Challenging the Government's Refusal to File a 5K1.1 Motion.

USSG § 5K1.1 is the provision that permits a court to impose a sentence outside of the recommended federal guideline range if the government files a substantial-assistance motion. However, under the Federal Sentencing Guidelines, the government has broad but not unreviewable discretion to file a 5K1.1 motion. This makes challenging the government’s refusal to file a 5K1.1 motion extremely difficult in federal courts.

In 1992, the Supreme Court of the United States addressed a challenge to the federal government’s refusal to file a 5K1.1 motion in Wade v. United States. The Court stated that the government is not required to file a 5K1.1 motion and declined to allow discovery or an evidentiary hearing absent a “substantial threshold showing” of improper motive.

This Supreme Court decision has been interpreted in various ways in federal district courts. We have a substantial amount of experience dealing with issues under USSG § 5K1.1 in the U.S. District Courts in the Fifth Circuit. Some circuits permit judges to offer sentences outside the recommended federal guideline range even if the government does not file a 5K1.1 motion. In some cases, judges credit assistance under 18 U.S.C. § 3553(a) without a government motion. Several circuits also consider the government precluded from withdrawing a 5K1.1 motion after it has filed it.

Another decision in United States v. Padilla showed that factual findings supporting the government’s refusal to offer a 5K1.1 motion are not overturnable except for “clear error,” but judges can overturn the refusal if it was based on “entirely unsubstantiated and illogical allegations.” Finally, the decision in United States v. Anzalone showed that the government cannot refuse to grant substantial assistance credit based solely on the defendant’s continued drug use.

What Proof Gets a Refused 5K1.1 Motion Reviewed?

Proving the Reality of Assistance

Proving that you provided real assistance, standing alone, entitles you to no remedy when facing the government’s refusal to file a 5K1.1 motion. This is because the government’s discretion to refuse a 5K1.1 motion is absolute in almost all cases, unless you make the exceedingly rare showing of a refused reward that entitles you to the statutory remedy under 18 U.S.C. § 3553(e).

Proving the Government Acts Without Rationality

Wade also permits review when the government’s refusal to file a 5K1.1 motion “bears no rational relation to a legitimate government end.” But just as showing that the refusal is irrational cannot allow a 5K1.1 motion to get sent back to the district court for review, a claim of irrationality alone will generally fail to meet Wade’s “substantial threshold” for review as well.

Proving a Mixed-Motive and Improper Intent

Proving that the government had an improper mixed-motive in refusing to file a 5K1.1 motion is another potential ground for review. But, like improper motive alone, generalized accusations of improper prosecutorial motive will generally not suffice to meet Wade’s threshold absent concrete supporting evidence.

Proving the Government Acted in Bad Faith

Can you get review of a refused 5K1.1 motion if the government acted in bad faith? There are several possible answers to this. Some circuits’ decisions suggest that this is possible, and several other circuits’ decisions suggest that it is not.

• The Second, Third, Eighth, Ninth and Tenth Circuits have taken positions that admit to reviewing a refusal to file a 5K1.1 motion on a basis of bad faith.
• The Fifth, Sixth, Seventh and Eleventh Circuits reject a freestanding bad-faith exception to the government’s broad discretion to withhold its 5K1.1 assistance reward recommendation.

Proving Discriminatory Reasons for the Refusal

The Supreme Court’s decision in Wade also expressly permits a federal court to review the government’s refusal to file a 5K1.1 motion when the refusal “rests on race, religion, or some other classification in violation of the Constitution.” So, if you can present “concrete proof” that your reward was withheld for these impermissible reasons, a review is possible and highly advisable.

Proving the Assistance is Real

For any of the above arguments, you’ll first need to prove that the government-conferred assistance you allegedly provided is real. While it might seem like an obvious step, proving substantial assistance takes more effort than it seems. Providing assistance for your own sentencing benefit will generally not be recognized as “substantial assistance” if it helps you in your own defense by only aiding you to avoid sentencing guidelines liability for offenses that you would have faced in any case without assisting the prosecution.

