FEDERAL CRIMINAL LAWYERS

Rule 35 Sentence Reduction

Welcome to Spodek Law Group. Our goal is to give you the information you need so you can make smart decisions about your case and your future. If you’re reading this, you’re probably hoping Rule 35 is your ticket to a shorter sentence. Maybe someone at your facility mentioned it. Maybe your family found it while researching options. Maybe you’re still at the pre-sentencing stage and wondering whether to save cooperation for later.

Here’s what nobody tells you upfront: Rule 35(b) sentence reductions are structured to benefit the government, not you. The entire mechanism is designed so you surrender your leverage first and the government decides later whether your surrender was valuable enough. According to U.S. Sentencing Commission data, Rule 35(b) reductions average 37.1% off original sentences – compared to 52.6% for 5K1.1 pre-sentencing departures. That’s a 15-percentage-point penalty for cooperating after sentencing instead of before.

Think about what that means. If you had information worth trading, and you waited until after sentencing to trade it, you just lost 15 cents on every dollar of potential reduction. That’s not a small difference. That’s years of your life.

The 15% Tax You Pay for Waiting

Heres the math that most cooperation discussions leave out. The Sentencing Commission tracks both Rule 35(b) reductions and 5K1.1 substantial assistance departures. Both require government cooperation. Both require providing information. Both depend on prosecutorial discretion.

But 5K1.1 departures – the ones filed before sentencing – average 52.6% off the guideline range. Rule 35(b) reductions – filed after sentencing – average 37.1% off the original sentence. Thats not an apples-to-apples comparison in every way, but the pattern is clear. Cooperating earlier gets you more.

Why would the system work this way? Becuase the goverment wants your information before trial, not after. Before trial, your cooperation helps build cases, flip other defendants, secure convictions. After sentancing, you’ve already been convicted. Your informaton is less urgent. Your leverage is gone.

If you have valuable information, the time to trade it is before sentancing, not after. Every day you wait reduces what your information is worth to the people who decide your sentence.

And heres the kicker – only 1.2% of federal defendants ever recieve a Rule 35(b) reduction. Thats right. For every 100 people hoping Rule 35 will help them, only about 1 actualy gets it. The other 99 serve there full sentences regardless of what they cooperated on.

Why Your Cooperation Agreement Probly Won’t Help

OK so you signed a cooperation agreement. You think that gaurantees something. Read it again. Look for this language: “the goverment may, but shall not be required to, file a motion.”

Thats the standard language. “May, but shall not be required to.” In plain English, that means the goverment can file a Rule 35 motion if it wants to. It dosent have to. And courts have consistantly ruled that this language means exactly what it says.

Even if you cooperate perfectly. Even if you provide information that leads to arrests. Even if you testify against codefendants. The goverment still has what lawyers call “unreviewable discretion” over weather to file. If the prosecutor says no, the answer is no.

Think about that from the goverments perspective. They want cooperation. They need witnesses. But they dont want to be locked into providing benefits. So they structure agreements that require your full cooperation while preserving there complete freedom to decide later weather you deserve anything in return.

This isnt a conspiracy. Its just how the system works. The goverment holds all the cards becuase the rules give them all the cards.

Heres were it gets really frustrating. You cant even appeal the goverments decision not to file. Courts have ruled that the only way to challenge a refusal to file is to prove the goverment acted based on an unconstitutional motive – like race or religion. Good luck proving that. Almost nobody can.

The One-Year Countdown Nobody Explained

Rule 35(b) has timing requirements that trip people up constantly. Heres how it works.

For standard post-sentancing cooperation, the goverment must file within one year of sentancing. If they dont file within that year, they generaly cant file later – unless one of three narrow exceptions applies.

Exception one: the information wasnt known to you until after the one-year mark. Exception two: you provided the information within the year, but it didnt become useful to the goverment until later. Exception three: the usefulness of the information couldnt reasonably have been anticipated until after the year, and you provided it promptly once you realized it was useful.

These exceptions are narrow. Courts interpret them strictly. “I didnt know it would be helpful” is not the same as “I couldnt have known.”

What happens in practice? You cooperate. You wait. The one-year deadline approaches. The goverment hasnt filed. You ask your lawyer to push them. Your lawyer reaches out. The prosecutor says there evaluating. The year passes. Nothing happens. Now your only hope is fitting into one of those narrow exceptions – and you probly dont.

Spodek Law Group sees this pattern constantly. Defendants who cooperated fully, who did everything asked of them, who assumed the motion would come – and it never did. By the time they realize the deadline has passed, its to late.

The lesson is simple: track the deadline yourself. Dont assume anyone is watching it for you. And if the year is approaching without a filed motion, that silence is telling you something important about your chances.

