Submission of a Written Factual Basis. Before the Court schedules a Rule 11 hearing to
consider the acceptance of a bargained-for plea, the parties must file with the Court a fully executed
copy of the Plea Agreement and a Factual Basis showing facts sufficient to establish guilt as to
each element of each offense as to which a plea of guilty is being offered. The Factual Basis shall
be signed by an attorney for the government and defense counsel, who shall certify that he/she has
discussed the Factual Basis with the defendant, and that the defendant does not dispute the Factual
Basis.
Advisory Committee Notes
New LCrR 11.2 substantially implements the provisions of the Superseding Order,
3:14mc005, concerning a written factual basis for the plea. While the Standing Order required a
factual proffer that included “offense conduct,” id. at ¶ 3, the Local Rules Criminal Subcommittee
determined that such requirement reduced to a local rule might not be supportable under Libretti
v. United States, 516 U.S. 29 (1995), which held that an “element of the sentence … falls outside
the scope of Rule 11(f) [now Rule 11(b)(3)].” See also United States v. Dunbar, 9 Fed. Appx. 411,
413 (6th Cir. 2001) (holding that “the required inquiry relates to whether there is a factual basis
for a finding that the defendant is guilty of the crime charged”). After a series of meetings with
stakeholders, the Local Rules Advisory Committee drafted Rule 11.2 to mirror the language of the
Superseding Order concerning certification by counsel. The requirements of the Superseding
Order for “offense conduct” have been split off and paired with the Rules concerning sentencing,
specifically LCrR 32.4, see infra.
