There are two rules under which a sentence is commonly reduced for “substantial assistance” — Section 5K1.1 of the U.S. Sentencing Guidelines and Rule 35 of the Federal Rules of Criminal Procedure — both of which are motions that fall under 18 U.S.C. § 3553(e). These rules can be used to reduce a mandatory minimum sentence.

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What is Substantial Assistance?

It is short for “substantial assistance in the investigation or prosecution of another person.” This is the goal of the defendant or inmate who cooperates with the government against co-defendants, co-conspirators, or unrelated targets of investigation or prosecution.

Section 5K1.1

Under Section 5K1.1, a defendant in a federal criminal case may cooperate with the Government before his or her sentence is imposed. It ordinarily happens in the context of a plea agreement that says that the defendant agrees to cooperate and the Government agrees to consider the defendant for a “5K1.1 Motion.” If made by the Government and granted by the Judge, this usually results in a two-level reduction in the sentence (roughly equivalent to a 15% reduction in the length of the sentence).

Rule 35

Sometimes, because the Government feels the need to make sure that the cooperation continues after sentencing, the motion for a sentence reduction is made after sentencing. Normally, the cooperation continues after a defendant is sentenced, and when this happens, the Government files a motion under Rule 35, and a similar reduction in the sentence occurs.

Why is this Important?

The result, in either a 5K1.1 or a Rule 35 reduction, is usually a two-level reduction in the sentence. But there is another benefit:

Under 18 U.S.C. § 3553(e), if a sentence is reduced in accordance with either 5K1.1 or Rule 35, then the Judge is free to disregard any applicable mandatory minimum. That is, if the guideline sentence (either before or after the reduction is applied) is below the mandatory minimum, then the Judge is free to sentence at the guideline range. In contrast, without the substantial assistance reduction, the sentence would have to be at the mandatory minimum.

For example, suppose someone is charged under 21 U.S.C. § 841(b)(1)(a) and is held responsible for a certain amount of a controlled substance. Suppose that when all the adjustments to the offense level under the guidelines are accounted for, the sentencing range is 87 to 108 months incarceration. In the case of a person who did not qualify for a sentence reduction under either of the rules discussed above (and who did not qualify for the “Safety Valve” provision), the Judge would have no choice but to sentence this person to 120 months, the mandatory minimum. However, if this person did qualify for a 5K1.1 sentence reduction for his or her cooperation, then not only would the guideline range be lowered to 70 to 87 months rather than 87 to 108 months, but also the Judge would not be bound by the statutory mandatory minimum and could sentence the person to 70 months (just under 6 years) instead of 120 months (10 years). This is a huge difference.

Similarly, suppose an individual is in the same circumstances but did not receive the 5K1.1 reduction at sentencing and received the 120 month sentence instead. If the Government filed a motion under Rule 35, then the Judge could, after sentencing, lower the sentence from 120 months all the way down to the new guideline range, and reduce the sentence to 70 months.

But there’s more!

Suppose that, but for a mandatory minimum sentence, someone would otherwise be eligible for a reduction under a retroactively applied guideline amendment like the “crack amendment” or “drug minus two” amendment discussed elsewhere on my website. If a person were to receive a reduction in one’s sentence under Rule 35, not only would the Judge be able to sentence below the mandatory minimum, and not only would the person’s guideline range be dropped an additional two levels, but this person would also become eligible to have the sentence further reduced under the guideline amendment. So, for the example above, the person could actually be eligible for a sentence reduced two more levels to 57 months! Compared to the original 120 months, that is equivalent to a 7 level reduction in the sentence!

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How Can an Attorney Help?

Most of the time, the prosecutor for the Government will do what they promised to do, i.e., consider the defendant for a reduction in sentence in exchange for the defendant’s cooperation. The prosecutor will file the motion, and the Judge will grant it. If this happens, all is well!