Does My Plea Agreement Require Prosecutors to File the Motion?

Plea Agreements Viewed as Contracts

The government’s refusal to file a 5K1.1 motion can also be challenged based on the language contained in the plea agreement. Many federal prosecutors assume that they can insist on a “no promise” clause and thus evade judicial review of their refusal. This is a common misconception, though. Federal plea agreements are interpreted as contracts. This means that there are substantial exceptions to the common-law interpretation rules (or a plea agreement’s “entire agreement” clause).

One particular exception is that ambiguity is read against the government. This is an application of the common-law rule of construction that reads ambiguity against the drafting party. So, if you sign a plea agreement that is ambiguous with respect to the government’s obligation to file a 5K1.1 motion, this is a favorable position to be in.

Contract Language that “Promises” a 5K1.1 Motion

Some plea agreements explicitly promise that the government shall file a 5K1.1 motion if a defendant fully cooperates. These agreements are unusual because most prosecutors are extremely careful not to commit themselves to filing a 5K1.1 motion. However, when they do do so, federal judges will generally hold these attorneys to their promise. If a prosecutor promises to file a 5K1.1 motion in a plea agreement, and the prosecutor fails to do so while the defendant fully complies with the requirements of the agreement, the courts will routinely sanction the government for its failure to fulfill the promised benefit. This is one of the first real cases in which prosecutors are held accountable and defendants are entitled to the benefits of their cooperation efforts.

“Sole-Discretion” Clauses

Many plea agreements containing a “sole-discretion” clause. This means that if the agreement includes a 5K1.1 motion, it says that the motion will only be filed at the government’s “sole and absolute discretion.” While these provisions are designed to prevent challenges to the government’s refusal to file a 5K1.1 motion, most circuits allow a challenge based on an unconstitutional motive behind the government’s decision.

Remedies for Breach of a Plea Agreement

If the government breaches a plea agreement, the sentencing judge can deny a request for a plea withdrawal and proceed with sentencing in accordance with the original agreement. In Santobello v. New York, the Supreme Court established two ways of fixing the breach. The appropriate remedy is specific performance, or, it’s allowing the defendant to withdraw their plea. It is then up to the court to decide which remedy is appropriate under the specific circumstances.

Plain-Error Review of Unpreserved Breach Claims

In the federal system, if you accept a plea agreement but fail to preserve your rights under an appellate waiver, the claim may be reviewable only under plain error review. The Supreme Court adopted this rule in Puckett v. United States.

Appeal Waivers Do Not Bar the Government’s Breach

In many cases a defendant has filed an appeal waiver in a plea agreement, while in other cases this has been negotiated away. In neither case does it bar the defendant’s ability to appeal the government’s failure to execute the benefits of a plea agreement.

How Do I Build and Preserve a Challenge at Sentencing?

Building Your Record to Sustain a Challenge

If you are facing the possibility of a denied reward for substantial assistance, you will need to start building your record to sustain a challenge early on. Log every debriefing date, the federal agent you spoke with, the federal prosecutors, and the target of the debriefing.

As important as the government’s prosecution is at the sentencing phase, the facts of the case can just as easily be manipulated in order to favor the government’s position. In order to build a reliable record to preserve your defense, it is imperative that all substantial cooperation attempts and the government’s response are documented on a factual basis. These are the details that need to get the record ready for sentencing as well as to help support any claims made at the later stages.

Building and Preserving the Record for Review

With this record in place, the next step is to force the government’s hand. If the government refuses to file a 5K1.1 motion, you can ask the court to require it to state its reasons on the record. This is a huge opportunity for you to build and protect your right to review the refusal. In United States v. Mikaelian, the court ordered the government to make its debriefing report available to the defense’s review in camera.

When In Camera Inspection and In Camera Hearing Apply

In many cases, the federal government will refuse to divulge information by invoking the law enforcement investigative privilege or, for classified material, the Classified Information Procedures Act, citing protection of ongoing investigations or protection of a national security secret. If you believe this is a tactic, it is imperative that you ask the court to perform an in camera inspection. This is a key remedy that allows the judge to review the record without making it publicly available.

