Justice Thomas' Misleading Statement in Solo Dissent about Maximum Exposure Considered in a Plea Agreement (6/20/26)

In Hunter v. United States, 608 U. S. ____ (2026), SC here and GS  here [to come], the Court held (from syllabus):

An agreement [plea agreement] not to appeal a sentence is unenforceable when it would result in a miscarriage of justice—meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.

That’s a broadly stated general rule that will be fleshed out in its application. However, I will not discuss the holding further. Rather, I focus on a misleading statement made by Justice Thomas in his solo dissent that states a common misconception about plea bargaining.

Justice Thomas states (Slip Op. 39 of pdf, indicating p. 1 of dissent here, emphasis supplied by JAT):

Thanks to the [plea] agreement, Hunter received a 51-month prison term, followed by three years of supervised release, less than 2% of the prison time to which the indictment exposed him.

No competent lawyer negotiating the plea would have negotiated against the maximum suggested in Thomas’ statement; rather they would have negotiated against the sentence ranges provided by the Guidelines. I demonstrate with a simple example:

Assume that a taxpayer is convicted of 3 counts of tax evasion, with each count carrying a 5-year maximum sentence. In theory, that might permit "stacking" to reach the maximum sentence of 15 years if convicted of all counts. In fact, the Guidelines Offense Level maximums range from 6 months for tax losses from $2,500 or less to 36 for more than $550 million. Assuming no other adjustments (such as criminal history, etc.), looking at the maximum Offense Level of 36, the Guidelines Sentencing Table maximum  range is 188-185 months (about 16 years). Most tax evasion convictions involve tax loss far less than $550 million, so the realistic range is far less than 25 years.

I illustrate with a more realistic tax loss example: Assume tax evasion loss of, say, $20 million (aggregate on 3 counts) producing a Guidelines Offense Level of 26 and Sentencing Table range of 63-78 months (about 5-6 years), again assuming no other adjustments.

Since we are considering a plea agreement, assume in the same example, the taxpayer would qualify for the acceptance of responsibility downward adjustment of 3, which lowers the Guidelines Offense Level to 23 and Sentencing Table range to 41-51 months, say about 4 years. (I assume no other adjustments or criminal history.) Hence, it is misleading to simply aggregate statutory maximums on the counts charged in considering the benefits of a plea bargain to one or perhaps two counts.

Further, no competent lawyer negotiating such a plea agreement (which often involves dropping charged counts or forgoing uncharged counts) would brag to the taxpayer/defendant/client that the plea agreement avoids 98% of the incarceration exposure. The concept of relevant conduct includes in the sentencing factors (most prominently the tax loss in tax crimes) the tax loss on the dropped counts. When that occurs, the Probation Office’s PSR will usually include a statement that, at least for the dropped counts, the dropped counts do not affect Guidelines calculations.

So, Justice Thomas' ill-considered notion that the defendant in Thomas got a hell-uv-a-deal is just nonsense which is not uncommon among the Justices.