Originally Posted by Folinskyinla

Hi:

Even within the US, the practice varies wildly. In the Federal system, there is no binding plea bargain. The AUSA can only agree to RECOMMEND a particular sentence -- however, the Federal system requires a very formal hearing where the defendant is made very clear on what she is pleading to and she has to admit the factual basis. The AUSA must go through an examination of the defendant: "Do you admit to fact #1 that..." and so forth. And there is a warning that sentencing is up to the judge and not a matter of bargaining.

However, when the sentencing guidelines were mandatory, this allowed for bargaining as to what facts the person could plead guilty to. However, the Supremes have recently taken the "mandatory" out of the guidelines. [They have also taken factual findings supporting sentence enhancements from the exclusive jurisdiction of the judge -- this decision in favor of criminal defendants has had an adverse effect on aliens who go to trial, but further promotes plea bargains -- go figure].

California state practice is for a cursory "counsel admits there is a factual basis" for the plea. A lot looser that Federal practice.

An interesting case was "Chang" in the 9th Circuit. He was convicted in a check kiting scheme by which he stole over $100,000. The "aggravated felony" cutoff of a "theft crime" is $10,000. Chang plead guilty to one count of passing a bad check of $960 and was ordered to make restitution of $100,000 in addition to his prison time and fine. Aggravated felon or not. Former INS and the BIA certainly thought so.

I have a case which will involve a guilty plea & conviction in Federal Court where the amount involved in the plea was "an amount exceeding $5,000" -- the guy had been arrested as a major domo in a conspiracy in which he was only a bit player. He had known of the fraud ring, had refused to participate in it himself. However, several aquaintances in desparate need of money had asked him for help and he said "Call so-and-so." He made ZERO dollars off this casual act -- but it led to losses of $31,000 to the victims. The plea and conviction was entered into on September 26, 1996. His attorney had totally ignored the fact that the threshold for immigration purposes was to be lowered retroactively four days later from $100 K to $10K. [It is not considered malpractice for lawyer not to have a working crystal ball or other powers of clairvoyance, but I digress].

I was able to get him adjusted with a waiver [strangely, aggravated felony is not, per se, a ground of inadmissibility]. The question will come up when he goes to naturalize -- was he convicted only of theft of $5,000.01? I really don't know -- it will be interesting as a case of first impression.

Originally Posted by sunflwrgrl13

At the same time, you possibly used some foul language as one is wont to do when angry. And this guy is pressing charges against you, and this hasn't been thrown out of court yet?