18 U.S.C. §3553 — Pre-Sentencing Reductions

A sentence may be reduced under the federal sentencing statute, 18 U.S.C. §3553, which sets out the factors that a federal judge must consider in sentencing a defendant. These include the kind and range of sentencing available, aggravating and mitigating factors, and other factors set out in the U.S. Sentencing Commission Guidelines. However, some deviations from the guidelines are specifically allowed. These exceptions include circumstances in which a defendant provides assistance to the government.

Substantial Assistance as a Mitigating Factor in Sex-Crime Sentences

In the context of sentencing a person convicted of a sex crime, the sentencing statute specifically provides that the court may, upon motion of the government, take into consideration “that the defendant has provided substantial assistance in the investigation or prosecution of another person” and that the assistance “establishe[s] a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.” 18 U.S.C. §3553(b)(2)(A)(iii). Thus, assisting a prosecutor may be a mitigating circumstance for a sex crime, but a court may take it into account only if the government files a motion to have the circumstance considered.

Providing Information to the Government and Federal Drug-Offense Sentences

Another provision of 18 U.S.C §3553 makes cooperation with the government a factor in setting a sentence. For certain federal drug offenses, the court may impose a sentence without regard to statutory minimum sentences if the defendant, no later than the sentencing hearing, provides the government with “all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” The information does not have to provide “substantial assistance,” and this part of the statute does not require a motion by the prosecutor. 18 U.S.C. §3553(f)(5).

Rather than being a mitigating factor, as for a sex crime, providing “all information and evidence” allows the court to sentence a defendant below the statutory minimum. Whether the defendant has provided all information and evidence he or she has is up to the court. Getting the defendant’s cooperation in front of the judge requires action by the prosecutor or by the defendant’s counsel.

This section also provides that information disclosed by a defendant may not be used to enhance the sentence of the defendant unless the information relates to a violent offense. The other provisions of 18 U.S.C. §3553 regarding deviation from the standard sentencing guidelines do not provide this protection.

Substantial Assistance and Sentencing Below the Statutory Mandatory Minimum Sentence

A defendant’s substantial assistance may be more than a mitigating factor. Some crimes have mandatory minimum sentences set by statute. A defendant may be sentenced below the mandatory minimum if (a) the defendant provides “substantial assistance” to the government in the investigation or prosecution of another person or persons, (b) the government files a motion to have the sentence reduced, and (c) the court exercises its discretion to do so. 18 U.S.C. §3553(e). The statute says that the court “may” reduce the sentence; it does not require the court to do so.

The sentence reduction can be significant or it can be minimal; it is within the judge’s discretion, and the judge is not required to reduce the sentence by the amount suggested by the prosecutor in the motion.

The court may make its own evaluation, separate from that of the government’s, of how substantial the defendant’s assistance was. The court is not bound by the prosecutor’s determination.

  1. 18 U.S.C. §3553 — Pre-Sentencing Reductions
  2. U.S. Sentencing Commission Guideline §5K1.1 — Pre-Sentence Motion
  3. Federal Rule of Criminal Procedure 35(b) — Post-Sentencing Motion
  4. Substantial Assistance
  5. Words of Caution and the Need for Experienced Counsel

U.S. Sentencing Commission Guideline §5K1.1 — Pre-Sentence Motion

In addition to 18 U.S.C. §3553, §5K1.1 of the U.S. Sentencing Commission Guidelines allows for consideration of any substantial assistance provided by a defendant before sentencing. The government may file a pre-sentencing motion to reduce a sentence based on such assistance, and §5K1.1 allows a court to deviate from the sentencing guidelines in setting the sentence. This is similar to the ability of the court to reduce a sentence under §3553(e). However, §3553(e) allows for reduction of a sentence below the statutory minimum while 5K1.1 allows only for deviation from sentencing guidelines.

In exercising its discretion to reduce the sentence, the court takes the following into consideration:

The most important factors are the significance and usefulness of the information provided. If the defendant provides information that isn’t or can’t be used to investigate or prosecute someone, the information is not useful and a prosecutor will not file a §5K1.1 motion, or, if the government does file, the court will likely deny it.

The court also considers the completeness of the information provided; that is, whether the defendant gave some information but not all that he or she knows. Holding back information reduces and in some cases negates the effectiveness of a §5K1.1 motion.

Finally, the timeliness of the assistance makes a difference. If a defendant knew of the information long before providing it to the prosecutor, the court will be less likely to reduce the sentence or will reduce it less than if the defendant had provided the information earlier.

The reason that a defendant is entitled to deviation from the sentencing guidelines is that he or she provided relevant information that the government used or can use in the successful investigation or prosecution of another person. Prosecutors want convictions. The defendant’s best interests in terms of sentencing are served by timely providing all the significant, useful evidence known to him or her prior to sentencing or by testifying against another person.

