Rule 35 vs. 5K1.1: Which Motion Is Right for My Case??

Section 5K1.1 of the U.S. Sentencing Guidelines applies when the assistance is credited at the original sentencing. Federal Rule of Criminal Procedure 35(b) governs substantial-assistance reductions after sentencing.

In either case, your substantial-assistance reductions are subject to the same general requirements: (i) substantial assistance must be shown, (ii) the government must move for the substantial-assistance credit before it becomes available, and (iii) the sentencing judge must determine whether, and if so, how much to reduce your sentence.

Unlike Federal Rule of Criminal Procedure 35(b), U.S.S.G. § 5K1.1 is a “policy statement.” While generally binding, substantial-assistance policy statements only govern the underlying substantive requirements for reductions; they do not govern procedural requirements. Thus, to receive a substantial-assistance reduction under the Guidelines, you must still satisfy federal procedural requirements (i.e., by meeting all applicable statutory deadlines and requirements).

Under either Rule 35(b) or Section 5K1.1, substantial assistance must involve information about the investigation or prosecution of another person, entity, or corporation. With that said, the definition of substantial assistance is incredibly broad, and it can include (among many other examples) a full confession, an offer to confess, information that allows a federal authority to pursue an investigative lead, or an offer to cooperate with the government in a controlled operation.

A substantial-assistance reduction is fundamentally different from an acceptance-of-responsibility reduction. While substantial assistance typically requires cooperation against others, acceptance of responsibility is based on your own actions, specifically, your acknowledgment of guilt and your sincere remorse. However, the two reductions are not mutually exclusive, and in many cases, defendants are eligible for both of the reductions.

Should I Wait for Sentencing or Seek Rule 35 Later?

Federal Rule of Criminal Procedure 35(b) provides for substantial-assistance reductions after sentencing in two separate scenarios: (i) Rule 35(b)(1), which covers a government motion made within one year of sentencing, and (ii) Rule 35(b)(2), which covers a government motion made more than one year after sentencing. As the statute explains:

“35. Correcting or Reducing a Sentence.

. ..

(b) Substantial Assistance. The government may move to reduce a sentence for substantial assistance.

(1) Motion Within One Year. The government may move to reduce a sentence within one year after the sentencing date.

(2) Motion After One Year. The government may move to reduce a sentence more than one year after sentencing only if it can demonstrate that:

(A) information not known to the defendant until one year or more after sentencing;

(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or

(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.

(3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant's presentence assistance.”

Does Receiving Section 5K1.1 Relief Bar Rule 35(b) Reductions?

Generally, a defendants’ receipt of Section 5K1.1 relief will not bar a Rule 35(b) motion. “Defendants are eligible for additional Rule 35(b) relief if they have additional valuable assistance to provide the government,” and “a defendant’s acceptance of responsibility should not be treated as acceptance of a substantial assistance credit.”

While the federal sentencing rules do not specifically prevent a defendant from receiving both Section 5K1.1 and Rule 35(b) relief, it will be very difficult (if not impossible) to get a Rule 35(b) reduction when the only thing you have to offer is the information you provided for sentencing. Rule 35(b) is designed to reward “information known only after sentencing.” Even if it does not bar pre-sentencing assistance under Rule 35(b)(3), a Rule 35(b) reduction will still only be granted when defendants provide “additional valuable assistance.” Thus, while receiving a substantial assistance credit at sentencing will not bar Rule 35(b) relief in the future, it will be extremely difficult to seek a Rule 35(b) reduction without presenting the sentencing judge with new evidence that justifies a reduction.

How Does the Court Determine the Amount of the Reduction?

U.S.S.G. § 5K1.1 also lists some factors that sentencing judges may consider when determining whether (or how much) to reduce a defendant’s sentence. According to the Guidelines:

“The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:

(1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered;

(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;

(3) the nature and extent of the defendant's assistance;

(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;

(5) the timeliness of the defendant's assistance.”

Can either motion reduce a mandatory minimum sentence?

Neither Rule 35(b) nor Section 5K1.1 prescribes a particular percentage reduction. The amount of a defendant’s substantial-assistance reduction depends on the specific facts at hand. However, with respect to mandatory minimum sentences, the distinction between the two is far more meaningful. Under the federal sentencing rules:

“35. Correcting or Reducing a Sentence.

. ..

(b) Substantial Assistance. The government may move to reduce a sentence for substantial assistance.

. ..

(4) Reduction Below Statutory Mandatory Minimum. . .. The court may sentence the defendant to a term of imprisonment below a statutory mandatory minimum.”

While Rule 35(b) relief is available even in the face of a statutory mandatory minimum, Section 5K1.1 relief is not. A substantial assistance reduction under Section 5K1.1 does not authorize sentencing judges to sentence below the mandatory minimum. To unlock authority for sentencing below a mandatory minimum, the government must seek relief pursuant to 18 U.S.C. § 3553(e), i.e., in addition to pursuing a Section 5K1.1 reduction.

