59. Cruz v. State, 530 S.W.2d 817 (Tex. Crim. App. 1975).
 TOLEDO LA W REVIEW [Vol. 10

Rule 11 framework of giving greater protection to the defendant in the plea

negotiation process. To determine the binding effect of a type "B"
agreement, close analysis must be made of the language within paragraph
(1) as if it were a separate entity.
First, the rule itself states that the type "B" agreement is to be entered
with the understanding that the recommendation or request is not binding
upon the court.6 ° This provision is additional and unique to type "B"
agreements. Therefore, the court cannot mechanically apply to it the
acceptance and rejection requirements of Rules Il(e)(3) and (4).
The White court, relying on the overall intent of the amendments,
ignores this distinction. As the court conceded, its holding results in
making subparagraph (B) mere surplusage since, under the White holding,
types "B" and "C" agreements would have the same effect. If the court is
bound to impose the recommended sentence in a type "B" agreement, or
reject the agreement entirely and allow the defendant to withdraw his plea,
there is no difference between types "B" and "C" plea agreements. It is well
settled that in type "C" agreements, the acceptance of the plea agreement
necessitates imposition of the agreed-upon sentence. If this sentence is not
imposed, the agreement has been rejected and the defendant has the right to
withdraw his plea. The same result occurs in a type "B" agreement,
according to the Sixth Circuit in White. If the recommended sentence is not
imposed,the agreement has been rejected and the defendant must be
allowed to withdraw his plea.
Thus, the Sixth Circuit has equated a type "B" plea agreement with type
"C" plea agreements. The drafters obviously intended, however, to provide
prosecutors and defendants with three options for a plea agreement.
Presumably, these three options were intended to correspond to different
levels of consideration a defendant will or can give in return for the plea
agreement. Since the Sixth Circuit has eliminated the non-binding sentence
recommendation as an option in plea negotiation, it has limited the types of
consideration the prosecutor may give in return for the defendant's
agreement to plead guilty.
Second, a distinction must be drawn between the recommendation
itself and the plea agreement. This sets up a two step approach to dealing
with Rule I1(e). The judge must first determine whether or not he will
entertain any plea agreement or negotiation in his court. If, however, the
judge allows a plea agreement to be made under Rule Il(e)(l)(B), allows
the sentence recommendation to be made, and considers the recommenda-

60. United States v. Sarubbi, 416 F. Supp. 633 (D.N.J. 1976).

Spring 1979] NOTES

tion as a factor in his sentence deliberation, he is not bound to impose the

actually recommended sentence.
The Sixth Circuit in White rejects this distinction. It states that this
result, the separation of recommendation and implementation, does not
comport with the (overall) intention of the rule (to protect the defendant in
the plea negotiation process). Had the court seen beyond that overall
intention and recognized the several optional types of plea agreements
provided by the drafters in Rule Il(e)(l), the result in White might have
been different.
Finally, in analyzing the language of the rule, the court in White
omitted any mention of its legislative history. As the amendments were
originally proposed to Congress by the Supreme Court, Rule I l(e)(l)
contemplated a different scheme for the types of plea agreements
available. 6' A provision for an agreement "that a specific sentence is the
appropriate disposition of the case ' 62 was not mentioned in these proposed
amendments. This provision was included by Congress presumably
because it felt that some type of truly binding sentence agreement was
necessary. The language of the Supreme Court's proposed amendments
were then incorporated into subparagraphs (A) and (B). The additional
provision added by Congress was incorporated into subparagraph (C). It is
clear, then, from the language of the rule, and its legislative history, that
Congress intended three types of plea agreements to be available.

B. White's Consistency with PriorSixth Circuit Statements

Affecting Plea Negotiations
On balance, the decision in White is consistent with prior Sixth Circuit
statements regarding plea negotiations, but not perfectly so. The cases in
the Sixth Circuit have shown three trends which touch on plea
negotiations. First, the court has favored a policy of encouraging plea
negotiations. 61 Second, the court has stated that a defendant is entitled to
as much information about his potential sentence as is possible to give him
when he pleads guilty. 64 Finally, the court's policy has been that once the

