Suppose a US federal attorney/prosecutor brought a case before a US federal court and the defendant is accused of committing a federal crime. The law says that the defendant can be imprisoned up to 5 years for that crime.

Can the federal attorney propose to the court/judge that the defendant should be imprisoned only for 2 years (for example), in case the jury agree on a gulity verdict? Is the court/judge bound by this proposal or can the court/judge still impose a higher sentence than the US federal attorney proposed?

  • Edited title to prevent accusing between state attorney in the sense of a government attorney and state government attorney in the sense of a parallel state court criminal case prosecutor when there is a pending federal criminal case.
    – ohwilleke
    Commented Sep 2, 2021 at 0:57

2 Answers 2


After a defendant is convicted at trial in a federal court and when the death penalty is off the table (if it's on the table there's a different process), a sentencing process starts. This process is based around the US Sentencing Guidelines, which is a book of rules to calculate how serious all of the defendant's conduct was (on a scale of 1 to 43) and how to combine that with their criminal history to determine a recommended sentence range. The federal probation office investigates the details of the crime and produces a report applying the guidelines to the defendant; each side can make objections to this report (e.g. the defense might claim the defendant really had a minor role in the crime, while the prosecution might claim that he abused a position of trust), and the report and objections go to the judge. The probation office might also produce a sentence recommendation, which goes to the judge and might or might not go to the parties (it depends on the court).

At sentencing, the judge reviews the report and gives each side a chance to comment on it. She has to consider all of this in issuing a sentence, and if there are any disputes she has to resolve them. However, she's free to make her own decisions on applying the Guidelines even if the probation office, prosecution, and defense all agreed on something else. Also, she can depart from the Guidelines range under rules laid out in the Guidelines, or she can set it aside entirely and issue what she considers to be an appropriate sentence between the statutory minimum and statutory maximum.

For plea bargains, it can work differently (but doesn't have to). Most plea bargains will say something about sentencing, but it can be either a recommendation or a binding agreement. If it's a recommendation, the judge will consider it but can make her own decisions just like if the defendant was convicted at trial (and this isn't grounds to withdraw the plea). If it's binding, the judge can still choose to accept or reject the plea bargain. If she accepts it, she has to sentence based on the agreement; if she rejects it, the defendant can withdraw his plea.


Can the federal attorney propose to the court/judge that the defendant should be imprisoned only for 2 years (for example), in case the jury agree on a guilty verdict?

Yes. This is common.

Is the court/judge bound by this proposal or can the court/judge still rule a higher sentence than the US federal attorney proposed?

The judge is not bound by the recommended sentence and can impose a higher sentence instead.

If the conviction arose from a guilty plea that was conditioned upon judicial acceptance of its terms, there are some circumstances when the guilty plea can be withdrawn and the case can go to trial if the judge takes this action, although that is the exception and not the rule. Usually, instead, a guilty plea with a prosecutor recommended sentence comes with the warning that the judge doesn't have to follow the prosecutor's recommendation, and when that happens, the guilty plea cannot be withdrawn even if the judge's sentence is much more severe than the prosecutor requested.

On appeal, a federal criminal sentence can be overturned if it unreasonably deviates from the federal sentencing guidelines in a manner that is an abuse of the judge's discretion. The charges brought by the prosecutor and the manner in which the prosecutor has presented the case, play a major role in determining which sentencing guidelines apply and are used to evaluate a federal criminal sentence on appeal. Failing to heed the recommendations of a prosecutor tends to favor an appeal's court determination that the judge abused his discretion in setting the sentence relative to the sentencing guidelines (particularly on factors like whether the defendant cooperated with the prosecution).

But, ultimately, this kind of appeal is hard to win even when the prosecutor's recommendation is disregarded, especially if the judge articulates in a written opinion or in an oral statement on the court record the reasons that the judge decided to deviate from the prosecutor's recommendations for legally recognizes grounds for doing so.

For what it is worth, in practice, it is highly unusual for a judge to impose a sentence more severe than the prosecutor has requested. But, it does happen.

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