How Much Can a 5K1.1 Motion Reduce My Sentence??

There is no right answer to how much a §5K1.1 motion can actually reduce a defendant’s sentence. That is because a §5K1.1 motion does not specify a reduction and instead authorizes the judge to grant a departure based on a defendant’s “substantial assistance.” In order for a federal judge to grant a departure, there are several prerequisites. First, only the United States government may file a §5K1.1 motion. Then, once the federal prosecutor files the motion with the judge, the judge must determine whether the defendant is deserved for the requested departure, and then he or she must decide by how much he or she will reduce the sentence.

Importantly, there are no “hard numbers” at play here. There is no fixed percentage, level count, or number of years that applies when the government files a §5K1.1 motion. Similarly, a §5K1.1 motion does not automatically overcome a mandatory minimum sentence. In cases where this occurs, federal prosecutors must seek additional authority to lower the mandatory minimum sentence, often pursuant to 18 U.S.C. § 3553(e).

United States Sentencing Guideline (USSG) §5K1.1 is the provision that authorizes the judge to grant a Guidelines departure for “substantial assistance.” As stated in the Guidelines, qualifying “substantial assistance” involves: “substantial assistance in the investigation or prosecution of another person who has committed an offense.” The Guidelines provide no numeric threshold or criteria for defining “substantial,” so the determination is entirely within the federal judge’s discretion. This is another reason why there is no right answer to how much a §5K1.1 motion can reduce a defendant’s sentence.

The Guidelines also do not specify how cooperation must manifest, so a defendant’s cooperation can come in many different forms. It can involve:

• Information provided to the government
• Work assisting in an investigation
• Serving as an undercover informant
• Testifying on someone’s behalf

How Does a Judge Calculate the 5K1.1 Sentence Reduction?

So, if the government decides to file a §5K1.1 motion, how will the judge determine the size of a defendant’s sentence reduction? Under USSG §5K1.1(a) and Comment 1, a judge will assess the following factors:

• Significance and usefulness of the defendant’s assistance
• Truthfulness, completeness, and reliability of the information provided
• Nature and extent of the defendant’s cooperation

Again, as USSG §5K1.1(a) provides, the appropriate reduction “shall be determined by the court for reasons stated that may include, but are not limited to,” the factors listed in §5K1.1(a). It may have significant evidence on its side as well as evidence on its contrary.

The federal prosecutor will typically make a recommendation for a sentence reduction, but the judge is not bound by the prosecutor’s recommendation and will decide what he or she believes is warranted. A defendant can put forward their own arguments as well; they can also help with creating a sentencing memorandum that attempts to justify the sentence reduction the defendant seeks.

The sentencing memorandum plays an important role. If the defendant’s assistance in the government’s investigation occurred prior to the charge, it may be important to identify a date on which the defendant provided the information in order to establish that it was the defendant’s cooperation that led to the government’s ability to press charges. If the defendant’s assistance was more recent, identifying this date as well may be important. As a result, the sentencing memorandum should map relevant cooperation evidence to each of the §5K1.1(a) factors and present a clear case for the sentence reduction the defendant is seeking.

How Much Can a 5K1.1 Motion Actually Reduce a Defendant’s Sentence?

Once the government makes its motion, it is entirely up to the judge as to whether he or she will grant a reduction, and how much of a reduction he or she will grant if he or she decides to do so. For the same reason that a judge doesn’t have to grant a §5K1.1 motion, if the judge does decide to grant a §5K1.1 motion, it will not automatically result in a reduction of 100% (i.e. a sentence of probation).

Once the judge decides to grant the motion, however, it is then up to him or her to determine the amount of the sentence reduction that is warranted. This judgment call will take various factors into account:

• The nature and extent of the defendant’s cooperation
• The defendant’s level of assistance
• The resulting injury or danger to the defendant’s family and others
• The resulting injury or danger to the defendant

At this point, the judge may choose a reduction based on a percentage, i.e., 25%, 50%, or 75% reduction. A percentage-based reduction will always result in different sentence outcomes depending on the baseline. For example, if a defendant’s baseline Guidelines range includes a mandatory minimum sentence, the percentage reduction will be applied to that sentence. If a defendant’s baseline Guidelines range is well below the mandatory minimum, then the percentage reduction will be applied to that sentence instead. All of this will play a role in determining what the final sentence will be after the reduction is applied.

Can a 5K1.1 Motion Beat a Mandatory Minimum Sentence?

