How Long Until I'm Sentenced After Cooperating??

Federal law doesn’t provide a countdown to sentencing after a defendant cooperates. While the advisory notes to Federal Rule of Criminal Procedure 32 say, “At sentencing, the court may grant a postponement of sentencing to allow the prosecution to complete a presentence investigation, or to allow cooperation in connection with prosecution of other persons to continue,” they don’t explain what “cooperation” might justify a delay. They do, however, explain that, when appropriate, such a postponement may be necessary as an “adequate justification” for such a delay.

Cooperative defendants often have information about complex investigations involving multiple people, and they are often able to offer substantial assistance to the government as a result of their knowledge of a company’s internal workings. These investigations can take years to unfold, and sentencing a cooperating defendant before the government has the opportunity to pursue additional charges or secure convictions against others may lead to an improperly lenient sentence.

For example, in the Celsius Network criminal case, a former chief revenue officer who provided “substantial assistance” to federal prosecutors before being sentenced was ultimately sentenced to time served and a fine. Similarly, in the unrelated prosecution arising from the Special Counsel’s Russia investigation, Rick Gates, who received credit for cooperation, was sentenced to 36 months’ probation and 45 days of jail time.

However, cases such as these are merely examples of how cooperation can be handled during sentencing. While these anecdotal cases demonstrate the positive outcomes cooperation can yield, individual outcomes in cooperation cases can vary widely. Neither these examples nor any other individual cases can establish representative trends about cooperation-related sentencing delays or the rates at which federal prosecutors and federal courts reduce sentences.

What decides whether cooperation delays sentencing or continues afterward?

Three federal sentencing provisions address substantial assistance provided through cooperation. Two apply before sentencing: U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). The third, Fed. R. Crim. P. 35(b), applies after sentencing.

Substantial Assistance Pre-Sentencing

For cooperation before sentencing, two separate federal sentencing provisions (U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e)) can potentially reduce a defendant’s sentence. As outlined, both provisions require a motion from the government in order to unlock the opportunity for a reduced sentence. The government can also file such a motion in certain post-sentencing scenarios.

Sentences Reduced Under U.S.S.G. § 5K1.1

Under U.S.S.G. § 5K1.1, “a court may depart from the applicable guideline sentencing range” if “the defendant has provided substantial assistance in the investigation or prosecution of another person’s offense.” A § 5K1.1 departure by itself cannot take a sentence below a statutory mandatory minimum, which is why the guidelines note “a court may depart… in cases where a reduction is otherwise permitted.” When mandatory minimums are triggered, defendants need to seek a sentence below their mandatory minimum under 18 U.S.C. § 3553(e).

Sentences Reduced Under 18 U.S.C. § 3553(e)

Under 18 U.S.C. § 3553(e)(1)(B), federal courts have the authority to impose a sentence “below the statutory minimum” or “below the mandatory minimum” if the defendant has provided substantial assistance in connection with the investigation or prosecution of another person’s offense or offenses. Like § 5K1.1 and Rule 35(b), government prosecutors generally are required to file a motion to unlock the court’s authority to sentence a defendant below their mandatory minimum under 18 U.S.C. § 3553(e) in the unusual scenario where their sentencing remains postponed pending further cooperation. If the government has not filed such a motion, then the court cannot accept a sentence below the mandatory minimum.

When is Cooperation Before or After Sentencing?

The question of whether a defendant is providing substantial assistance to the government either before or after sentencing is determined based on “the circumstances of the case.” In most cooperation cases, however, federal prosecutors will work with the defendant to decide what information they need the defendant to provide and how and when that assistance is most useful to the government.

When the Court Decides on Sentencing Credits

Rule 35(b): Credit for Substantial Assistance Post-Sentencing

Rule 35(b) states that “upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person,” “in general, the motion [to file] must be filed not later than one year after the sentencing.” As noted, government prosecutors must file a motion under Rule 35(b) (and the court will not, on its own, grant a sentence reduction). The ordinary filing period for a Rule 35(b) motion ends one year after oral sentencing, but federal prosecutors can file such a motion beyond this period only in the narrow circumstances listed in Rule 35(b)(2), where the assistance involved information the defendant did not know, or whose usefulness was not reasonably apparent, until more than a year after sentencing. A Rule 35(b) motion must rest on substantial assistance the defendant provided after sentencing, although in evaluating that assistance “the court may consider the defendant’s presentence assistance.”

