Is Cooperation Worth It If I'm Facing Mandatory Minimums??

Is Cooperation Worth It If I

& #x27;m Facing Mandatory Minimums? If facing mandatory minimums, the calculus changes. Cooperation is one way to get around them, but it may be the only way. Section 3553(e) of Title 18 requires the prosecutor to file a motion to avoid the mandatory minimum sentence. Without a prosecutor’s motion, the judge cannot apply the mandatory minimum rule exception.

However, section 3553(f) provides “safety valve” relief for some defendants. If you qualify for relief under § 3553(f), the prosecutor’s opinion doesn’t matter; the judge can unilaterally grant relief even without a motion.

Wait, but some charges are subject to mandatory minimums that have no safety valve provisions. Section 924(c) is one of these. A violation of § 924(c) triggers a sentence that runs consecutively to any other statutory sentence, and there is no safety valve provision within the statute.

So, what is the realistic chance of beating federal charges? According to the United States Sentencing Commission, the number of guilty pleas in federal convictions is staggering: roughly 97 percent of federal convictions are guilty pleas, with just a small percentage going to trial. In federal cases that go to trial, juries convict approximately 9 out of 10 defendants.

The probability of facing criminal prosecution in federal cases increases when the government has evidence that is hard to keep from being used in court, including evidence obtained pursuant to warrants that were defective. In United States v. Leon (1984), the Supreme Court held that the “good faith” exception is applicable, and if officers relied in good faith on a defective warrant, this preserves the evidence’s eligibility for use. In Franks v. Delaware (1978), the Court stated that a substantial preliminary showing is required before a hearing to investigate warrants obtained by affirmative misrepresentation. And in New York v. Quarles (1984), the Court noted that un-Mirandized questioning about the location of a firearm would be admissible under a public safety exception.

What can cooperation actually do to a mandatory minimum?

If you qualify for substantial assistance, this can provide substantial benefits to your case. The most common type of substantial assistance departure is the section 5K1.1 departure. This is a departure from the guidelines range. That is, a 5K1.1 motion is used to provide a reduction from a sentence within the Guidelines range, even if that sentence is below the Sentencing Commission’s minimum. The 5K1.1 motion’s effect doesn’t flow to mandatory minimums. In other words, the 5K1.1 motion will not provide a reduction for a defendant who is facing a mandatory minimum sentence.

In other words, the 5K1.1 motion is not available for all defendants. For example, a defendant cannot use a 5K1.1 motion to obtain a reduction for the sentence that is below the statutory minimum.

The U.S. Supreme Court upheld this in Melendez v. United States (1996). In that case, the court held that “nothing in § 5K1.1 indicates that, when applicable, it will unlock the court’s authority to apply statutory-minimum relief.” This means that the § 5K1.1 motion will not, by itself, unlock a court’s authority to apply statutory-minimum relief; and, therefore, federal prosecution for a federal crime subject to a statutory-minimum sentence would still apply.

Now, let’s look at the potential repercussions of your attempting to qualify for a substantial assistance departure under 5K1.1. Let’s think about the case of Wade v. United States (1992). In Wade, the government declined to file a § 5K1.1 motion under the federal sentencing guidelines. The U.S. Supreme Court held that refusals to file 5K1.1 motions are subject to review only where there are constitutional issues involved. So, unless a constitutional issue is involved, alleging that the government is wrong to decline to file a § 5K1.1 motion will not do any good. It would also not entitle you to a hearing on the matter and it would not entitle you to discovery.

If you’re facing a mandatory minimum sentence, then you’ll need to persuade the prosecutor to file a § 3553(e) motion. These motions are much rarer than a 5K1.1 motion. And, in order to file a § 3553(e) motion under the law, the prosecutor’s motion must state that your reduction is for the “sole purpose of granting a sentence below a statutory minimum. The court may only reduce the sentence if it is based on the assistance provided; the court may not grant the reduction based on other factors, such as family connections, health status, remorse, or other mitigating factors.”

How often does substantial assistance lead to a sentence below a mandatory minimum? According to data collected by the United States Sentencing Commission, “The number of defendants who received a §5K1.1 substantial assistance departure in fiscal year 2016 was 7,443. So, this was approximately 1 in every 10 defendants who received a sentence in 2016.” How often does the substantial assistance departure result in an avoidance of the statutory mandatory minimum sentence? The Sentencing Commission reports that substantial assistance departures are effective. For defendants who qualify for substantial assistance, the average reduction in years to be sentenced was 5.3 years, or about half of the average sentence under the Guidelines without the departure. Also, the prosecutor’s recommendation in the motion is not binding. The court will determine to what extent a sentence should be reduced. In some cases, a judge might award less reduction than what the prosecutor has recommended in the motion.

Can the safety valve help without prosecutor approval?