When to Object at Sentencing

When you object to an adverse ruling during sentencing, your objection will be based on Rule 32 of the Federal Rules of Criminal Procedure. This is part of your case’s procedural record.

If a sentence you have filed is denied at sentencing, a request for a deferred sentencings, or if your defense attorney did not get a response from the government, you have more rights. A judge denying a sentencing objection should say “overruled” and then state the reasons.

When to State Sentencing Reasons in Open Court

Under 18 U.S.C. § 3553(c), a district judge must state his or her sentencing reasons in open court for a defendant’s review. To ensure the judge’s reasons are included in the sentencing record, you have to demand that the sentencing reasons be included in the final sentencing judgment. While it is important to make the record as clear as possible, this last step of making sure all of the sentencing judge’s reasons appear in the record is essential for the appeals.

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

Can the Judge Credit Cooperation Without a Government Motion?

USSG § 5K2.0 and the Mandatory Minimum Issue

USSG § 5K2.0, the general policy statement on grounds for departure based on circumstances the Sentencing Commission did not adequately take into consideration, is not an alternate route to a substantial-assistance departure. A key issue that it presents for defendants is when a substantial-assistance departure is not enough to get below a statutory mandatory minimum.

In Melendez v. United States, the Supreme Court said that a 5K1.1 departure, standing alone, cannot be used to reach a mandatory minimum. This holds true even when the government makes an offering for a 5K1.1 motion to go below the mandatory minimum. To get below a mandatory minimum, the government must file a substantial-assistance motion under 18 U.S.C. § 3553(e).

USSG § 5K1.1 and USSG § 5K2.0 in the Face of Mandatory Minimums

Can USSG § 5K1.1 assistance departures be combined with USSG § 5K2.0 assistance departures? In theory, yes. But in practice, the first thing a defendant needs to have is a 5K1.1 motion from the government. Then, the sentencing judge must have grounds to grant a 5K1.1 departure. Lastly, any additional grounds for a 5K2.0 departure must be determined independently by the sentencing judge.

Do Federal District Judges Use a Cooperation-Based Variance?

With the sentencing guidelines now advisory under United States v. Booker, federal district judges have much more flexibility during sentencing. In the case of United States v. Fernandez, a court was persuaded to weigh uncredited cooperation in light of the facts.

Can a Cooperation-Based Variance Bring a Sentence Below a Mandatory Minimum?

If you don’t have a 5K1.1 motion, then you are eligible for a cooperation-based variance under 18 U.S.C. § 3553(a). However, unlike a government motion under 18 U.S.C. § 3553(e), a cooperation-based variance cannot break through a statutory mandatory minimum. For a case that involves a statutory mandatory minimum, a government motion under 18 U.S.C. § 3553(e) or safety-valve relief under 18 U.S.C. § 3553(f) is necessary.

Do the USSG § 5K1.1 Factors Influence a Cooperation-Based Variance?

The USSG § 5K1.1 factors do not directly influence a cooperation-based variance. Instead, these factors govern the size of the assistance departure; and other, relevant facts govern the ultimate sentence to be served. While the factors under USSG § 5K1.1 can be used as part of a federal judge’s considerations under 18 U.S.C. § 3553(a), the factors under the Federal Sentencing Guidelines do not strictly apply in a cooperation-based variance.

Do the Factors under 18 U.S.C. § 3553(a) Influence a Cooperation-Based Variance?

Yes, the factors under 18 U.S.C. § 3553(a) are what dictate a cooperation-based variance. With the decision of Booker and its impact on the Sentencing Guidelines, the factors under 18 U.S.C. § 3553(a) are what the judge will consider when determining the sentencing range within the applicable guideline, as well as deciding the post-Booker sentence.

What Can Cooperation Realistically Change in My Federal Case?

How Often Does the Government Move to Grant a 5K1.1 Departure?

