Will Cooperating With the Feds Reduce My Sentence??

In most cases, yes, although substantial assistance reductions can come in many forms. To reduce a defendant’s sentence for providing assistance to the government, the prosecuting attorney must file a formal motion with the court under U.S. Sentencing Guidelines Section 5K1.1. Under this section, a prosecutor can file a motion based on substantial assistance that allows for a substantial assistance “departure,” or a “downward departure.”

According to federal sentencing commission data from 2019, only approximately 9 percent of all sentenced federal defendants received a §5K1.1 substantial assistance departure. However, federal probation, pretrial services, and sentencing commission data from 2019 show that when defendants receive a downward departure based on the prosecutor’s motion for substantial assistance, they will receive a reduction that is close to half off the guideline minimum sentence.

Cooperation agreements rarely guarantee that the prosecutor will file a motion for substantial assistance with the court. Many prosecutors argue that they must wait until a defendant has fully performed under the agreement before deciding whether to request a substantial assistance departure. Cooperation agreements with the following provisions are generally ineffective:

• “The government will file the §5K1.1 motion only in cases where you have provided the government with substantial assistance.”
• “The government will file a §5K1.1 motion at the discretion of the prosecutor.”

3. How Much of a Sentence Reduction Can Cooperation Gain?

While cooperation may decrease your sentence, there are various ways for defendants to seek a reduced sentence when facing criminal charges. The types of assistance that may qualify as “substantial assistance” are generally given as:

• “providing information to help the investigation, identification, or prosecution of other persons;”
• “providing information that has the potential to aid in further investigations;”
• “receiving information about other persons who have not been charged, and who have the potential to be indicted;” and,
• “providing information about a substantial amount of other criminal activity.”

4. What Factors Does the Court Consider When Deciding Whether to Grant a 5K1.1 Motion or a Rule 35(b) Reduction?

Under both §5K1.1 and Rule 35(b), the judge is given the government’s substantial-assistance recommendation, and then a detailed explanation of the factual basis for the recommendation. The judge can then decide how to rule based on five relevant factors:

• the usefulness of the information the defendant provided;
• the defendant’s truthfulness in his or her disclosures;
• the extent to which the defendant cooperated;
• the degree of danger the defendant faced in cooperating with the government; and,
• the timeliness of the defendant’s decision to cooperate.

5. What is the Difference Between a §5K1.1 Downward Departure and a Rule 35(b) Motion to Reduce a Sentence?

The §5K1.1 downward departure is typically a motion by the prosecuting attorney filed before sentencing, where the judge then rules in light of the §5K1.1 factors mentioned above. A Rule 35(b) reduction, however, is for information provided after a criminal sentence has been imposed. A Rule 35(b) motion must be filed within one year after sentencing in the district court that imposed the sentence. If a defendant’s information became useful after one year, a Rule 35(b)(2) motion can still be filed. Under Rule 35(b)(4), the judge has the authority to sentence below the statutory minimum when the government recommends that the defendant’s sentence be reduced due to substantial assistance.

6. How Important is Timeliness When Making a Decision to Cooperate with the Government?

In most criminal cases, timeliness is extremely important when facing a federal criminal charge. The prosecutors of a case will often decide who to offer a cooperation agreement (or, what the “best” cooperation agreement looks like) based on who came forward first. This is because the first cooperator often has the most information, and because future cooperators tend to merely confirm what that first cooperator told them.

7. How Do I Accept a Cooperation Agreement?

For most federal criminal defendants, federal prosecutors offer written cooperation agreements in a letter from the U.S. Attorney’s Office to the district court. However, these agreements can come in different forms in different districts, and prosecutors might send a handwritten proposal on the surface. If a cooperation agreement is offered, a federal criminal defense attorney will explain the advantages and disadvantages of the agreement, then discuss the terms of the agreement with the prosecuting attorney.

8. What is Rule 35(a)?

Rule 35(a) allows the court to correct a sentence that resulted from arithmetical, technical, or other clear error. This includes any clerical errors, like arithmetic errors or inadvertent omissions, within 14 days of sentencing. After 14 days have passed, the court no longer has authority to act under Rule 35(a), although purely clerical errors may still be corrected at any time under Rule 36. Rule 35(a) motions do not reduce a defendant’s criminal sentence, they simply correct clerical errors.