61. The final draft of the 1975 amendments was submitted to Congress on April 22, 1974.
They are recorded in H.R. Doc. No. 292, 93d Cong., 2d Sess. Ill(1974). These proposed
amendments have conveniently been reprinted in Note, ProposedAmendments to the Federal
Rules of Criminal Procedure, 14 WASHBURN L.J. 76 (1975).
62. FED. R. CRIM. P. 1(e)(l)(C).
63. See note 28 supra and accompanying text.
64. See notes 29-31 supra and accompanying text.
 TOLEDO LA W REVIEW [Vol. I0

defendant has made his decision on whether or not to plead guilty, with
knowledge of all the facts and circumstances, it will hold him to his
decision.65
In White, the Sixth Circuit is clearly being sensitive to matters
regarding a defendant's willingness to plea negotiate. There is no doubt
that if defendants know that the sentence recommendation or request is
merely advisory, and not binding, they will be less willing to negotiate for
such an agreement. The court fails, however, to take into account that this
is only one of three optional types of plea agreements for which a defendant
may negotiate. There may be cases in which the defendant may not be in a
position to negotiate for a binding sentence agreement. The evidence
against the defendant may be compelling. The defendant may be unable to,
or refuse to, testify against his cohorts, or offer other consideration in order
to get a more favorable plea agreement. In this situation, the court's
elimination of the option for a non-binding sentence recommendation may
foreclose the defendant from obtaining any type of plea agreement. If, on
the other hand, the circumstances warrant it, the defendant may always
negotiate for a binding agreed disposition of his case under Rule
I l(e)(l)(C).
Even though the sentence recommendation under Rule ll(e)(l)(B) is
not binding, the defendant still has an incentive to negotiate. As recognized
in United States v. Sarubbi,66 such a recommendation may have a
persuasive influence upon the court. It would seem especially influential
where the judge has agreed in advance to listen to it. If this is the best
agreement the prosecutor will make, the defendant may be inclined to take
his only chance on leniency. An experienced prosecutor should know the
sentencing propensities of the judges within the district and the likelihood
of their imposing the sentence recommended.67 Obviously, this imposes an
obligation of good faith negotiation on the prosecutor; however, no
negotiation system could survive long on superficial promises.6"
By allowing a defendant the right to withdraw his plea if the
recommended or requested sentence is not imposed, the court has also
furthered its policy of giving the defendant as much information as possible
about his potential sentence. In White, the court has said that the defendant
must not only know what sentence he may possibly receive or what

65. See note 32 supra and accompanying text.

66. 416 F. Supp. 633, 636 (D.N.J. 1976).
67. See D. NEWMAN, supra note 11, at 82.
68. Id. at 99.
Spring 1979] NOTES

sentence he is likely to receive, but the defendant must know exactly what
sentence he will receive. This decision appears to be one step beyond what
the Sixth Circuit has previously ruled on the matter.
In its decision in White, however, the court seems to be softening its
position on holding the defendant to his decision on whether or not to
plead guilty. It cannot be said that White did not know what he potentially
faced in sentencing as there was no claim of inadequate representation by
counsel. The district court judge also took pains to determine that White
understood the non-binding nature of his plea agreement. Yet, with all
these uncertainties White made his decision so as to further his interests as
best he could. In a case like White, where the defendant has been fully
informed that the recommendation is not binding and that he will not be
allowed to withdraw his plea if a harsher sentence is imposed, it seems
unfair to allow the defendant to reap the potential gain from such an
agreement, i.e., the lighter sentence, while taking none of the risks. It is also
difficult to see that the sentence given White came as any more of an
unpleasant surprise to him than the change of parole guidelines came to the
defendant in Ruip v. United States.69 In Ruip, however, the Sixth Circuit
held the defendant bound to his decision.
Therefore, the decision in White reaffirmed one policy regarding plea
negotiation, extended another, and was a withdrawal from a third. In each
policy, the focus was shifted ever more toward protecting the defendant in
the plea negotiation process. Apparently the Sixth Circuit feels this is the
best method to foster and encourage plea negotiations and to vindicate the
overall congressional intent behind Rule 11 - protection of the defendant
in the plea negotiation process.

VI. CONCLUSION

In White, the Sixth Circuit held that a defendant in federal court has the
right to withdraw his plea if the judge has imposed a harsher sentence than
that recommended under a Rule 1l(e)(l)(B) plea agreement. The court in
White based its interpretation on the intent of the rule as it perceived that
intention - protection of the defendant in the plea negotiation process.
But this interpretation ignores Congress' intent to give the defendant and
the prosecutor three distinct options for which to negotiate. The Sixth
Circuit's decision equates type "B" and "C" plea agreements, and
eliminates the non-binding sentence recommendation, type "B", as an
option.

69. 555 F.2d 1331 (6th Cir. 1977).

746 TOLEDO LA W REVIEW [Vol. 10

In this decision, the Sixth Circuit has reaffirmed its policy of

encouraging defendants to plea negotiate. It has also extended its
requirement that defendants pleading guilty are to receive as much
information about their potential sentences as is possible to give them.
Finally, the court has weakened its position on holding the defendant to his
decision on whether or not to plead guilty.
This decision conflicts with the interpretation of Rule I1(e)(l)(B) in the
Fourth and Ninth Circuits. Due to the great importance of plea
negotiations in our system of criminal justice, this conflict between the
circuits makes this issue ripe for Supreme Court review.

Warren W. Dettinger