To avoid a mandatory minimum sentence, the government must file a separate motion that explicitly requests the authority to sentence a defendant below the mandatory minimum in the applicable case. This request is often filed alongside the government’s motion for the judge to grant a Guidelines departure under USSG §5K1.1. This request is most often filed under 18 U.S.C. §3553(e), and it is a statutory provision that allows the government to request a sentence below the statutory minimum so as to reflect the defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. If the government does not make a motion under 18 U.S.C. §3553(e) or another applicable statutory provision, then the mandatory minimum sentence will remain in full effect even if the judge grants the §5K1.1 motion.

If a defendant has been sentenced under the Guidelines, the Guidelines sentence range will be the departure baseline. In this scenario, the judge may impose a sentence below the Guidelines range but above the mandatory minimum sentence. If a defendant was sentenced to a sentence above the mandatory minimum sentence, then the mandatory minimum sentence will become the departure baseline. In this scenario, the judge will decide whether to grant a sentence reduction based on the nature, extent, and other assistance-related considerations.

Can Defendants to a Mandatory Minimum Sentence Avoid a Mandatory Minimum Sentence Under 18 U.S.C. §3553(f)?

Under 18 U.S.C. §3553(f), certain defendants facing a mandatory minimum sentence can be sentenced under the Sentencing Guidelines without regard to the statutory minimum. The section applies to the following defendants:

• A defendant who does not have more than 4 criminal history points (excluding any 1-point offenses), a prior 3-point offense, or a prior 2-point violent offense
• A defendant convicted of a covered drug offense under 21 U.S.C. §§ 841, 844, 846, 960, or 963, or 46 U.S.C. §§ 70503 or 70506

However, a defendant does not always qualify for the benefits of 18 U.S.C. §3553(f). Under 18 U.S.C. §3553(f)(5), a defendant must come forward and provide all information known to the defendant about the drug offense and other offenses that the prosecutor has investigated, including any information related to the defendant’s own role in a conspiracy to violate the federal drug laws. Not later than the time of the sentencing hearing, the defendant must truthfully provide the government with all information and evidence he or she has concerning the offense or offenses that were part of the same course of conduct or common scheme or plan. Even if a defendant qualifies under 18 U.S.C. §3553(f), the court still imposes a sentence under the Sentencing Guidelines and the §3553(a) factors, which will often include a term of imprisonment.

Does a §5K1.1 Motion Override Statutory Prohibitions on Probation?

Even if the government files a §5K1.1 motion and the judge grants the sentence reduction, USSG §5K1.1 does not override statutory prohibitions on probation. If the law requires a term of incarceration as part of a sentence, a §5K1.1 motion will not exempt the defendant from this requirement. As a result, defendants sentenced to mandatory minimum sentences will still be subject to any such requirements unless the government makes an additional motion under 18 U.S.C. §3553(e) or another applicable statutory provision.

Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

What Can Prosecutors Promise in Exchange for Cooperation?

Can a §5K1.1 Motion be Used in Exchange for Charges or Non-Prosecution?

The §5K1.1 motion is the unique tool that provides sentence reduction for defendants in federal criminal investigations. It does not dismiss the charges that were filed against them; nor, for that matter, does it provide any protections against future investigations or prosecutions. If a federal prosecutor offers a §5K1.1 motion, he or she can never offer it in exchange for non-prosecution or dismissed charges. Similarly, if a federal prosecutor offers to dismiss charges (and/or non-prosecution) in exchange for cooperation, he or she can never promise to file a §5K1.1 motion.

Can Investigating Agents or other Law Enforcement Officers Independently Promise a §5K1.1 Motion or to Dismiss Charges?

The decision of whether or not to file a §5K1.1 motion rests with the government. While investigating agents and other federal law enforcement officers may be involved in a federal criminal investigation, they cannot independently promise a §5K1.1 motion or a promise to dismiss charges. If an agent claims to have the ability to guarantee a specific result, you should rely on a federal criminal defense lawyer to review the agent’s claims and negotiate on your behalf.

If a Prosecutor Refuses to File a §5K1.1 Motion and Deny a Sentence Reduction, What Can I Do?

In general, as long as a prosecutor does not have an unconstitutional motive for refusing to file a §5K1.1 motion, the courts will not intervene. This means that a prosecutor will not be prohibited from refusing to file a §5K1.1 motion or grant a sentence reduction based on grounds that are constitutional, provided the refusal does not involve reasons that violate the Fifth Amendment or racial prejudice, religious bias, a desire to prosecute, etc.

Can Prosecutors Promise to Dismiss Charges or Proffer Non-Prosecution?