According to recent data from the U.S. Sentencing Commission, substantial-assistance departures were granted in under ten percent of federal cases. The amount of reduction granted is similarly low in that, for defendants that were granted substantial-assistance departures, the median substantial-assistance reduction ran near half of the otherwise applicable sentence. There was some variation between districts with rates from near zero to above forty percent.

Is a 5K1.1 Motion the Right Way to Address Your Charges?

The motion to request a 5K1.1 departure from the government is specifically for a reduction in sentencing; thus, it doesn’t result in any charges being dismissed. To get charges dismissed, it is imperative to negotiate a non-prosecution agreement or deferred prosecution agreement. So, if you want to get charges dismissed, then you need to negotiate for one of those options instead of the 5K1.1 motion.

Why You Need a Lawyer to Review Your Proffer Letter

The key thing to understand about proffers is that they are subject to the Federal Rules of Evidence, the Federal Rules of Criminal Procedure, and the U.S. Constitution. A typical proffer letter will waive Federal Rule of Criminal Procedure 410 in respect to the use of the statements for the purposes of impeachment and rebuttal. For example, the government will seek to rely on any statements made by a defendant during a proffer interview and they can also rely on any information learned through a proffer interview.

Therefore, we have been careful to negotiate terms which only allow the government to use information provided in a proffer if it is otherwise admissible by other means.

Why Failed Cooperation Is Extremely Dangerous

Failed cooperation is extremely dangerous. Not only can it jeopardize your future right to present a trial witness if the witness has participated in a failed proffer that provides the government with statements that they can use to impeach their witness, but it can hurt your ability to testify in your own case as well.

Moreover, in light of the obstruction enhancement under USSG § 3C1.1, making false proffer statements is a risky game. If discovered, a false proffer can cost a defendant any possible credit under the Sentencing Guidelines for “acceptance of responsibility” under USSG § 3B1.1.

What If My Cooperation Continues After I Am Sentenced?

The Post-Sentencing Reduction Opportunity under Rule 35(b)

For defendants whose cooperation effort is still ongoing at the time of sentencing, Federal Rule of Criminal Procedure 35(b) presents the possibility of a reduction. Just like with a 5K1.1 motion, the filing is solely within the government’s control. The provision to allow the government to file a motion for reduction after sentencing is an integral piece of any defendant’s cooperation efforts. If a defendant’s cooperation efforts go past the sentencing date, he or she should work towards securing a commitment from the government to file a Rule 35(b) motion.

With regard to Rule 35(b) motions, the following considerations also apply.

Timing of Rule 35(b) Motions

Rule 35(b)(1) imposes a one-year deadline measured from the sentencing of the defendant. If the defendant’s assistance, or the government’s efforts to rely on that assistance, continues past this one-year mark, Rule 35(b)(2) carves out three exceptions permitting a Rule 35(b) motion to be filed after that time.

Reduction below Mandatory Minimums

For sentencing reductions based on assistance provided to the government, the Federal Rules of Criminal Procedure make a provision for reductions that go below the statutory minimum. This is the provision that authorizes federal district courts to grant substantial-assistance reductions below a statutory minimum for Rule 35(b) motions.

Adjourning Sentencing if Cooperation Efforts Are Unresolved

If you are at the risk of losing the 5K1.1 reward from the government because cooperation is still ongoing at the time of sentencing, then it is in your best interest to adjourn sentencing. If you adjourn sentencing, the sentencing judge will maintain jurisdiction over the case, and you will remain eligible to have your 5K1.1 motion filed.

Comparison Between 5K1.1 Assistance Departures and Rule 35(b) Assistance Reductions

The main difference between an assistance departure under USSG § 5K1.1 and an assistance reduction under Federal Rule of Criminal Procedure 35(b) is that one pertains to the judge and the other pertains to the court. 5K1.1 applies at sentencing. On the other hand, Rule 35(b) applies only after sentencing.

Federal Rule of Criminal Procedure 35(a) limits the court to corrections that go to “arithmetic or other clear error” and imposes a 14-day window.

Federal Rule of Criminal Procedure 35(b) was last amended in 2002 and 2009, and has been since the rules were rewritten under Rule 35.

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.