You could potentially avoid the mandatory minimum without the prosecutor’s assistance if you qualify under the “safety valve” provision of 18 U.S.C. § 3553(f). There are five statutes that a defendant may be eligible for relief under the safety valve. The safety valve applies to violations of 21 U.S.C. §§ 841, 844, 846, 960, and 963. However, there are a number of other requirements as well. For example, a defendant is not eligible for safety valve relief if:

• “The defendant possessed a firearm or other dangerous weapon in connection with the offense”
• “The offense resulted in death or serious bodily injury to any person”
• “The defendant did not organize, lead, manage, or supervise others in the commission of the offense”
• “The defendant has more than four criminal history points, a prior three-point offense, or a prior two-point violent offense”

What about a drug debrief? While you do have to provide information to the government as part of a safety valve, this debrief is only about “your own conduct and that of others that you assisted with the commission of the offense.” The purpose of the drug debrief is for the defendant to “truthfully, fully, and accurately” describe their own conduct and that of others they assisted with in commission of the crime. So, if you’re facing mandatory minimum, then it may not be required to “rat out” someone else.

When is the information supposed to be provided to the government? The information is required to be provided by the date of your sentencing hearing, not the date you enter a plea. So, while you will have to provide the information before the date of the hearing, there is no requirement for the information to be provided at the time you enter the plea.

How do your prior drug convictions impact your chances of qualifying under the safety valve? In Pulsifer v. United States, the court said, “Any one of the three disqualifiers under the three separate parts of subparagraph (f) will be enough to prevent defendant’s application of the safety valve.” With that in mind, one prior offense of three points now eliminates eligibility by itself.

So, if you don’t have any priors and you didn’t carry a gun, and you weren’t involved in the administration of any drug organization and you didn’t have any other priors in drug crimes that would carry federal punishment, then you may be eligible to get assistance without the prosecutor’s consent. If you’re facing mandatory minimum and you’re eligible, you don’t have to be afraid.

Is cooperation worth it?

Now that we have answered your question, so it’s time to look at the benefits of cooperating with federal authorities. If you are facing federal charges for the first time and you’re not eligible to get around the mandatory minimum sentence without the prosecutor’s assistance, then the next question is: what can cooperation do for you and your case? So, if you think cooperation will do good, then we recommend having a defense attorney to guide you in this process. So, contact our firm, Spodek Law Group, and talk with our defense attorney.

What must be negotiated before I plead guilty?

It depends on the charges against you. Let’s look at some of the mandatory minimums. Under § 924(c) the sentence is at least five years for using or carrying a firearm during and in relation to a crime of violence or drug trafficking crime, or for possessing a firearm in furtherance of such a crime. The penalty is at least seven years if the firearm is brandished. Use of a firearm discharge brings ten years of prison. The penalties for § 851 information may bring the penalty up to 15 years. The government’s notice is filed under 21 U.S.C. § 851. And, it must be filed either on or before the trial date or before the defendant enters the plea in court. In other words, this means there is a hard deadline here. And once the deadline passes, you have the upper hand in negotiations. So, in other words, if the prosecutor fails to deliver the notice before you plea or enter the date, you are safe.

Wait, but what about mandatory minimums not related to drug charges, such as those in a gun possession case? These also count. In other words, federal statutes provide for mandatory minimums for a variety of criminal offenses that can go up to 30 years of incarceration. And, according to the U.S. Supreme Court in Alleyne v. United States (2013) and in a jury trial where no jury is present, the fact that each a mandatory minimum sentence can be increased based on certain facts is subject to the jury’s finding. If the facts do not allow for any higher punishment, the jury must determine this in court. However, here again, this can be avoided by negotiating the charges or pleading to count or counts that are below the quantity threshold that is considered significant enough.

For drug offenses, the government can only impose a statutory floor if there is substantial evidence to support the allegations. So, the indictments must specifically allege a quantity of drugs. Again, if the defendant doesn’t accept the allegations, it must go to trial. The most common outcome here is to plead a count for a smaller quantity of drugs so the punishment is not beyond the statutory floor.

Finally, what can happen with § 3553(a) and are you able to get the sentence to be decreased below a statutory floor? The answer is that § 3553(a) is more relevant to those who don’t have a statutory floor imposed upon. However, in drug offenses and other crimes subject to minimums, it will not apply here. This means, the judge is not allowed to go below the statutory minimum due to the findings of the court unless there is a § 3553(e) or safety valve relief. Also, since there is no verdict of guilt, you will not need a consecutive punishment for § 924(c), as this will only apply if the defendant is convicted of the offense.

What can go wrong during a cooperation proffer?

While the benefits listed above can make a compelling case for seeking a favorable cooperation agreement, don’t overlook the risks. At Spodek Law Group, we identify these risks with each of our clients who consider negotiating with the federal authorities. Here are six major risks you may face:

1. The Early Bird Gets the Worm

Timeliness is an express factor under § 5K1.1. This means that it is structurally biased towards whoever debriefs first. If you hesitate to debrief the drug law enforcement agents or prosecutors, it is possible that you will lose the benefit. When faced with a mandatory minimum, timeliness can be the biggest factor in the negotiation between you and the prosecutor.