Yes, prosecutors can promise to dismiss charges, non-prosecute, and decline to pursue further investigations in federal criminal cases. However, the specific outcome of the criminal investigation will depend on the type of agreement the defendant enters into. If prosecutors offer to dismiss charges (or non-prosecution in exchange for cooperation), this is most likely the result of a plea agreement under Rule 11(c)(1)(A) of the Federal Rules of Criminal Procedure. These plea agreements can be negotiated and signed directly with the prosecutors.

What Happens When the Government Breaches a Promise Regarding Prosecution of Another Offense?

When the government makes a promise regarding the prosecution of another offense (that is not contained in a signed written agreement), a defendant who is charged with the offense in question must make an evidentiary showing of the promise and the government’s breach before seeking discovery or requesting an evidentiary hearing. The U.S. Supreme Court has established a substantial threshold showing for this before it will allow discovery. The case that established the Wade threshold was Wade v. United States.

What Happens When the Government Breaches a Promise Regarding Prosecution of the Defendant’s Offense?

Similar to the above, when the government makes a promise regarding prosecution of the defendant’s offense and then breaches this promise, the court will likely take action, but the type of action depends on the circumstances. If the defendant accepted a plea agreement based on a prosecutor’s promise and the promise is untrue, the court can intervene to ensure that the prosecutor is held to what he or she promised. The case of Santobello v. New York is the most notable case addressing this.

Can I Put the Government’s Prosecutorial Discretion in Check?

Generally, the government has complete discretion over prosecutions. However, even absent a written contract, any agreement that the government breaches in order to induce cooperation can have consequences. While a defendant cannot force the government to prosecute a case, the defendant can seek a breach of contract action against the government in certain cases. The U.S. District Courts have affirmed the government’s right to decide whether or not it will prosecute cases or individuals.

Can Cooperation Still Help Without a Pre-Sentencing 5K1.1 Motion?

Can I Get a Sentence Reduction After My Sentence is Already Final?

Yes, it is possible for defendants to receive a sentence reduction after their sentence is final. Federal Rule of Criminal Procedure 35(b) governs what are referred to as Rule 35(b) motions. A Rule 35(b) motion is similar to a §5K1.1 motion in that it is only available to the government, and it’s also similar in that it requests a sentence reduction for substantial assistance. However, unlike a §5K1.1 motion, a Rule 35(b) motion is filed after sentencing and can be filed by the prosecutor regardless of when the defendant’s assistance in the investigation took place.

When Can a Rule 35(b) Motion be Filed?

In general, the Rule 35(b) motion must be filed within one year after the sentencing. This rule is clear under Rule 35(b)(1) of the Federal Rules of Criminal Procedure. However, Rule 35(b)(2) allows for the filing of the motion after one year, and it further specifies several scenarios where this is the case:

• Rule 35(b)(2)(B) allows for the motion to be filed after one year, if information provided within the one-year time limit only became “useful” after one year.
• Rule 35(b)(2)(C) allows for the motion to be filed after one year, if the usefulness of the provided information was not “foreseeable” at the time it was provided (provided the information is promptly provided, i.e., promptly after the information was identified as having utility).

Can I Get a Sentence Reduction Under 18 U.S.C. §3553(a)?

In some cases, yes, a defendant can obtain a sentence reduction under 18 U.S.C. §3553(a). When a defendant’s information is useful but not substantial, a prosecutor may decline to file a §5K1.1 motion. In this scenario, as long as the sentence reduction results in a final sentence that does not dip below the statutory floor, the federal judge has the ability to consider a defendant’s substantial assistance. The judge has the authority to take the information into account as part of the sentencing process under 18 U.S.C. §3553(a).

What is the Difference Between a Rule 35(b) Motion and a §5K1.1 Motion?

A Rule 35(b) motion and a §5K1.1 motion both seek to grant defendants a sentence reduction for substantial assistance. The main difference between the two motions is when it is filed. Generally, a §5K1.1 motion is filed before the defendant’s sentencing, as the motion will authorize the court to sentence the defendant below the applicable guidelines.

A Rule 35(b) motion is filed after sentencing and provides for the reduction of the defendant’s sentence by the prosecutor. While a Rule 35(b) motion is typically filed when the defendant accepts responsibility for a crime and works with the government, it can also reward cooperation that begins after sentencing. The Rule 35(b) motion is subject to different time requirements as well; while a §5K1.1 motion only needs to be made within the window available to judges to accept sentencing information, the Rule 35(b) motion has time requirements under Rule 35(b)(1).

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.