9. Can Cooperation Help Me Get Below a Federal Mandatory Minimum Sentence?

In Melendez v. United States, 518 U.S. 120, 125-26 (1996), the Supreme Court held, “the § 5K1.1 downward departure only allows for a reduction within the applicable guideline range, and not below the applicable mandatory minimum sentence.” In other words, a motion by the prosecuting attorney to substantially reduce a defendant’s sentence under § 5K1.1 is not enough to cut a defendant’s mandatory minimum sentence. To reduce a defendant’s sentence below a mandatory minimum, an 18 U.S.C. § 3553(e) motion is necessary. While an 18 U.S.C. § 3553(e) motion based on the prosecuting attorney’s recommendation of substantial assistance will generally be sufficient, a federal criminal judge cannot act independently to sentence below a mandatory minimum; they must grant the sentence reduction upon the prosecuting attorney’s recommendation.

In Wade v. United States, 504 U.S. 181, 188 (1992), the Supreme Court denied an evidentiary hearing to a single defendant who alleged they had “rendered substantial assistance and that, although the prosecutors’ motion only recommended a sentence within the guideline range, this was a factual misrepresentation of their assistance.” The Supreme Court clarified, “...the only question of substance at issue is whether there was any constitutional basis to deny the request for an evidentiary hearing . .. and a Rule 35(b) sentence reduction on the grounds of unconstitutional motive.” The district court declined to hold an evidentiary hearing, and the Supreme Court affirmed, holding that a defendant is entitled to a hearing only after making a substantial threshold showing that the government’s refusal to file a substantial-assistance motion rested on an unconstitutional motive.

10. What Happens If the Judge Does Not Find a Defendant’s Cooperation Substantial?

A common misconception about substantial assistance reduction is that prosecutors hold the keys, and that prosecutorial consent is required for a federal criminal judge to sentence below a sentencing guideline. While the prosecutor’s consent is required for a defendant to be sentenced below their mandatory minimum, this is different from their sentencing guidelines. This explains why prosecutors often use mandatory minimums as a tool to reduce a defendant’s chance for a Rule 35(b) reduction to be granted.

11. What Are Some of the Recent Changes to Federal Mandatory Minimum Sentences?

The First Step Act (signed on December 21, 2018) significantly reduced the federal government’s discretion in prosecuting those charged with crimes that carry mandatory minimum sentences. For instance, the First Step Act reduced the § 851 enhanced drug minimum from twenty years to fifteen years. Additionally, in federal criminal cases, defendants are now entitled to use the federal sentencing commission’s annual district tables to understand the potential outcome of their case. These tables indicate substantial differences in how various districts sentence defendants on a per-defendant basis.

12. Can I Seek a Sentence Reduction Below a Mandatory Minimum Sentence Without Testifying Against Anyone?

If you are eligible for “safety-valve” relief under 18 U.S.C. § 3553(f), you can seek a sentence reduction below your mandatory minimum sentence without testifying against anyone. The safety-valve relief is an alternative that can be used when cooperating with prosecutors would be too dangerous or a risk for retaliation. The key differences between cooperating and seeking a safety-valve reduction include:

• prosecutors’ consent is not needed;
• prosecutors’ recommendation is not required;
• the prosecuting attorney can’t stop the defendant from seeking the reduction;
• the defendant’s cooperation must be “truthful, complete, and correct” as opposed to “substantial”;
• and,
• the defendant does not need to testify.

In Pulsifer v. United States, 601 U.S. 124 (2024), the Supreme Court clarified that any one disqualifying item of criminal history would negate a defendant’s safety-valve eligibility. In fact, “It does not matter whether the court is comparing Pulsifer’s record to the statutory language or to the four-point threshold. In either case, Pulsifer’s prior record disqualifies him from the application of the safety valve.” This makes a defendant’s criminal history extremely important.

13. What Determines Safety Valve Eligibility?

There are five requirements that determine a defendant’s eligibility for safety-valve relief. As a criminal defense attorney, ensuring a defendant doesn’t get falsely disqualified is the first step in building their best defense. The factors are as follows:

• Section 3553(f)(1)(A): “The defendant’s criminal history does not include any crime for which the defendant was convicted . .. that would result in criminal history points of more than 4, excluding points that result from offenses that resulted in 1 point each.”
• Section 3553(f)(1)(B): the defendant does not have “a prior 3-point offense, as determined under the sentencing guidelines.”
• Section 3553(f)(1)(C): the defendant does not have “a prior 2-point violent offense, as determined under the sentencing guidelines.”
• Section 3553(f)(2): “the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense.”

