Average Sentence Reductions Under Rule 35(b).

Rule 35(b) does not have a formula for sentence reduction. Unlike some other aspects of the federal sentencing regime, Rule 35(b) doesn’t specify a percentage or use a reduction chart.

Research by the U.S. Sentencing Commission indicates that reductions under Rule 35(b) are typically smaller than similar reductions made under U.S.S.G. § 5K1.1. The Commission’s research also shows that federal judges rarely grant the full sentence reduction that federal prosecutors seek.

Two major factors contribute to this reality:

• Gatekeeping. Prosecutors have absolute discretion under Rule 35(b). They have to file their motions to request sentence reductions for defendants’ substantial assistance. There is no requirement for prosecutors to seek reductions.
• Judicial Discretion. Prosecutors’ filed Rule 35(b) motions request reductions, but the federal judges are free to decide whether and to what extent reductions are deserved.

A key distinction also needs to be made. Rule 35(b) is entirely separate from the Bureau of Prisons’ Residential Drug Abuse Program (RDAP). The Bureau of Prisons has the authority to determine eligibility and placement within RDAP, separate from the court’s role in sentencing and the prosecutorial role under Rule 35(b).

The federal government can also reduce sentences through various other mechanisms, and these are not Rule 35(b) motions. These include:

• Appeals.
• Section 2255 motions.
• Compassionate release motions.
• Certain motions for relief under the Antiterrorism and Effective Death Penalty Act (AEDPA).

All of these differ from Rule 35(b) motions and RDAP. They all serve different purposes, apply to different types of defendants, and are subject to different conditions for approval.

Is there a reliable national average for Rule 35(b) sentence reductions?

To provide a reliable national average estimate of sentence reductions granted under Rule 35(b), one must identify and explain the methodology by which the estimate was produced. Specifically, to be reproducible, a national estimate should:

• Identify the dataset it relied on.
• Specify the years it covered.
• State the sample size of defendants included.
• Disclose how it arrived at its outcome.

The reported figures need to reflect a recognized statistical measure such as a mean, median, range, or distribution.

1. Why a “Sentence Reduction” Can be Reported as Multiple Different Percentages

The “sentence reduction” for a federal defendant under Rule 35(b) is not a single fixed value but the result of a calculation.

Under Rule 35(b), a sentence reduction of 24 months can be reported as either an original-sentence reduction or a remaining-time reduction.

The reduction being measured is the same, but the denominators are different, so the two methods yield different percentages.

With an original-sentence reduction, the 24-month reduction is divided by the defendant’s original sentence length. With a remaining-time reduction, the 24-month reduction is divided by the amount of time remaining on the defendant’s sentence.

2. Why a National Average of Rule 35(b) Outcomes is Likely Not Reproducible

Many reports of Rule 35(b) sentence reductions provide no mention of the data or the period they cover. If they mention a dataset, it is often a small or biased sample from one federal circuit or one federal courtroom. If an estimate is identified by a particular study or court case, it doesn’t say if it represents a mean, median, mode, range, or other measure. Instead of calling it an “average,” the reports use this more ambiguous term to hide the fact that they didn’t identify the dataset, sample size, and calculation method.

3. Why Reporting National Averages of Rule 35(b) Sentence Reductions and Rule 35(b) Motions is Inaccurate

Even if we have a reproducible report on the average Rule 35(b) outcome, it still cannot accurately report on Rule 35(b) sentence reductions as a whole.

The issue here is that any reported national average for Rule 35(b) reductions can only account for cases in which federal prosecutors filed a Rule 35(b) motion and federal judges granted some form of reduction. This means that any data about what happened to those cooperators who provided “substantial assistance,” but did not receive a Rule 35(b) motion from federal prosecutors or didn’t receive a sentence reduction from a federal judge, are completely omitted from the calculation.

As a result, reporting national averages does not make sense even when you calculate the reduction for cooperators who received reductions in federal cases. Even then, an average reduction doesn’t tell you the likelihood of getting a sentence reduction under Rule 35(b) at all.

4. Why “Undated” Statistics Should Be Viewed with Skepticism

The Rule 35(b) and § 5K1.1 statistics do not have a date. How can we know when they pertain to if there is no date? Moreover, how can we be sure they are still accurate and up-to-date?

5. Why the “99.6% of Federal Criminal Cases End in Convictions” Figure Should Be Viewed with Skepticism

This claim does not indicate its reporting period, nor does it identify the denominator it is using. For instance, does the figure include cases that end in dismissal by the federal court? If it only counts guilty pleas and guilty verdicts, what about cases with no guilty pleas and no verdicts?

Why do Rule 35(b) reductions vary so much between cases?

An Eastern District of Virginia practitioner, who specializes in Rule 35(b) and § 5K1.1 motions, states that testifying against others in a federal investigation can lead to reductions “as much as 50% of the time.”

