What to Expect in the Jared Fogle Case

INDIANAPOLIS, IN - AUGUST 19:  Jared Fogle leaves the courthouse on August 19, 2015 in Indianapolis, Indiana.  Fogle was part
INDIANAPOLIS, IN - AUGUST 19: Jared Fogle leaves the courthouse on August 19, 2015 in Indianapolis, Indiana. Fogle was part of a Federal Investigation which included a raid of his home in July 2015. (Photo by Joey Foley/Getty Images)

Former Subway pitchman Jared Fogle will be pleading guilty in an Indiana federal court to charges of distribution and receipt of child pornography and traveling in interstate commerce to engage in unlawful commercial sex acts with minors. The following are some questions and answers about what's going on in that case and what to expect as it proceeds.

What sentences are possible?

The count for distribution and receipt of child pornography carries a five-year mandatory minimum sentence, with the possibility of up to 20 years. The count involving travel for purposes of unlawful sexual activity with minors carries a maximum of 30 years, with no mandatory minimum.

Under certain circumstances the two sentences could be imposed to run consecutively, with one running after another. More commonly, the court will impose a single overall sentence that it considers appropriate in light of all of the facts and circumstances.

There are a number of ways to execute a plea resolution. Sometimes the parties agree that both sides will recommend the same sentence; when this happens the judge almost always adopts the joint recommendation. Other cases involve "open sentencing," in which both parties are free to argue for any sentence within the legally permissible range.

Fogle and the prosecutors have taken an intermediate, and also quite common, approach. In exchange for Fogle's guilty pleas, the prosecution is agreeing not to ask for more than 12.5 years of imprisonment, but Fogle is free to ask for any legally available sentence below that.

Some reports have noted that Fogle has agreed not to ask for less than five years of imprisonment. That's technically true, but based on Fogle's plea to the distribution/receipt charge the judge would be bound to impose at least five years in any event--a judge has no authority to impose a sentence below a statutory mandatory minimum--so that agreement isn't particularly significant.

Notably, even if the prosecutor follows through and asks for no more than 12.5 years, the judge is free to impose a higher sentence, up to the statutory maximum on each count. Defendants are constantly reminded of this fact. Fogle's plea documents recite that the judge isn't bound by the parties' recommendations, and that if the judge decides to impose a sentence greater than 12.5 years Fogle won't be allowed to withdraw his plea. Similarly, at the plea hearing, before accepting the plea the judge will tell Fogle the same thing and make sure that, knowing that, he still wants to plead guilty.

That said, judges typically listen to the parties in these cases, so in all likelihood Fogle's sentence will end up being somewhere between five and 12.5 years.

How will the sentence be determined?

Federal sentencing is a highly individualized, intricate process. There's been a constant back-and-forth over the decades, with calls for more structured, predicable sentences alternating with arguments that each individual case is unique and should be sentenced as such.

The resulting framework mixes elements of both approaches. There is a United States Sentencing Commission that has set forth a detailed set of guidelines for sentencing in federal cases. In each case, the court has to determine a number of specific facts relating to both the offense and the offender.

In Fogle's case, for example, as part of determining the sentence for the distribution/receipt charge the court will determine factors such as the number of images involved and whether a computer was used. It will also make determinations relating to Fogle himself, including whether he has any history of criminal behavior and whether he has any mental or physical conditions that should be taken into account. Sometimes the parties agree on these determinations; in other cases they dispute them and have mini-trials on these issues as part of the sentencing process.

The result will be a numerical score for Fogle's offense level, and a categorization of his criminal history. That offense level and that criminal history category will put Fogle's offense at a specific spot on a Sentencing Table, and that spot will have a sentencing range stated in terms of months.

But that's not the end of the process--not anymore. The sentencing guidelines and the corresponding range used to be binding on sentencing courts, but in 2005 the Supreme Court held that they were only advisory. So at Fogle's sentencing, although the guidelines range will be relevant, it will be only one factor for the court to consider--along with, for example, "the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, . . . to provide just punishment for the offense; . . . to afford adequate deterrence to criminal conduct; [and] to protect the public from further crimes of the defendant."

Because this is such a wide-open process, we can expect that a broad range of information will be presented to the court. The prosecution may introduce, for example, evidence relating to the harm to the victims involved--not only the victims of Fogle's own illegal sexual conduct, but also the victims of the conduct underlying the production of the child pornography he received. Fogle's attorneys will likely focus on Fogle's life history aside from the current charges, with supporting letters or testimony from people close to him.

In the end, the judge will have an immense amount of discretion in sentencing Fogle. Many judges say that criminal sentencing is the most challenging task they face, so best wishes to Fogle's judge in making this determination.