Rule 35(b) Explained: Reducing Your Sentence After Cooperation.

Rule 35(b) allows a federal judge to reduce a sentence if a defendant provides “substantial assistance” after their sentencing. While both U.S.S.G. § 5K1.1 and Rule 35(b) allow for the possibility of a reduction in sentencing, there are two primary differences between the two provisions.

The first major difference is that Rule 35(b) is only available for assistance provided post-sentencing. Unlike U.S.S.G. § 5K1.1, which addresses assistance provided pre-sentencing, Rule 35(b) is reserved solely for assistance provided after an individual’s original sentencing.

The second major difference between the two is who can move for a sentence reduction. Like a U.S.S.G. § 5K1.1 departure, which also requires a government motion, a Rule 35(b) sentence reduction may be initiated only by the government. However, just because prosecutors ask for a reduced sentence does not mean the defendant will receive one. Like a U.S.S.G. § 5K1.1 motion, Rule 35(b) is subject to a judge’s discretion.

Rule 37 and Rule 35(b) also differ in that they are available to defendants in different types of cases. Rule 35(b) is only available to individuals in federal criminal cases. Similar to a U.S.S.G. § 5K1.1 motion, assistance provided by a convicted individual pursuant to Rule 35(b) can lead to a reduction in sentencing. Neither provision, however, can result in a dismissal of the charges, which requires the government to move to dismiss under Rule 48(a).

Rule 35(a) and Rule 35(b) are different in that Rule 35(a) corrects for clear errors while Rule 35(b) is for providing substantial assistance. According to the Sentencing Commission, in fiscal 2009 there were more than 2,000 cases of substantial assistance pursuant to Rule 35(b). From fiscal 2009 to 2014, almost half of all substantial assistance sentence reductions were in the Fourth and Eleventh Circuits.

What counts as substantial assistance under Rule 35(b)?

Rule 35(b) requires that the assistance provided by the defendant, in order to be eligible for a reduced sentence, provide substantial assistance to the investigation or prosecution of another person. While pleading guilty may help prosecutors in their case, pleading guilty does not in and of itself constitute substantial assistance under Rule 35(b).

Rule 35(b) itself provides no examples of what may (and may not) qualify as substantial assistance. Examples provided include:

• Testifying in court against others
• Providing records or other information to federal prosecutors
• Participating as a confidential informant or undercover agent
• Providing information to identify others who are federal offenders
• Testifying against other offenders in federal grand jury proceedings

However, as the Rule does not provide a comprehensive list, this is subject to the specific facts of each case. Additionally, as a proffer agreement is often the first step toward offering cooperation, it is equally important to understand the risks associated with such an agreement.

While Rule 35(b) allows for substantial assistance to play a role in federal sentencing, the sentencing guidelines specify five key factors (U.S.S.G. § 5K1.1) for providing assistance that qualify for a sentence reduction:

• Usefulness, how useful the assistance was in relation to the case
• Truthfulness, how truthful and complete the information given was
• Extent, how extensive the assistance given was in relation to that provided by others
• Risk, the risk of retaliation from others who may have been exposed to prosecution as a result
• Timeliness, how timely the assistance given was

Assisting federal prosecutors and cooperating as an informant are both extremely risky, and you could expose yourself and your family members to retaliation. Rule 35(b) does not provide a universal checklist of the activities that will qualify as substantial assistance, so assistance will be determined based on the information provided to federal prosecutors.

Another potential risk involved in signing a proffer agreement is providing false information. While a proffer agreement restricts the use of any statements made by the defendant to prosecutors for the purposes of prosecuting the defendant, it does not provide complete immunity from prosecution. If false statements are made, however, federal prosecutors may utilize these statements as evidence of obstruction of justice and/or for a second federal prosecution.

How long does the government have to file?

Under Rule 35(b)(1), prosecutors may seek a sentence reduction when they file a motion with the court “within one year after sentencing.” However, Rule 35(b) provides three main exceptions.

Rule 35(b)(2)(A) states that if the defendant’s substantial assistance involved information not known to the defendant until one year or more after sentencing, prosecutors may still seek a reduced sentence even after the one-year deadline. For example, “if a defendant did not learn the information until a year or more after sentencing, so that it could not be reported in time for a U.S.S.G. § 5K1.1 motion, the prosecutors may move under Rule 35(b).”

Under Rule 35(b)(2)(B), prosecutors can seek a reduced sentence even after the one-year deadline if information that was reported during the one-year window became useful to prosecutors only after the deadline passed. For example, the government may have come to know of a defendant’s drug transaction, but may not have come to know of the connection to a drug trafficking ring until after the sentence of the first case concluded.

Rule 35(b)(2)(C) provides that if prosecutors come to know information that was unforeseeably useful only after one year has passed, but the defendant brought it to prosecutors’ attention as soon as he or she believed it was useful, the prosecutors may move for a reduced sentence. For example, “ if a defendant provided prosecutors with a lead for a drug trafficking ring, and months later, prosecutors came to know the lead was correct, but the defendant had already been serving his sentence for over a year, the government could ask for a sentence reduction under Rule 35(b).”