14. Does a Rule 35(a) Reduction Exist for Defendants Who Are Eligible for Safety Valve Relief?

Not only can a defendant seek safety-valve relief under 18 U.S.C. § 3553(f), but eligible defendants can also seek a sentence reduction under U.S. Sentencing Guidelines §2D1.1(b)(18). This provision gives a two-level reduction to the offense level when a defendant is subject to a mandatory minimum under §2D1.1 or 2D1.2, and the defendant would not be subject to the mandatory minimum if the court applied the provisions of 18 U.S.C. § 3553(f) . .. and the defendant makes a timely, truthful, complete, and correct disclosure.

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

15. Can a Federal Judge Go Below the Sentencing Guidelines Without the Prosecuting Attorney’s Consent?

In 2005, the U.S. Supreme Court decided that the federal sentencing guidelines are advisory in nature in United States v. Booker. Because Booker made the guidelines advisory in every federal district, judges have the authority to vary below the sentencing guidelines. However, if a defendant wants a reduced sentence from the guidelines, a motion from the prosecutorial attorney is not necessary, and a prosecutor cannot block a defendant from seeking a lower sentence from the judge.

16. What Is the Difference Between a “Variance” and a “Departure”?

The U.S. sentencing guidelines allow for the sentencing range to be reduced in the form of either a variance or a departure. A variance is based on a judge’s determination of the relevant factors in 18 U.S.C. §3553(a), and a departure is based on specific provisions in the sentencing guidelines. A court cannot issue either a variance or a departure without properly computing a defendant’s sentencing guideline range.

17. Does This Mean the Sentencing Guidelines Do Not Matter for Federal Defendants?

Despite the fact that defendants can still receive a reduced sentence without the prosecutor’s consent, the federal sentencing guidelines still matter. In Gall v. United States (2007), the Supreme Court noted that when a district judge chooses to deviate from the sentencing guidelines, the appellate courts review the sentence’s validity on the grounds of “abuse of discretion.” This means that appellate courts must give deference to sentencing judges, as long as the sentencing judges’ determinations are supported by the facts. However, federal judges are still highly unlikely to grant a variance unless a defendant also presents arguments for a reduced sentence, meaning that federal sentencing guidelines still largely serve the function of protecting prosecuting attorneys.

18. What Percentage of Sentences Fall Within the Federal Sentencing Guidelines’ Range?

While federal prosecutors will often claim that the sentencing guidelines are definitive of the outcome of a case, Commission data indicates that fewer than half of all federal criminal sentences fall within a defendant’s calculated guideline range.

19. Can a Federal Judge Sentence Below the Guidelines to Help Avoid Sentencing Disparity?

Yes, under 18 U.S.C. §3553(a)(6), federal judges have the discretion to reduce a defendant’s sentence if it is necessary to avoid “unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” This means that if a co-defendant who has received a substantial assistance reduction gets a shorter sentence, the judge may also grant the other defendant a reduction to achieve parity.

20. What Information Can a Federal Judge Use to Consider Sentencing?

Under 18 U.S.C. §3661 and Federal Rule of Criminal Procedure 32(i)(4), federal judges are granted broad discretion in making sentencing decisions. As criminal defense attorneys, we frequently rely on this authority by presenting a “life story” or “sentencing memorandum” to the judge before a hearing. We can present evidence regarding our clients’ early lives, prior good character, family commitment, and employment or financial history.

21. Can a Defendant Speak to the Sentencing Judge Before His or Her Sentence Is Passed?

Under Rule 32(i)(4)(A)(ii), federal criminal defendants have a personal right to allocution, meaning they can speak directly to the judge before the judge passes sentence. This allows the judge to get a sense of who the defendant is as a person, rather than just seeing him or her as a name in a court transcript.

22. What are the Risks and Dangers of a Proffer Session?

• It could be a “trick”: A prosecutor might say, “Tell us the truth,” in hopes that the information you disclose will be a “gotcha” for a later perjury accusation.
• A proffer letter does not provide statutory immunity: A proffer letter is a contract between the defendant and the prosecuting attorney. It does not grant statutory immunity under 18 U.S.C. § 6002.
• Evidence that is traced from your proffer statements is admissible: Even if the proffer letter says your statement cannot be used, it can’t prevent the prosecutor from tracing evidence back to you from anything you disclosed in your proffer.
• An appellate judge might require a waiver of Federal Rule of Evidence 410: In United States v. Mezzanatto (1995), the U.S. Supreme Court held that prosecutors have the authority to require defendants to waive their Rule 410 protection.

