When a person commits and is convicted of a federal crime, the federal courts must follow the federal sentencing guidelines. The United States Sentencing Commission is the authority tasked with setting these guidelines. In most cases, these guidelines are wide. This gives prosecutors wide berth for making recommendations to a judge or a jury for a fine or prison sentence. When a person plays a minor role in a federal crime and cooperates with the federal authorities investigating the case, there is plenty of latitude for the defendant’s lawyer to argue for a shorter prison term, smaller fine or a combination of these.
Judges have the authority to determine what a minor role is in a federal crime. A few examples of a minor role in a crime might include a person who pays for fuel for a car when they know that car will be used in the robbery of a bank. A minor role may be a person who provides SIM cards for disposable phones used in an extensive drug ring.
When a person is arrested and charged with a federal crime, detectives and investigators will speak with them after reading them their rights. A person always has the right to refuse to speak or to ask their attorney to be present during the discussion. An attorney may counsel their defendant to cooperate and provide helpful information in order to potentially reduce their criminal sentence. This advice is often given if the federal government has enough evidence to convict the defendant regardless of their cooperation. A defendant may provide written or oral testimony of the crimes of others. They may provide evidence or tell the prosecutors where additional evidence may be found. They may also give the names of others who were involved in the crime.
When a cooperative person works with authorities to secure the conviction of those who played a major role in a federal crime, the prosecutors write what is called a “5K letter.” The 5K letter comes from the language in the United States Sentencing Guidelines 5K1. 1. It states that the prosecutor has the authority to ask the judge in a federal crime case to substantially lower the cooperative participant’s sentence if the defendant provided “substantial assistance” to the federal government. The judge decides if the defendant meets the definition of substantial assistance.
A prosecutor has no obligation to write a 5K letter to the judge in a federal case. If a defendant who played a minor role worked out a deal to provide information in exchange for a request of a shorter prison term or smaller fine, their lawyer needs to get this deal in writing. Both parties need to keep their end of the bargain in order for the letter to be sent. Even if the defendant provides what they feel is substantial assistance to the federal prosecutor, the prosecutor might decide that the assistance wasn’t that helpful after all. If the prosecutor fails to prosecute the major defendants in the case, the defendant accused of the minor crime may be out of luck. The prosecutor might not send the letter, and they would face the possibility of a maximum sentence under the federal sentencing guidelines.
The federal sentencing guidelines provide judges with a lot of discretion for sentencing. Judges consider several factors when handing a sentence to a convicted individual. One factor is the individual’s criminal history. If this was their first time being charged with and convicted of a crime, the judge may be more easily convinced by a defense attorney to deliver a reasonable sentence. The nature of the crime is another consideration. Violent crimes, even if the defendant played a minor role in them, often come with a longer prison term. Judges may also consider the defendant’s age, health and family circumstances when determining the sentence for a federal crime.
If a prosecutor doesn’t send a 5K letter or if the judge receives but ignores the letter, a defendant who played a minor role in a federal crime still has legal options at their disposal. A criminal defense attorney may file an appeal on their behalf, especially if the sentence is unreasonable. However, what is “unreasonable” is often subjective. For example, it may be unreasonable to sentence an 85-year-old great-grandmother to 50 years in prison for giving a ride to a person who robs an FDIC-insured bank. However, the court may not find the same sentence to be unreasonable for a 30-year-old person with a past criminal record.
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