Under Rule 35(b)(3), when evaluating assistance provided by a defendant after sentencing, courts can consider whether a defendant tried to provide assistance before sentencing. While Rule 35(b)(2) doesn’t expressly make “prosecutorial attentiveness” a criterion, judges and prosecutors will still apply standard rules of criminal procedure. If federal prosecutors did not act on a defendant’s report promptly, this may (and should) lead to a sentence reduction under Rule 35(b) even if the one-year deadline has passed. This applies regardless of whether prosecutors acted on a defendant’s information in good faith.

How can you persuade the judge to reduce more?

Like a U.S.S.G. § 5K1.1 motion, Rule 35(b) is largely under the federal prosecutor’s authority. That’s why, when you need to persuade the judge to further reduce your sentence, it’s important to make sure the judge fully understands all the circumstances involved. When prosecutors file a motion seeking a sentence reduction, the size of the reduction is typically up to the sentencing judge. Again, even when prosecutors make a recommendation, the sentencing judge is not bound by that.

Rule 35(b) doesn’t have a set formula for determining the size of a sentence reduction. However, Rule 35(b)(1) and Rule 35(b)(2) provide the specific circumstances under which a sentence can be reduced. As the rule explicitly notes, a sentence can be reduced below the mandatory minimum sentence. So, even if you are facing mandatory sentencing, there is still hope.

To determine the degree of cooperation and the appropriateness of a sentence reduction, judges will consider all the factors specified in Section 5K1.1 commentary, and, if prosecutors recommend a sentence reduction, you may also have the chance to speak with the judge. While most of the time the government’s recommendation will be sufficient, sometimes defendants in Rule 35(b) cases will need to persuade the judge to further reduce the sentence in light of circumstances beyond just cooperation. However, this will be a challenging argument, as federal courts are divided on this.

As we discussed with U.S.S.G. § 5K1.1, different federal circuits have different views on how much importance to give to factors outside the specific assistance provided. In the case of U.S. v. Tadio, the Ninth Circuit held that once a defendant has provided substantial assistance, a district court may consider the non-assistance factors listed in 18 U.S.C. § 3553(a) in determining the extent of a Rule 35(b) reduction. The federal circuit noted that Rule 35(b)(4) states only that “[w]hen acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.” In contrast, in U.S. v. Clawson, the Fourth Circuit held that, “The relevant factors for a Rule 35(b) sentence reduction are restricted to the assistance provided by the defendant.” The case in Clawson presented a situation where the defendant had cooperated in another prosecution and the government filed a Rule 35(b) motion seeking a reduction of roughly 20 percent. The district court instead reduced his 96-month sentence to one day, out of concern that the Bureau of Prisons would not provide the medication he took for attention deficit hyperactivity disorder. The Fourth Circuit vacated the reduction and remanded to a different judge, holding that a Rule 35(b) reduction may not rest on any factor other than the defendant’s substantial assistance.

When the assistance provided is not easily quantifiable or is of substantial importance, federal judges will need to decide how to determine the correct sentence reduction. Section 5K1.1 commentary states that in such a case, “Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.”

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

What can you do if prosecutors refuse to file?

In federal criminal court, prosecutors have broad discretion over whether to file a motion to seek a sentence reduction. According to the Supreme Court, prosecutors’ discretion to file is broad, and judicial review is available only where the refusal rested on an unconstitutional motive, such as the defendant’s race or religion, or was “not rationally related to any legitimate Government end” (Wade v. United States). With the exception of discriminatory and retaliatory refusals to file, prosecutors’ decisions to file are generally beyond review.

Can you ask a judge to review a prosecutor’s decision not to file?

Although prosecutors’ decisions to file are generally beyond review, there are a few cases where federal judges may allow discovery regarding a prosecutor’s decision not to file. These cases include:

• Discriminatory and Retaliatory Decisions, If a prosecutor’s decision not to file a motion for a sentence reduction was motivated by unconstitutional discrimination or by the prospect of retaliation, a federal judge may allow discovery. This is a clear deviation from the “prosecutors’ broad discretion,” so, it stands to reason that defendants may be able to raise successful challenges to these denials.
• Failure to Fulfill Contractual Promises, While Rule 35(b) is solely at the government’s discretion, if a defendant is promised a motion for a reduced sentence, they may be able to sue for damages if the promise is breached. However, as we discussed previously, federal agencies are not subject to the statute of frauds. To sue for damages, you need to establish that the agreement that you relied upon was enforceable under the law.

How do I know if a prosecutor’s promise to file for a sentence reduction is enforceable?

An enforceable promise to seek a sentence reduction under Rule 35(b) is likely one where there is no question as to the government’s discretion. For example, in cases in which defendants signed a cooperation agreement and then, after satisfying the requirements of the agreement, federal prosecutors did not file a motion to a reduced sentence. In this scenario, some courts have granted specific performance, and required the government to file a motion for a sentence reduction. However, most cooperation agreements carefully specify that prosecutors retain discretion to determine whether the defendant’s assistance qualifies as substantial.