But the practitioner’s figure of 50% is not a national average or based on a representative sample of federal cases. Instead, it is an anecdotal figure. While it is potentially useful, it is best seen as a Rule 35(b) outcome based on his own experience in federal court cases in Virginia.

1. Why Comparing Individual Reductions Can Be Misleading

Comparing individual Rule 35(b) outcomes can be misleading as well.

Consider these two cases. In one case, the defendant provided cooperation that assisted federal authorities in a substantial way. The result was a sentence reduction of 5 years. In the second case, the defendant provided cooperation that assisted federal authorities in a minimal way. The result was a sentence reduction of 2 years.

If you compare the actual reduction, the first case saw a larger reduction. However, in the second case, the reduction was proportionately larger.

2. Why the Court’s Consideration of Rule 35(b) Reductions in § 5K1.1 Cases Can Be Misleading

In federal cases where federal prosecutors received prior consent to file § 5K1.1 motions on behalf of cooperating defendants, the court first applied a § 5K1.1 departure, which reduced the defendant’s sentence. At the later Rule 35(b) motion stage, the court applied a Rule 35(b) reduction based on the sentence that was already reduced.

This makes comparisons more complex because the courts apply Rule 35(b) based on the already reduced sentence.

3. Why the Defendant’s District, Offense, and Type of Cooperation Can Make Comparison Difficult

The defendant’s district can also have material effects. For example, the Eastern District of Virginia is often characterized as a law-and-order district. Therefore, federal prosecutors and judges are potentially more inclined to hand down reductions for cooperating defendants. However, this could vary depending on the circumstances of the case at hand.

The defendant’s offense can have the same effect. The reduction granted for cooperating in a white-collar offense case may differ from the reduction granted for cooperating in a drug offense case.

The type of cooperation that the defendant provides can make comparison difficult as well. Cooperating defendants can provide substantial assistance through:

• Information,
• Testimony,
• Identifications, or
• Operational assistance.

4. Why the Rule 35(b) Reduction Granted to a Defendant Must be Based on Factors Determined by Federal Prosecutors

A Rule 35(b) reduction must be based on the type of assistance provided by the cooperating defendant. Federal prosecutors assess this assistance, which includes:

• The usefulness of the information or operational assistance provided,
• The reliability of the information, the evidence uncovered, or the impact of the assistance.

The assistance the defendant provides can also be considered as substantial if it leads to:

• Uncovering of key documents or evidence,
• Providing new, important, or verified information about the offense,
• The arrest and/or conviction of one or more people.

However, for it to be considered substantial assistance, it has to be “assistance in the investigation or prosecution of another person.” Thus, assistance with one’s own prosecution will not result in a Rule 35(b) reduction.

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

Can a court review a prosecutor's refusal to file Rule 35(b)?

Just because a defendant has provided assistance during a federal case does not mean federal prosecutors will necessarily file a Rule 35(b) motion on the defendant’s behalf.

Neither Rule 35(b) nor most plea agreements precisely define “substantial assistance.” Instead, they leave it up to federal prosecutors to make the determination based on the assistance provided. Thus, prosecutors generally have broad discretion.

1. Why Prosecutors May Decline to File Rule 35(b) Motions for Cooperating Defendants

Prosecutors may decline to file Rule 35(b) motions for cooperating defendants.

If the assistance a cooperating defendant provides does not meet the criteria for substantial assistance, federal prosecutors have the authority to decline to file a Rule 35(b) motion.

The assistance may also be substantial, but federal prosecutors still have the authority to decline to file a Rule 35(b) motion, even if the defendant’s assistance helped investigative or prosecutorial efforts. For example, the information the cooperating defendant provided could have proven inaccurate or unhelpful.

2. Why a Court Has the Authority to Review a Prosecutor’s Refusal to File a Rule 35(b) Motion in Wade v. United States

When a prosecutor refuses to file a Rule 35(b) motion, courts are required to address it. This issue was addressed in the case of Wade v. United States, 504 U.S. 181 (1992).

In Wade, the United States Supreme Court affirmed the Fourth Circuit Court of Appeals’ holding that a prosecutor’s refusal to seek a sentence reduction “within a pleading context is eligible for judicial review to the limited extent that the refusal is motivated by an unconstitutional motive.”

3. What Constitutes Unconstitutional Prosecution and When Does That Warrant a Sentence Reduction?

Some examples of what could be seen as unconstitutional motives include race or religion. Additionally, any motive that is not tied to some legitimate governmental objective, such as deterrence or incapacitation, would also constitute an unconstitutional motive that would warrant a sentence reduction.

However, courts have never declared a federal prosecutor’s refusal to file a Rule 35(b) motion to be motivated by unconstitutional motives, which would force him to seek a sentence reduction.

So the court will generally not intervene to force a prosecutor to seek a sentence reduction.