Can a Court Impose a Sentence Below a Statutory Minimum After a § 5K1.1 Motion?

No, a § 5K1.1 motion from the government does not authorize the court to impose a sentence below the statutory minimum imposed in accordance with 18 U.S.C. § 3553(e). The sentencing provision in 18 U.S.C. § 3553(e) grants “the court” the authority, “[u]pon motion of the Government,” to “impose a sentence below a level established by statute as a minimum sentence.” The government must file a motion under 18 U.S.C. § 3553(e) for defendants to be eligible for a sentence below the mandatory minimum.

What happens once the judge sets my sentencing date?

If a federal judge has decided that your cooperation presents sufficient justification for a delay in sentencing, your next step (excluding further cooperation) will be that of any other defendant facing criminal sentencing. The general sentencing process is as follows:

The Preparation of Your Presentence Report

A probation officer will prepare your presentence report. The probation officer will typically calculate your sentencing offense level and criminal-history category. Based on these two elements, the probation officer will calculate your recommended Guidelines sentencing range. The U.S. Sentencing Commission’s “Guidelines Range” is merely a suggestion, and judges are not bound to impose a sentence within it.

In U.S. v. Booker, the U.S. Supreme Court held that mandatory application of the Federal Sentencing Guidelines violated the Sixth Amendment, and it remedied that defect by severing the statutory provisions that made the Guidelines binding, rendering them effectively advisory. With this in mind, while determining an appropriate sentence, the judge must consider all factors within 18 U.S.C. § 3553(a), and he or she can either “impose a sentence that falls within the recommended guideline range . .. or a sentence that falls outside of the recommended guideline range.”

The Disclosure of Your Presentence Report

Rule 32(e)(2) requires the probation officer to give your presentence report to you, your attorney, and an attorney for the government “at least 35 days before sentencing unless the defendant waives this minimum period.” Both the prosecution and the defense can waive this period. If the government does not file an objection to the presentence report, the judge can impose the recommended Guidelines sentence. The defendant can file a sentencing memorandum in anticipation of sentencing.

Objections to the Presentence Report

The Rule 32(f)(1) requires a written objection to be filed by either party within “ 14 days after the presentence report is made available to the defendant and the government.” Filing an objection is not mandatory, but it is strongly recommended that both the prosecution and the defense file objections to the presentence report.

The Presentation of the Final Report

Rule 32(g) states that “at least 7 days before sentencing, the probation officer must submit to the court and to the parties the presentence report and an addendum containing any unresolved objections, the grounds for those objections, and the probation officer’s comments on them.” The purpose of this rule is to give the defendant, the prosecution, and the court “the opportunity to consider the final report and any pertinent addendum or correction of the report before the sentencing hearing.”

Other Presentence Deadline

Several other pre-sentencing deadlines exist under Rule 32 as well. As seen above, the Rule 32 deadlines are scheduled backward from the sentencing date (i.e., “no later than 35 days before the sentencing date,” “at least 7 days before sentencing”). Thus, Rule 32 (and its requirements) do not provide a date or time from which a sentence can be determined or imposed. Instead, Rule 32 governs the timing of events before sentencing, starting from the date the judge sets for your sentencing.

Summary of the Presentence Process

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

Can the federal docket show when I will be sentenced?

One of the most-discussed topics on the internet is the timeline for federal criminal sentencing. Some news articles quote a reports of a 316-day median duration from case filing to disposition. However, this number is not useful for defendants awaiting sentencing, as the 316-day figure is not measured on a conviction-to-sentencing basis. Instead, the number tracks the duration from filing of the criminal case until “the case was dispositioned in U.S. District Court,” meaning that this number includes everything, including pre-trial procedures, pleas, guilty plea agreements, and guilty plea hearings. Thus, when trying to gauge the length of time for a sentencing date from the time of filing, a criminal defendant should look at their own case’s specific details.