  1. 18 U.S.C. §3553 — Pre-Sentencing Reductions
  2. U.S. Sentencing Commission Guideline §5K1.1 — Pre-Sentence Motion
  3. Federal Rule of Criminal Procedure 35(b) — Post-Sentencing Motion
  4. Substantial Assistance
  5. Words of Caution and the Need for Experienced Counsel

Federal Rule of Criminal Procedure 35(b) — Post-Sentencing Motion

Federal Rule of Criminal Procedure 35(b) allows a prosecutor to file a motion with the court to reduce the defendant’s sentence because of substantial assistance provided after the defendant was sentenced. Depending on when the motion is made, the court may reduce a defendant’s sentence under the following circumstances:

Guideline §15K1.1 and Rule 35(b) are similar in that both allow the government to file a motion with the court to reduce a defendant’s sentence because the defendant provided substantial information useful to the investigation or prosecution of another person. The main difference is the timing: a §15K1.1 motion is made prior to sentencing and a Rule 35(b) motion is made after sentencing.

Prosecutors and courts prefer that a defendant provide information prior to sentencing, and §15K1.1 motions usually result in greater reductions than Rule 35(b) motions. The earlier the defendant provides the information, the more relevant it may be in an investigation or prosecution, the more likely the prosecutor is to file a motion to reduce a sentence, and the more likely a court is to make a significant reduction.

Generally, a 35(b) motion does not give the court a second shot at sentencing a defendant or take factors other than the defendant’s provision of information into account. However, some federal districts have held that a 35(b) motion does allow a court to use general sentencing factors in deciding whether to reduce the sentence and how much the sentence should be reduced. In some of those cases, courts have used the sentencing guidelines to decrease the reduction from what the prosecutor recommends.

A defendant may receive both a §15K1.1 reduction and a 35(b) reduction if he or she provides information before sentencing and after sentencing. However, if the defendant withheld information from the government just to obtain two reductions, the prosecutor is unlikely to file a 35(b) motion and the court is even more unlikely to grant it. A 35(b) motion comes into play after sentencing when the defendant learns of the information after sentencing or when he or she learns that the information is useful.

A defendant must be afforded a chance to respond to a 35(b) motion, and the amount his or her sentence is reduced is appealable.

  1. 18 U.S.C. §3553 — Pre-Sentencing Reductions
  2. U.S. Sentencing Commission Guideline §5K1.1 — Pre-Sentence Motion
  3. Federal Rule of Criminal Procedure 35(b) — Post-Sentencing Motion
  4. Substantial Assistance
  5. Words of Caution and the Need for Experienced Counsel

Substantial Assistance

Rule 35(b), §3553(b) and (e), and §5K1.1 all require the defendant to provide “substantial assistance” in the investigation or prosecution of another person. Substantial assistance is not defined in the criminal rule, the statute, or the sentencing guidelines, and what counts as substantial assistance varies from jurisdiction to jurisdiction; that is, what is considered substantial by one prosecutor’s office may not be considered substantial by another. A defendant has little control over whether a prosecutor deems the information substantial.

Testifying against another person is almost universally accepted as substantial assistance, but providing information is more difficult to classify. Whether information is substantial depends on the detailed nature of the information, the amount of information provided, the reliability of the information (the government’s ability to verify the information), and the timeliness of the information given (the earlier the better). If information from a defendant actually helps the government obtain other critical information or evidence in the course of an investigation or leads to evidence that the government can use in prosecuting a person, the information will likely be deemed substantial. The less useful the information, the less likely the government will be to file a §3553(b) and (e), §5K1.1, or 35(b) motion.

  1. 18 U.S.C. §3553 — Pre-Sentencing Reductions
  2. U.S. Sentencing Commission Guideline §5K1.1 — Pre-Sentence Motion
  3. Federal Rule of Criminal Procedure 35(b) — Post-Sentencing Motion
  4. Substantial Assistance
  5. Words of Caution and the Need for Experienced Counsel

Words of Caution and the Need for Experienced Counsel

Providing information to the government in the hopes of obtaining a reduced sentence has its pitfalls. A defendant may put his or her safety on the line by providing information only to have the government deem it insubstantial or to fail to file a motion to reduce the sentence. Other factors limiting the value of providing the government information include the following:

Motions to reduce a sentence are ordinarily negotiated in a plea agreement between the defendant and the prosecutor. Whether the motion is filed, the amount of reduction requested in a motion, and whether the defendant will have the right to appeal the reduction are all factors that may be included in a plea agreement.

Additionally, a defendant has the opportunity to respond to the government’s 35(b) motion if the motion does not adequately describe the usefulness of the information provided or if the prosecutor requests only a modest reduction in the sentence. This response is important to obtaining the appropriate sentence reduction for the information provided.

For all these reasons, having an expert criminal-law attorney handle negotiations on reducing a sentence for the provision of substantial assistance is critical. Getting the best sentence reduction for providing substantial assistance requires experience and skill, and a defendant should consult an attorney prior to assisting the government.