While Section 3553(e) is powerful, it is also very limited. Specifically, it only unlocks authority for a sentencing judge to impose a sentence below a statutory mandatory minimum “so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” The authority granted by Section 3553(e) applies only to a reduction that reflects the defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense, and it is available only upon motion of the Government.

If you have to cooperate with the government to avoid a mandatory minimum sentence, it is critical to remember that substantial assistance offers a way to reduce your sentence, but it does not offer a way to get rid of criminal charges or have yourself acquitted of all charges. Instead, substantial assistance credits you for the value you provide to the federal government. If you provide substantial assistance, the government will seek a reduction in your sentence (which may include a reduction to below a mandatory minimum). However, the fact that you have provided substantial assistance does not mean that you should get off the hook entirely. At the end of the day, substantial assistance helps ensure that defendants are held accountable for their actions while still recognizing their valuable contribution to the government’s efforts.

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

What can I do if prosecutors refuse to file a substantial-assistance motion?

If you are under investigation for a federal crime and are prepared to cooperate with the government, it is imperative that you have a federal defense lawyer on your side. In many cases, your lawyer will be able to negotiate a favorable outcome prior to you being charged with a federal crime. In other cases, you may need to negotiate your cooperation with the government as a strategy in order to avoid criminal charges. If you are reluctant to cooperatively provide the government with information, it is up to you and your lawyer to make the determination that cooperation is in your best interest.

Is there a way to force prosecutors to file substantial-assistance motions?

In many cases, prosecutors will be reluctant to file a substantial-assistance motion. Whether they will be compelled to do so depends on the language of the agreement. However, defendants’ can argue they are entitled to a Rule 35(b) or Section 5K1.1 motion. While Wade v. United States prohibits judges from reviewing prosecutors’ exercise of discretion absent a showing that the refusal to seek a sentence reduction results from an unconstitutional motive, this does not preclude defendants from proving “that there exists a breach of an enforceable contractual obligation to seek a substantive assistance reduction in sentencing.”

A common feature of cooperation agreements is that they only require the prosecutor to seek a substantial assistance reduction if the defendant’s cooperation is otherwise “acceptable.” As a result, if the government determines that your cooperation was not acceptable, it will generally not be required to seek a sentence reduction on your behalf. However, if you have a substantial argument that the government’s refusal to seek a sentence reduction constitutes a breach of your agreement, the court will take the matter seriously. With that said, you will need to meet a substantial threshold to seek discovery or a hearing regarding the government’s refusal.

How do I show an unconstitutional motive in a Wade claim?

Under Rule 11(c)(1) of the Federal Rules of Criminal Procedure, federal judges are expressly prohibited from participating in plea discussions. This prevents judges from obtaining information about the terms of a plea deal prior to its public disclosure. When seeking to challenge a prosecutor’s refusal to seek a sentence reduction, defendants must present a substantial argument that a substantial assistance credit should have been filed. This requires a substantial threshold showing that the government’s refusal was based on an unconstitutional motive, such as the defendant’s race or religion. A claim that the defendant merely provided substantial assistance, or a generalized allegation of improper motive, is not enough to obtain relief, discovery, or an evidentiary hearing.

Can law enforcement agents file a Rule 35 or Section 5K1.1 motion?

No. Law enforcement agents cannot file Rule 35 or Section 5K1.1 motions. These motions must come from federal prosecutors. While agents can advise prosecutors on a defendant’s cooperation, they cannot make the determination.

What can Rule 35 change after I am sentenced?

A Rule 35(b) substantial assistance reduction that results in a reduction in the period of imprisonment does not necessarily result in a reduction in the period of supervised release. Supervised release terms are addressed in 18 U.S.C. § 3583, which states, in pertinent part:

“3583. Inclusion of a term of supervised release after imprisonment.

. ..

(e) Modification of Conditions or Revocation. The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)

(1) terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice;”

The fact that you have already served one completed year of supervised release is insufficient to obtain early termination of your term of supervised release. In order to obtain an early termination, you must show that: (i) you have completed at least one year of your term of supervised release, and (ii) early termination is warranted by your conduct and the interest of justice.

As stated above, Rule 35(a) cannot be used to reward a defendant’s substantial assistance. Instead, Rule 35(a) allows for the correction of clear errors and omissions in sentencing with a tight 14-day time limit.

A Rule 35(b) proceeding is a modification proceeding rather than a resentencing proceeding. When a court entertains a Rule 35(b) motion, the sentencing judge determines whether the defendant is entitled to a sentence reduction based on the facts at hand. The judge then determines the size of the reduction and adjusts the sentence accordingly.

Generally, all criminal proceedings must take place in the defendant’s presence. However, Rule 43(b)(4) provides a narrow exception for Rule 35 proceedings. As a result, Rule 35 motions may be granted or denied without the defendant’s presence.

A sentencing judge must affirmatively grant the government’s Rule 35 motion in order to reduce a defendant’s sentence. While a judge can grant the motion to hear the substance, it does not mean that the judge will grant the requested reduction. Even if the court grants the motion and determines that the defendant is entitled to a sentence reduction, the judge has broad discretion to determine whether to grant the government’s recommended reduction or reduce the sentence further.

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.