Safe Havens

(E)  Limitations on Sentence Provided by the Plea Agreement.  If a plea agreement limits the sentence a court may impose on account of a given conviction, counsel can argue that no sentence greater than that provided under the plea agreement may be imposed on account of the offense of conviction.  The law frequently provides that if a plea is based on a promise that the sentence will not exceed a certain amount, the defendant may withdraw the plea if a greater sentence is imposed.[150]  It is therefore possible to say that the court may not legally impose a sentence greater than that provided for in the plea agreement.

            The Ninth Circuit has held to a similar effect in the context of determining the loss to the victim for purposes of determining whether a conviction constituted an aggravated felony fraud conviction.[151]  A similar conclusion could well be reached if a plea agreement specifies that the sentence will not exceed a certain level.  Such plea agreements are more common in state court than in federal court.

[150] See N. Tooby, Post-Conviction Relief for Immigrants § 6.41 (2004).

[151] Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (conviction of bank fraud for knowingly passing a $605.30 bad check held not to constitute an aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), as a conviction of an offense involving fraud for which the loss to the victim(s) exceeded $10,000, even though losses resulting from the entire scheme described in the PSR exceeded $30,000, since plea agreement specified loss from the count of conviction as $605.30).