What “Substantial” Actualy Means (And Who Decides)

The rule requires “substantial assistance.” Not assistance. Substantial assistance. Thats a legal term, and the goverment gets to interpret it.

Heres how courts analyze it. First, the judge determines weather you actualy provided substantial assistance. The assistance cant be minimal – it has to be substantial, and more importently, the goverment has to consider it substantial. If the prosecutor says your help wasnt substantial enough, the judge will almost always defer to that assessment.

Second, even if the court finds you did provide substantial assistance, it then decides how much reduction you should get. This is were all sorts of factors come in: your criminal history, your character before sentancing, any presentence cooperation, your post-conviction conduct, even your health.

So you could provide information that leads to convictions. The goverment could file a motion acknowledging your help. And the court could still deny any reduction – or grant a reduction smaller then you expected.

Todd Spodek has watched this play out in ways that seem arbitrary to clients. Same quality of cooperation, different outcomes. Same level of risk taken, different rewards. The system gives courts broad discretion, and broad discretion means unpredictable results.

Heres the uncomfortable truth: “substantial” means whatever the goverment and the court say it means in your particular case. Theres no formula. Theres no gauranteed threshold. What was substantial in one case might not be substantial in yours.

The Information Surrender Problem

This is the part that dosent make sense until you live it. To get a Rule 35 reduction, you have to give up your information first. Completely. Before you know weather youll get anything in return.

Think about any other negotiation in your life. When you sell a car, you get payment before you hand over the keys. When you negotiate a salary, you get the offer in writing before you start the job. When you buy a house, theres a contract that binds both parties before money changes hands. But Rule 35 cooperation dosent work that way. You give everything first and hope for something in return.

Once youve cooperated, you have nothing left to trade. Your information is in goverment files. Your testimony is on record. Your cooperation is complete. And now you wait for the goverment to decide weather it was worth anything.

The goverment will tell you this is neccesary. They cant evaluate what your information is worth until they have it. They cant promise a specific reduction until they know how helpful you actualy are. From there perspective, the structure makes perfect sense. From your perspective, its a one-sided gamble with your freedom on the line.

This creates a horrible dynamic. People desperate for cooperation credit sometimes exagerate what information they have. They promise big information and deliver small information. The goverment then views them as unreliable. The motion never gets filed – or worse, they get charged with making false statements on top of there original offense.

Heres an example of how this goes wrong. Defendant promises he knows about a major drug network. He names names. The goverment investigates. Turns out his information was second-hand, unreliable, partially wrong. Now the goverment dosent trust him. His credibility is destroyed. No motion gets filed. And he served his entire sentence having given up information that helped nobody.

Todd Spodek tells clients the same thing over and over: dont exagerate, dont speculate, dont promise more then you can deliver. If your information is limited, say so upfront. Limited but accurate is better then extensive but wrong. At least you keep your credibility for what you do know.

The fundamental problem remains: you have to give first and hope later. The system dosent offer any alternative.

When Courts Can Override (Almost Never)

What if the goverment refuses to file a motion even though you cooperated perfectly? Can a court force them?

Theoreticaly, courts can override prosecutorial discretion in extreme cases. Practicaly, this almost never happens.

The standard is that you have to prove the goverment refused based on an unconstitutional motive. That means proving they declined your motion becuase of your race, religion, national origin, or something similar. Not becuase they didnt value your information. Not becuase they changed there mind. Not becuase a different prosecutor took over. Only unconstitutional motives count.

Think about how hard that proof is. You need evidence that the prosecutor specificaly targeted you becuase of a protected characteristic. Where would you get that evidence? The prosecutors not going to admit it. Theres no discovery process in this situation. Your claiming something you cant prove, and the court knows it.

And even if you somehow had evidence of bad faith, courts are extremly reluctant to second-guess prosecutorial decisions. The entire system is built on prosecutorial discretion. Judges dont want to start policing that discretion becuase it would open the floodgates to challenges in every case. So they set the bar almost impossably high – and almost nobody clears it.

In the Second Circuit, a defendant who cooperated in a seperate fraud case had the goverment file a Rule 35(b) motion on his behalf. The district court denied the motion becuase the defendant had already recieved cooperation credit in another case and had lied while on presentencing release. The court of appeals upheld the denial. The rule gives courts discretion, and exercising that discretion isnt reversable error.

Spodek Law Group has seen courts deny motions even after the goverment filed them. The filing is not a gaurantee. Its just permission to ask. The answer can still be no.

Heres were the system reveals itself. You cant appeal the goverments refusal to file. You cant appeal the courts decision to deny. You have no legal right to any particular outcome. Every step depends on discretion exercised by people who dont have to explain themselves to you.