Can I Use PACER to Determine When I Will Be Sentenced?

Yes, a public docket can show scheduling notices, motions for continuance (and continuances granted by the court), scheduling orders, and various minute entries. With these, it is possible to try to derive some information about sentencing timelines. However,sealed filings are not accessible on PACER without court-authorized access. While a public docket can identify a sealed filing, it will not reveal its contents to a member of the general public (or any other member of the general public for that matter).

What is the Probability of Avoiding Federal Sentencing?

In FY 2023, the national rate for guilty pleas was allegedly 97.2%. More specifically, the guilty plea rate in the Texas federal justice system is allegedly 99.1%. While this number gives us some insight into the plea-guilty tendencies of defendants who face the prospect of a federal trial, it does not establish a defendant’s chance of winning at trial. When pleading guilty, a defendant is admitting he or she committed a crime. At trial, the prosecution carries the burden of proving the defendant is guilty beyond a reasonable doubt. When guilty plea rates have been as high as 97.2% (national) and 99.1% (Texas), this means trial outcomes were relatively scarce. However, in a DOJ report from 2023, prosecutors stated that the federal government’s trial success rate was “over 90%.”

What can I do if sentencing keeps getting delayed?

If you have received a notice for a sentencing hearing and it just got postponed, you may feel like the time is in the government’s hands and you are just along for the ride. While federal prosecutors often play the role of the ones in control, the court is not without its duty to move your case forward.

Does the Constitution Protect Me Against Scheduling Delays?

As noted, the U.S. Supreme Court held in Betterman v. Montana that “the Sixth Amendment’s Speedy Trial Clause does not apply to the interval between a conviction and sentencing.” Despite this, the Betterman court still notes that “a conviction-to-sentencing delay that is so unusually long it implicates due-process concerns.” Concurring in Betterman, Justice Sotomayor suggested that a due process challenge to sentencing delay could be guided by the factors from Barker v. Wingo: the length of the delay, the reason for the delay, the defendant’s assertion of his right, and the prejudice to the defendant. At the same time, Betterman makes clear that a defendant complaining of inordinate sentencing delay must look to the Due Process Clauses of the Fifth and Fourteenth Amendments rather than to the Sixth Amendment.

The case of Betterman v. Montana also addresses whether a defendant needs to seek a prompt sentence for any sentencing delay to be problematic under the Constitution’s Due Process Clause. The Court in Betterman left the contours of any such claim undecided, noting only that “[t]he federal rule on point directs the court to ‘impose sentence without unnecessary delay,’” Fed. R. Crim. P. 32(b)(1), and that a defendant may have “tailored relief under the Due Process Clauses” in appropriate circumstances. While Betterman does not explicitly establish a due process test for sentencing delay claims, the decision acknowledges that due process protects against exorbitant post-conviction sentencing delays when the delay has no apparent justification.

The Rule 32(b)(1) “prompt sentencing” provision provides protection in most, if not all, sentencing delay cases. While some of the factors in Betterman may overlap with the requirements under Rule 32(b)(1), the Sixth Amendment-related concerns discussed in Betterman are not relevant for defendants seeking protection against post-conviction sentencing delay under Rule 32(b)(1). However, as seen above, if a defendant does not seek a prompt sentence, then he or she may be precluded from seeking a sentence reduction in subsequent proceedings.

What Can I Do if the Prosecution Refuses to File for My Sentence Reduction?

The U.S. Supreme Court held in Wade v. United States that “courts are generally required to grant undue deference to the decisions of prosecutors,” particularly “with regard to their judgments about which individuals are useful witnesses and what circumstances are the most conducive to extracting useful information.” This statement makes it very difficult to hold federal prosecutors accountable for breaking cooperation-related promises. However, the same opinion goes on to say that this is true “when the prosecution decides not to pursue a case or pursue it with less vigor.”

An explicit and clear promise (e.g., in a cooperation agreement) for a sentence reduction upon providing substantial assistance may be enforceable. If prosecutors breach an express promise of this type, a defendant is entitled to relief.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.