“Keep your friends close and your enemies closer.”

– Mikey Corleone (Al Pacino) taken from The Godfather (1972).

Experienced federal defense lawyers know an empty promise when they hear one. So often we hear of individuals that were promised a sentence reduction if they simply cooperated with law enforcement against another. Unfortunately, without proper legal advice and guidance, a federal defendant may lose out on the potential for a reduced sentence even if he cooperates prior to sentencing.

What is a 5K1.1 Motion?

The United States Sentencing Guidelines provide for a reduction in sentence (departure) for defendants who provide “substantial assistance” in the investigation or prosecution of another person prior to sentencing.

Only the United States Government can file a motion for downward departure under U.S.S.G. § 5K1.1. This means that, even if a defendant cooperates and his cooperation results in another conviction, the defense cannot move for a reduced sentence under this provision of the Guidelines. If cooperation is on the table, it is imperative to have a seasoned and trusted federal defense attorney to work with the government to make sure you receive credit for your assistance.

What is “Substantial Assistance?”

It’s difficult to pin down the exact definition of “substantial assistance” of the nebulous phrasing. “Assistance” means assisting law enforcement with the investigation or prosecution of another person who has committed an offense. The problem lies with the “substantial” portion. What qualifies as “substantial” is essentially left to the government’s discretion. If the government deems the assistance “unsubstantial,” then it is under no obligation to file for a 5K1.1 departure.

Does the government have to file a 5K1.1 motion?

The short answer is no. The government does not have a duty to file a 5K1.1 motion. However, a motion for reduction in sentence cannot be withheld based on unconstitutional factors such as race, sex, or nationality.

How much is a sentenced reduced by if there is a 5K1.1 motion?

If the government does file a motion under § 5K1.1, it is ultimately the district court’s decision on whether to grant the motion and the extent of a reduction. The government will recommend a specific amount of time for a reduction, and the court will consider five factors in determining the amount of reduction: (1) the significance and usefulness of the defendant’s assistance; (2) the truthfulness, completeness, and reliability of any information or testimony the defendant provides; (3) the nature and extent of the defendant’s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; and (5) the timeliness of the defendant’s assistance.

Yes, you read that correct. Cooperators often put themselves and their families in serious jeopardy, and that is one factor the court considers in deciding the “appropriate” amount of a reduction.

Can law enforcement promise you a reduction for cooperation?

NO! Law enforcement officers have zero say in whether you will even see a 5K1.1 motion if you cooperated. But so often this is a line officers use in the initial investigation of a case to try and get more information. Only the United States Attorney’s Office can file a motion under 5K1.1, and law enforcement’s promises do not create any obligation on the government’s part. Always remember, law enforcement may use deceptive interrogation tactics including making unfulfillable promises of leniency. Frazier v. Cupp, 394 U.S. 731 (1969).

Can a 5K1.1 departure take you below the mandatory minimum?

Yes and no. Standing alone, a motion under U.S.S.G. § 5K1.1 does not authorize the court to depart below the mandatory minimum set by statute. However, the Guidelines expressly authorize the court to sentence a defendant below the mandatory minimum if the government also files a motion under 18 U.S.C. § 3553(e). A defense attorney who is unfamiliar with how the statute and guidelines interplay can create a serious issue for defendants facing a statutory minimum sentence.

What is the difference between a 5K1.1 motion and a Rule 35(b) motion?

A motion made under Rule 35(b) of the Federal Rules of Criminal Procedure allows for a reduction in sentence for substantial assistance after sentencing. This can happen when the cooperation occurs after sentencing or the fruits of pre-sentencing cooperation come out after the defendant is already sentenced. Rule 35(b) has much of the same limitations as a 5K1.1 motion: only the government can file a Rule 35(b) motion, the cooperation must be “substantial,” and the ultimate decision is up to the sentencing judge.

Contact the Sentencing Lawyers at Evergreen Attorneys Today

Cooperating with federal authorities can be complicated, and you need an experienced criminal defense attorney on your side to make sure you get every benefit you deserve. If you or a loved one are seeking assistance with your federal case, reach out to us today for a free consultation. You can call us at 303-948-1489 or email us at [email protected].