2. Standard Proffers are Not Immunity

Another common risk is relying on standard proffer letters. The term “immunity” is very broad. Here, under 18 U.S.C. § 6002, the government can grant statutory immunity. While it is not a standard proffer, the statute makes it clear that the immunity granted thereunder is not subject to the terms and conditions described above. This is a case where a proffer letter would not give you the statutory immunity under 18 U.S.C. § 6002.

3. Derivative Use of Statements

When you discuss cooperation with the federal prosecutor, you also need to know what is at stake. In another word, Kastigar v. United States (1972) is a landmark case. It prohibits the derivative use of a compelled confession. The issue is how the prosecution can prove the defendant’s guilt without using information from the compelled confession. But, proffer letters and other agreements usually don’t provide immunity against derivative use.

4. Waiver of Your Protections

One major risk here is that, under a standard proffer letter, you could accidentally waive some of your constitutional rights. In United States v. Mezzanatto (1995), the court upheld the validity of an agreement that waived Federal Rule of Evidence 410(a) protections. As a result of that, any statement that a defendant makes during plea negotiations can be used by the prosecutor. So, the defendant must negotiate carefully with the prosecutor so that their statement is not used against them, even if it is not related to a crime. This requires a careful negotiation with the federal prosecutor.

5. Rebuttal of Any Contrary Testimony

Another risk is that, even though you might be eligible for a § 5K1.1 motion, a federal prosecutor could still use the statements you provide during a proffer to rebut any contrary testimony at the trial. In fact, many federal proffer agreements allow the prosecutor to use your statements to contradict testimony you give at the trial. This provides a good reason for choosing to cooperate, but also a reason to make sure the information provided is limited to that which is necessary to earn a substantial assistance departure. 6. Perjury

Another risk is that you could face additional criminal charges if you are found to have lied to federal authorities. If you make false statements to the government during the investigation or the trial, it could trigger a prosecution for making false statements under 18 U.S.C. § 1001. If a substantial assistance departure was on the table and the judge determines that the defendant knowingly made a false statement, then this will add a two-level obstruction enhancement to the Sentencing Guidelines under USSG § 3C1.1 and result in a longer federal prison sentence.

7. Breach of Contract

Finally, most cooperation agreements have a section stating that the government has sole discretion over the benefit awarded. This generally defeats any breach of contract claim unless there is a fraudulent statement from the prosecution or if the contract is violated so fundamentally that the government didn’t act in good faith. This is a very rare occurrence, however.

What happens if cooperation continues after I am sentenced?

Rule 35(b) is the authority for filing a motion for a sentencing reduction after the defendant has been sentenced. Generally, such a motion must be filed within one year of the date you are sentenced. But Rule 35(b)(2) allows the government to file a motion even if the year has already passed. This allows motions when the prosecutor “only just learned new information” or “prior information only just became useful.” Rule 35(b) is similar to § 5K1.1 in that it is the government’s right to seek a reduction, and the government’s opinion can never be removed. Like § 5K1.1, Rule 35(b) requires a prosecutor’s motion to get above the mandatory minimum.

2. Removal

Can cooperating with the authorities stop removal from the United States?

Not necessarily, but especially if you are convicted of a crime. The Immigration and Nationality Act (INA) defines drug trafficking as an aggravated felony. If you face charges for an aggravated felony under 8 U.S.C. § 1101(a)(43), cooperation with the federal authorities may not prevent removal. If you’re facing a crime under U.S. laws that carries deportation, then it may be important to consult with an immigration attorney to understand your case better.

3. Presentence Report (PSR)

Can cooperating lead to increased danger if you end up in prison?

Yes. If you cooperate, this will be noted in your presentence report. And the PSR travels with you through the Bureau of Prisons. This means that every correctional center would know that the inmate is a “rat,” increasing the risk of violence during sentencing. Although the Bureau of Prisons has separation orders and designated certain inmates in certain conditions, this does not guarantee protective housing.

4. Giglio

What about the effect of cooperation on other defendants?

In Giglio v. United States, the U.S. Supreme Court stated that any cooperation benefits granted to a testifying witness are relevant. This means the prosecutor has an affirmative obligation to disclose information, and testifying is at the disposal of the government. If you cooperate and your benefits are granted, then the defendants you testify against should be aware of these benefits. And, if you are found to have made a mistake or lied in court, you may need to face the risk of perjury, and your reduction may be revoked.

5. Rule 35(b)(4)

Finally, is a reduction available after sentencing if there is a statutory floor?

Yes. Unlike the § 5K1.1 motion, which does not unlock statutory-minimum relief, Rule 35(b) explicitly allows for a reduction below the statutory floor if provided. In fact, Rule 35(b)(4) says, “... and, after sentencing, the Court may reduce the term of imprisonment based on information provided for assistance by the prosecutor’s motion even if it would otherwise be precluded under the U.S. statute which imposes mandatory minimum punishment for the offense.”

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.