4. When Can Defendants Hold Prosecutors Accountable for Their Refusal to File a Rule 35(b) Motion?

Defendants can hold federal prosecutors accountable for their refusal to file a Rule 35(b) motion when the defendant and the prosecutor had a clear and enforceable plea agreement.

In these circumstances, the prosecutor can’t just claim substantial assistance is too ambiguous to be defined. The promise of a Rule 35(b) motion must be explicit, and the defendant must have provided assistance that is unambiguously-substantial. If the prosecutor then refuses to file a motion, then the court will find a breach of the defendant’s plea agreement. If the court determines that the prosecutor’s refusal to file is a breach of the agreement, the court will direct the prosecutor to file a motion.

5. Why Should Defendants Not Depend on Federal Prosecutors to File Rule 35(b) Motions?

Ultimately, the last word is with the federal prosecutor on whether he will file a Rule 35(b) motion.

The legal arguments described here to try to limit the prosecutor’s discretion only work in exceptional circumstances. Therefore, it is generally best for defendants to not depend on federal prosecutors to seek sentence reductions on their behalf through the Rule 35(b) process.

Does the judge have to follow the prosecutor's recommended reduction?

As we have already noted, even if the federal prosecutors seek a sentence reduction, they have to do so through the court. This means the judge has the last word on whether a sentence reduction will be granted, and on the amount of reduction to be granted.

1. Why doesn’t a prosecutor’s recommended Rule 35(b) reduction bind the sentencing judge?

The amount of Rule 35(b) reduction federal prosecutors seek is just a recommendation. It does not bind the federal judge who is deciding on the reduction, and it is not based on an established sentence reduction percentage.

As a result, the defendant’s counsel can argue for a reduction larger than that recommended by the federal prosecutor. The judge also can decline to grant any reduction, or he can grant any reduction that is between the prosecutors’ recommended reduction and the defendant’s sentence length.

2. Can a defendant’s sentence reduction based on Rule 35(b) go below the statutory minimum sentence?

Yes. Rule 35(b)(4) specifically permits federal judges to grant sentence reductions under Rule 35(b) that reduce a defendant’s sentence to below the statutory mandatory minimum.

3. When will courts grant a Rule 35(b) motion for substantial assistance?

When evaluating a Rule 35(b) motion for substantial assistance, federal courts will consider:

• The defendant’s pre-sentencing assistance,
• The defendant’s assistance during the prosecution’s investigation or prosecution of others.

Rule 35(b) doesn’t require that the defendant assist in the prosecution or investigation of a particular case. Thus, if a defendant assists in an investigation or prosecution of another criminal offense, he may be entitled to a Rule 35(b) reduction.

4. Are hearings required in Rule 35(b) proceedings?

No hearings are required for Rule 35(b) proceedings. The court will make its decision after reviewing the Rule 35(b) motion filed by the federal prosecutors, as well as any opposition filed by the defendant’s counsel.

5. Are defendants required to be present in Rule 35(b) proceedings?

Again, no hearings are required, so there is generally no need for defendants to be present. Rule 43(b)(4) specifically states, “the presence of the defendant is not required during the Rule 35 proceedings.”

How long after sentencing can the government file a Rule 35(b) motion?

Rule 35(b)(1) requires the government’s motion for a Rule 35(b) sentence reduction to be filed within one year of sentencing. However, Rule 35(b)(2) permits federal prosecutors to file motions after one year of sentencing.

In cases that are eligible for a Rule 35(b) motion filed after one year of sentencing, the motion may be based on:

• Information unknown to the defendants during the first year of sentencing, which, upon discovery, would satisfy the requirements of the federal sentencing judge to grant a Rule 35(b) motion.
• Information that was available to the defendants, but that became useful for the federal government’s investigation or prosecution after one year of sentencing.

Information that becomes useful must be provided prompty after it becomes useful.

1. Can the Government File More than One Rule 35(b) Motion in a Single Case?

The government can file multiple Rule 35(b) motions in a single case, but each motion must independently satisfy the requirements of Rule 35(b). So, if the federal prosecutors filed a Rule 35(b) motion during the first year of sentencing, but they didn’t obtain the defendant’s assistance on the federal prosecutors’ case, then the federal prosecutors may be able to file another Rule 35(b) motion after one year of sentencing.

2. What is the Scope of Rule 35?

Rule 35 governs the process for correcting and reducing federal criminal sentences.

There are two subsections of Rule 35: Rule 35(a) and Rule 35(b).

Rule 35(a) allows the federal government to file a motion to correct a clear error in sentencing.

Rule 35(b) allows the government to seek a sentence reduction for assisting with the investigation or prosecution of another person.

3. Does Rule 35(a) Allow for Sentence Reduction for Substantial Assistance?

No, Rule 35(a) specifically governs motions based on clear sentencing errors. Thus, Rule 35(a) is not based on the defendant’s assistance. It is Rule 35(b) that permits a sentence reduction for substantial assistance.

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.