23. What are the Risks and Dangers of a Cooperation Agreement?

• Obstruction of Justice: An unintentional misstatement during the cooperation process could subject a defendant to a two-level sentencing enhancement under U.S.S.G. § 3C1.1.
• Your Guilty Plea Remains Intact: A breach of a cooperation agreement frees the government from its contractual obligations, but your guilty plea remains valid.
• Your Appellate Waiver Remains Intact: Most cooperation plea agreements include an appellate waiver, meaning that if you breach your cooperation agreement, you will still be prohibited from challenging the guilty plea on appeal.
• You Could Lose the Sentencing Reduction: Under U.S.S.G. § 5K1.1, if the prosecuting attorney doesn’t file a substantial assistance motion based on a breach, the judge will not reduce your sentence.

24. What are the Risks and Dangers of Plea Agreements?

• The Prosecution May Break Its Bargain: The U.S. Supreme Court held in Santobello v. New York (1971) that if the government does not uphold its end of a plea agreement, the defendant is entitled to relief, and this may mean that the defendant is entitled to withdraw the plea.
• Sentencing Disparities: If a defendant wants to challenge a sentencing disparity under 18 U.S.C. § 3553(a)(6) and the prosecution doesn’t consent, the defendant may face a longer sentence than if they chose to accept a plea agreement and a lighter sentence.
• Loss of Appeal Rights: As mentioned above, plea agreements generally require the defendant to waive the right to appeal the case, even if an appellate court would likely have overturned the charges in the first place.

25. Can Federal Charges Be Dismissed Without Cooperating?

According to the U.S. Department of Justice’s Office of Inspector General’s 2018 report on federal criminal prosecutions, prosecutors dismiss their charges in about 8 percent of all federal cases. However, Federal Rule of Criminal Procedure 48(a) requires prosecutors to seek “the court’s leave” before they can dismiss an indictment. Consequently, it is rare for federal charges to be dismissed entirely without a motion by the federal court.

26. Can Federal Drug Minimums Be Avoided Without Cooperating?

In a federal drug case, prosecutors must file a 21 U.S.C. § 851 information to impose a mandatory minimum sentence based on the weight of the defendant’s drugs. If a defendant wants to avoid this, a criminal defense attorney will argue against filing this information. If prosecutors agree not to file this information, then they cannot seek a mandatory minimum sentence.

27. Can Defendants Avoid Mandatory Minimum Sentences Through Charge Bargaining?

If a defendant doesn’t want to cooperate, charge bargaining may be an option. This involves negotiations between the prosecuting attorney and the criminal defense attorney where the prosecutor agrees to substitute a different, lesser charge for the initial one. In order to bargain for a sentence that avoids a mandatory minimum, a prosecutor will typically require the defendant’s guilty plea to be filed.

28. What Percentage of Federal Criminal Cases Result in Plea Deals or Trials?

According to sentencing commission data, approximately 90 percent of federal defendants will plead guilty, about 90 percent without cooperating and roughly 8 to 10 percent with cooperating. This means that only about 2 percent of cases that result in a verdict in federal court go to trial. In most federal criminal prosecutions, a plea deal is the most likely outcome.

29. How Are Defendants’ Choices Evaluated When Facing Federal Charges?

As you consider your options when facing federal charges, make sure to include the risks of failing to resolve your criminal charges before trial as well. This includes anything from the risk of a bad outcome to the potential for sentencing disparity when compared to other defendants who pleaded guilty.

30. What is the Conviction Rate at Federal Criminal Trials?

According to DOJ data from 2018, the federal government achieved convictions in roughly 83 percent of criminal cases that resulted in a verdict. Thus, going to trial carries a high risk of guilt, regardless of the outcome of the plea bargaining negotiations.

31. Is it Better to Plead Guilty or Face a Trial in Federal Court?

Pleading guilty can reduce your sentencing range, but it depends on the case. A recent 2017 National Association of Criminal Defense Lawyers (NACDL) study indicates that defendants convicted at federal trials face significantly longer sentences, sometimes up to five times longer, compared to their counterparts who accepted plea deals.

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.