Varghese Summersett

What happens at a federal plea or rearrangement hearing?

Most federal cases end up as pleas before the court. However a plea in federal court is very different than a plea in state court for a number of reasons. This is particularly true when compared with pleas in Texas.

At a plea in federal court, a judge will make sure the person entering the plea understands 1) their rights 2) the rights they are giving up 3) that they are competent to proceed and 4) that they are entering the plea voluntarily.

Why are federal pleas sometimes called rearraignments?

You will often hear a federal plea being referred to as a rearrangement. This is because the first plea at arraignment is generally a plea of not guilty so the Government has time to turn over all their evidence and the Defense has an opportunity to review all the evidence.

At rearrangement, or at a federal plea, the judge will often take a number of pleas at the same time. This is because most of the plea colloquy is the same.

Prepare to watch a federal plea hearing

As you prepare to go into federal court, if you are there to watch a plea, remember to leave everything in your car. Unless you are an attorney, you cannot take a phone or other electronic device into most federal courthouses. You will go through a metal detector. Try not to wear anything that’s metal. Even if you have shoes or a belt that would typically make it through a metal detector – expect to remove even those to get into a federal courthouse.

The federal plea colloquy

The judge will announce the parties – the attorneys for the government, and for the defense. The judge will also announce which cases (defendants) are being called for the plea.

Identity in a Federal Plea

The plea will begin with the judge making sure the person before them is the person who intends on entering the plea. The judge will ask their name on the record. The judge may ask the person the spell their name. If you were indicted or otherwise charged, the judge can correct your name or “true name” you on the record. The judge will then ask each defendant their age and how far they went in school.

Ability to Comprehend

The judge will ask if they can understand English and if not there will be a translator who is already sworn in that the judge will acknowledge on the record. The judge will ask if the person entering the plea is under the influence of any narcotics or alcohol. If the person is on prescription drugs, the judge will ask if the medication is affecting the ability to understand what is going on. Similarly, the judge will ask about any substance abuse treatment and medical treatment a person is going through to the extent that it might affect their ability to understand what is going on.

Disclosing a Magistrate’s Role

If a magistrate judge is taking the plea for a district judge, the magistrate will explain that the district judge will have to approve the report of the magistrate judge for the plea to be finalized.

Entering the Plea Blind

It is very important to understand that for almost all federal pleas, there is no agreement as to what the sentence will actually be. That is very different than state cases. There are a number of reasons for this. First, all sentencing in federal cases is done by the judge. There is no jury punishment in federal criminal cases. Second, even in rare cases where there is an 11(C)1(c) agreement, the judge has the final authority to accept or reject an agreement with the Government as to sentencing. Instead in the federal system, a person only knows the range of punishment they are pleading to – such as 10 years to life, or 5 years to 40 years.

Federal Criminal Plea Paperwork

With those preliminaries out of the way, the judge will move on to the actual plea. Plea paperwork will already have been submitted to the court prior to the plea. This includes the plea agreement as well as the factual resume (the facts the defendant is agreeing to as the basis for the plea.) The judge will ask if the defendant has gone over the paperwork with their attorney and if it is their signature on both documents.

Constitutional Rights

If the defendant has not been indicted yet, the judge will make sure the accused knows they have a right to force the Government to secure an indictment through a grand jury. If the defendant is giving up that right (because they have negotiated a better outcome) then the judge will ask if the person understanding that right, wishes to give it up.

The judge will ask of the person understands they don’t have to enter a plea of guilty and instead they could force the Government to a jury trial. At a trial the Government would have to prove each of the elements they set out with proof beyond a reasonable doubt. The defendant would have the right to confront and cross-examine witnesses, to use the subpoena power of the court, and to choose to testify at trial. The judge would make sure that the defendant, understanding those rights, was giving them up to enter the plea.

Typically in a plea agreement, the person is also giving up their right to appeal unless the sentence imposed is outside the statutory range or if there was some mistake in the mathematical calculations used to arrive at the sentence.

Sentencing Warnings during a Federal Plea

The judge will confirm that although the defendant should have talked to their attorney about the possible sentence a court might impose, that nobody – not the judge, probation, pre-trial services, the prosecutor, or the defense attorney – could make any assurances as to what the actual sentence would be. Once again, it is critically important to understand that to some extent a person is entering a plea blind as to what the actual sentence will be. This is particularly true because most statutory ranges (like 5-40 years) are massive. At one end of the spectrum is a somewhat reasonable amount of time, at the other is what is effectively a life sentence for most people.

The judge will inform the defendant that if they plead guilty, they will be found guilty but there will be an opportunity at (and before) sentencing for the defense to ask for leniency.

The judge will ask questions to ensure the plea is voluntary – free from any threats or specific promises that induced the plea.

The judge will also remind the defendant that parole has been abolished and so a person sentenced in the federal system will not be able to parole out.

The plea itself

The judge will ask if the defendant wants the indictment read. Generally, this is waived. The judge will call on the prosecutor to read the essential elements of the offense and the punishment range into the record.

After ensuring all these things – that the defendant understands what is happening, the charge, the punishment range, the factual basis for the plea, how sentencing works generally, and the rights the defendant is giving up by pleading, the judge will ask how the accused pleads.

Process After Federal Plea

The judge will inform the defendant that after a plea, the defendant will meet with U.S. Probation with their attorney present for a presentence report interview. This interview and other materials gathered by U.S. Probation will become the basis for a preliminary applicable sentence guideline range. The range is a recommendation and not mandatory for the court to follow. The court will also accept any submissions by the defense for departure from those guidelines or any other departures under 18 USC Section 3553(a).

After a plea of guilty, the judge will order the defense attorney to make contact with the probation department to set up a time to have a presentence report interview. The judge will issue a scheduling order that will tell the parties when the report is due, objections are due, sentencing materials are due, and when the case is scheduled for sentencing.

Federal pleas can be – but rarely are – changed after a person pleads guilty. The person changing the plea should expect to lose any credit they would have gotten for acceptance of responsibility.

If you have been charged with a federal criminal case, give a call to discuss your rights and strategies for trial or a plea.

Varghese Summersett is a premier criminal defense firm based in Fort Worth, Texas. Our attorneys focus exclusively on criminal law and represent clients charged with crimes at both the state and federal level. We handle everything from DWI to capital murder to white collar crime. Collectively, our attorneys bring together more than 100 years of criminal law experience and have tried more than 550 cases before Texas juries. All of our senior attorneys served as former state or federal prosecutors and four are Board Certified in Criminal law, the highest designation an attorney can reach. We are the firm people turn to when the stakes are high and they are facing the biggest problem in their lives. - Contact Varghese at  
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