In order to make an effective argument, you will need to look closely at the language in your cooperation agreement. Did prosecutors promise to file a motion for a reduced sentence? Or did prosecutors promise to evaluate your assistance, and, if necessary, make a motion with the court?

What is the standard for refusing to file?

Along with discrimination and retaliation, a prosecutor’s decision to refuse to file a motion for a reduced sentence can be unconstitutional if their refusal was “unrelated to any legitimate law enforcement objective and arbitrary or irrational. (United States v. Brown).” However, making this argument will require considerable effort. To meet this standard, you will need to prove that your prosecutors failed to execute their duty in good faith and that they failed to follow all established protocols before refusing to file.

What happens after prosecutors file a Rule 35(b) motion?

After prosecutors file for a sentence reduction, several questions may arise regarding the Rule 35(b) process and its impact on a defendant’s sentence.

While federal prosecutors will often redact a defendant’s cooperation details, the filing may enter the court’s public record, and others may request a review of the proceedings. However, federal courts may seal sensitive material to ensure the defendant’s privacy and safety.

Does Rule 35(b) require a hearing?

Rule 35(b) does not require a hearing, and court rules allow judges to make sentencing decisions absent the defendant. As federal courts’ Rule 35 procedure rules state, proceedings to establish the size of a sentence reduction under Rule 35(b) “may be held without the defendant’s presence (Rule 43(b)(4)).” However, defendants can request hearings if they believe it is necessary to present evidence to the judge.

Can you appeal your Rule 35(b) sentence reduction?

generally, defendants may appeal if they filed a Rule 35(b) motion after sentencing, provided the court refused their request and the appeal was not based solely on the size of the reduction. However, for an appeal to stand, it must meet one of the federal appellate standards under 18 U.S.C. § 3742. While appeals solely challenging the size of the sentence reduction are barred (18 U.S.C. § 3742(a)), legal errors made by the sentencing court may grant appellate jurisdiction under 18 U.S.C. § 3742(a)(1).

What does it mean to serve the balance of your sentence?

A sentence reduction under Rule 35(b) only applies to the period of time the defendant is required to serve in federal prison. The Bureau of Prisons will recalculate a defendant’s projected release date after receiving an order reducing the imprisonment required. However, unless the judgment expressly grants the request, the reduction will not apply to a defendant’s supervised release. In United States v. Johnson, the court held that, “excess time that a defendant has been required to serve behind bars shall not automatically shorten the amount of time he is required to spend on supervised release.” The decision in Johnson left open the possibility of a sentence reduction by a court based on specific and individual circumstances, though.

How do Rule 35(b) and Rule 37 differ?

Rule 37 addresses assistance provided pre-sentencing, and Rule 35(b) addresses assistance provided post-sentencing. In Rule 37 cases, a prosecutor’s motion allows for a reduced sentence, but the case can also result in the charges being dismissed. On the other hand, Rule 35(b) is a reduced sentencing remedy. A defendant cannot use substantial assistance provided after sentencing to obtain a dismissal. Another key difference is who moves for a sentence reduction. Unlike Rule 37 motions, a Rule 35(b) motion is only available to prosecutors. If a defendant is ineligible for a Rule 35(b) motion, they are ineligible for a reduced sentence.

What else can reduce a federal sentence?

While Rule 35(b) is just one of the tools available to federal defendants, other options also exist, including:

• Section 3553(a) Variances, While Section 3553(a) variances are generally reserved for defendants who received sentences based on the guidelines, these variances do not require a government motion. However, the statutory minimum sentence for federal criminal offenses still constrains what a judge can do.
• Section 3582(c)(1)(A) Compassionate Release, Under Section 3582(c)(1)(A), prisoners may file motions requesting compassionate release. This requires demonstrating “extraordinary and compelling reasons that warrant the reduction of the term of imprisonment,” or showing that you exhausted your appellate rights for a compassionate release. At minimum, motions for compassionate release must be filed after the warden’s office received your request, and 30 days have since passed without a response.
• Section 3582(c)(2) Retroactive Guidelines Reductions, Under Section 3582(c)(2), federal judges may reduce a sentence if the sentencing commission has adopted a lower guideline range that applies retroactively to defendants.
• First Step Act § 404 Reductions, Section 404 of the First Step Act, as signed into law in 2018, allows some defendants convicted of certain crack offenses (with offenses committed prior to August 3, 2010) to motion for a reduced sentence.
• U.S.C. § 2255, Although U.S.C. § 2255 is focused on unlawful sentencing, it is still a federal remedy available to those who have been illegally sentenced.
• U.S.S.G. § 5K1.1, Section 5K1.1 of the Sentencing Guidelines addresses substantial assistance before sentencing. Like Section 5K1.1, Rule 35(b) requires a government motion. However, while Section 5K1.1 generally addresses assistance that the defendant provided prior to sentencing, Rule 35(b) addresses post-sentencing assistance. However, alone, Section 5K1.1 cannot overcome a mandatory minimum sentencing guidelines requirement, in which case a request for a reduction under 18 U.S.C. § 3553(e) will be needed instead.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.