Such a plea agreement means that, if the court is not going to accept the government’s recommendation, the defendant gets an “out”– if the judge is going to punish him more severely than the government recommended, he can withdraw the plea. Pleas with this provision are obviously more binding than an “open” plea– one in which the government may make a recommendation, but the court can disregard it and the defendant is stuck.
There was a moment in Sid Backstrom’s guilty plea hearing when this issue surfaced. Frank Trapp asked if the court had accepted the plea agreement. He was asking in lawyer code: “Are you agreeing to be bound by the 2.5 year ceiling.” The judge said he was.
While Backstrom Plea Agreement had the provision I am talking about, Zach Scruggs plea agreement did not. This, and the proceedings last week (which seemed very close to what I thought would happen, but I gather not for some on the defense side) probably accounts for the conclusion of Zach’s sentencing memo: ““[I]n the event that the Court, after having reviewed the facts, circumstances, and arguments surrounding this plea and the Government’s recommendation, is not inclined to accept the recommendation, Zach Scruggs asks for the opportunity to discuss the matter in a pre-sentencing conference with the Court and the Government.”