However, I am discovering more often that, for whatever reason, the prosecutor does not make good on their promise and never files the Rule 35 motion after sentencing. This can block the way for a sentence reduction of up to seven levels. In my experience, I find that in some cases, the prosecutor just hasn’t gotten around to it or has forgotten. In other cases, the prosecutor has decided, even after all the cooperation was given, the assistance was not “substantial” enough, and just says they’re not going to file the motion to reduce the sentence. Other times, the prosecutor has made a decision not to file the motion because they don’t have all the facts they need. Usually that happens because the case agents involved with the cooperation of the defendant have not fully briefed the prosecutor on the extent of the cooperation.

If a defendant believes that he (or she) has cooperated with the government and has “earned” his reduction, but has not received it, something needs to be done. An attorney who has experience with Rule 35 matters needs to gather the information that should be presented to the prosecutor and either (1) “prod” the prosecutor to do what he said he would do or (2) try to help the prosecutor to understand that the assistance that was provided actually was “substantial” and is worthy of the reduction that was earned. This takes tenacity and time.

Note that no attorney can guarantee that the prosecutor will relent and file the Rule 35 motion. Beware of any attorney who makes such promises. Ultimately, it is in the discretion of the prosecutor to decide whether the cooperation provided was “substantial” and worthy of a reduction motion. Consequently, there can be no guarantee. However, if a defendant believes he or she should be getting the reduction, it should be pursued, and every effort should be made to try to secure it.

Third-Party Cooperation

It is also possible, in certain circumstances, for the cooperation of one person to be credited to another for Rule 35 purposes. How this often works is:

  1. A federal inmate has a friend or relative who is willing to cooperate with the Government in exchange for a reduction in the inmate’s sentence.

  2. The Government agrees to file a motion to reduce the sentence of the federal inmate in exchange for the cooperation of a friend or relative.

Basically, the friend or relative of an inmate agrees to assist in the investigation and prosecution of criminal activity that they know about in exchange for consideration of a sentence reduction for the inmate.

An attorney with experience in these matters should always be involved in this process because:

  1. The third-party cooperator must be assured that he (or she) will not be prosecuted because of his involvement in the activity he is providing information on. An attorney is the only one who can make sure that the cooperator is protected.

  2. An attorney is also necessary to make sure that the proper groundwork is laid for the process to work properly and to make sure that the Government is willing to give the consideration.

I cannot emphasize strongly enough that the cooperator work closely with an experienced attorney to make sure that his or her cooperation does not result in his or her own prosecution! I am available to help with all of this.

What Does An Attorney Need to Begin?

To get started, the attorney needs to know information such as what cooperation has been provided: Who talked to whom? What case agents were involved? What information was shared? What testimony was offered or given? What resulted from the cooperation? What promises or statements were made by the prosecutor and/or case agents about what the defendant would get for his or her cooperation?

What if I Don’t Have My Own Cooperator?

It may be possible that a paid informant may be available. I have developed a network of cooperators over the last several years. This is a particularly expensive option, but I can share more details with anyone who wants to know more about it.

Special Caution

In certain situations, the issue of cooperation with the Government is very sensitive. There is always the possibility of retaliation against a cooperator or his or her family. Thus, many cooperators do not wish for their cooperation to be made known to anyone, if possible. Consequently, a defendant or inmate who is cooperating or has cooperated may not wish to discuss it or receive correspondence about it because of the possibility that it may be found out and put someone at risk of harm.

If you know someone for whom this information may be helpful, sometimes the best way to address it is by mentioning it on the telephone to them or as privately as possible during a visit. Then, if the defendant wishes to pursue it, he (or she) can indicate how discreet he wishes to be regarding the matter. After that, if the inmate wishes to pursue the matter, he can sometimes make a legal phone call to an attorney in the privacy of the counselor or case manager’s office.

How Much Does This Cost?

I bill at a rate of $325.00 per hour with a 10 hour minimum, thus $3,250.00 minimum. I have found that in most cases of this sort, everything that needs to be done is often done in around 10 to 20 hours of my time. Only rarely is it much less or much more.

If you would like to discuss a case with me, please call or email me. Just click on the “Contact Us” link here or at the top of the page, and I would be glad to talk to you about your matter. You may also email me directly at chad@drugandgunlawyer.com, or you can just call me at (512) 693-9LAW.

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