The Personel Change That Sinks Motions

Heres a hidden connection that nobody mentions in cooperation discussions. The prosecutor who promised to “remember your help” might not be the prosecutor who decides weather to file your motion.

Federal prosecutors change offices. They get promoted. They leave for private practice. They retire. They get transferred to different divisions. They take on supervisiory roles and hand off there caseloads. The person you cooperated with might not be there a year later when its time for your motion.

This happens more often then you’d think. The average tenure in a US Attorneys office is just a few years for many prosecutors. Some stay longer, but many move on. And when they leave, there institutional memory leaves with them. The next prosecutor gets a file. Reads the notes. Dosent have the same context or relationship.

What happens then? Your new prosecutor inherits your file. Dosent know you. Wasnt there when you testified. Has no personal stake in rewarding your cooperation. Reads your cooperation summary and decides its not worth a motion. Or forgets about your case entirely becuase they have there own caseload.

This isnt malice. Its just institutional reality. The relationship you built with one prosecutor dosent automaticaly transfer to the next one. And the “sole discretion” language in your plea agreement means the new prosecutor has no obligation to honor what the old one said.

Your lawyer should be documenting everything. Every meeting. Every piece of information provided. Every risk you took. Written confirmation of what you were told. Becuase when personel changes happen – and they will – that documentation is all you have.

What You Should Have Done Before Sentancing

If your reading this before sentancing, stop. Read this section carefully.

5K1.1 motions happen before sentancing. Rule 35(b) motions happen after. 5K1.1 gets you 52.6% average reduction. Rule 35(b) gets you 37.1%. Thats a 15-percentage-point difference. On a 10-year sentence, thats roughly 18 months of extra prison time if you wait.

Lets do the math more specificaly. Suppose your guideline range is 120 months. A 5K1.1 departure at 52.6% gets you down to about 57 months. A Rule 35(b) reduction at 37.1% from that 120-month sentence gets you to about 75 months. Thats an 18-month difference – a year and a half of your life – purely becuase of timing.

Why would anyone wait? Usually becuase they didnt understand the timing. Or becuase they thought there information would be more valuable later. Or becuase they were to scared to cooperate before there own case resolved. Or becuase nobody explained the math.

Some defendants think they can fight the case first and cooperate later if they lose. This is almost always a mistake. Once your convicted at trial, the goverment has less need for your cooperation. They already won without you. Your information is less valuable. And you’ve demonstrated that you were willing to put them through a trial – which dosent exactly build goodwill.

Heres what happens: defendant dosent want to cooperate yet. Thinks they can fight the case. Gets convicted. Now reality sets in. Now there ready to cooperate. But now its Rule 35 territory – less reduction, more uncertainty, government has less need for there information.

The decision about cooperation should happen before trial. Before plea. Before sentancing. Not after. Every day you wait makes your information less valuable and your potential reduction smaller.

Spodek Law Group has this conversation with clients regularly. Some listen. Some dont. The ones who dont often call back a year later asking about Rule 35 options – and the answer is usually not what they want to hear.

Reading Your Plea Agreement for Warning Signs

Want to know weather you’ll actualy get a Rule 35 motion? Read your plea agreement. Not what you remember. Not what your lawyer told you. The actual words on the page.

Look for: “the goverment will file.” Thats binding (rare).

Look for: “the goverment may file.” Thats discretionary (common).

Look for: “sole discretion.” Thats almost complete prosecutorial control (very common).

Look for: “upon a determination of substantial assistance.” Thats the goverment deciding weather your help counts (standard).

If your agreement says “may” and “sole discretion” and “substantial assistance determination,” you have almost no gauranteed protection. The goverment can decide your cooperation wasnt substantial. They can decline to file for any reason that isnt unconstitutional. You have no recourse.

Defendants sign these agreements thinking they mean something different then what they say. The words feel like promises. There not. There carefully drafted language designed to preserve government flexibility while extracting maximum cooperation.

Before you sign, understand exactly what your getting. After you sign, understand that the words control – not what you thought they meant.

One more warning about plea agreements. The goverment can sometimes add conditions after the agreement is signed. In one Fourth Circuit case, the goverment decided that the defendant’s cooperation had “deficiencies” and added new conditions before they would file the motion. The defendant argued this wasnt part of the original deal. The court disagreed. The “sole discretion” language meant the goverment could impose new requirements whenever it wanted.

This is the reality of Rule 35. The written rules favor the goverment. The unwritten practices favor the goverment. The judicial interpretation favors the goverment. Your only protection is understanding the system before you enter it – and having representation that knows how to maximize whatever leverage you have.

Call us at 212-300-5196. Spodek Law Group reviews cooperation agreements before clients sign them – becuase understanding your rights before you surrender them is the only way to protect yourself in this system.