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Escaping Mandatory Minimum Sentences, Part II: Substantial Assistance

This is a follow up to our prior blog relating to escaping mandatory minimum sentences and the Safety Valve. In this blog, we address an avenue to escape mandatory minimums that is more familiar with criminal defendants and the public at large: substantial assistance

What is a Mandatory Minimum Sentence?

We discussed mandatory minimum sentences in Part I of this blog series. However, suffice it to say that mandatory minimum sentences are quite literally mandatory sentences set by statute. Ordinarily, the sentencing judge has discretion when it comes to sentencing, but statutory mandatory minimum sentences partially remove that discretion, and a judge cannot sentence a defendant to any term of imprisonment lower than provided by the statute. 

What is Substantial Assistance? 

A defendant provides “substantial assistance” when he/she provides information that is helpful in an investigation and/or prosecution of another person. This can happen in one of many ways – simply providing information in a single proffer meeting, going undercover, having multiple debriefing meetings with prosecutors, and/or testifying in trial or in front of a grand jury. 

How Does a Defendant Receive a Benefit from Substantial Assistance? 

Rendering substantial assistance can result in a sentence reduction and/or prevent a defendant from being subject to a mandatory minimum sentence. This generally happens in one of two ways – a §5K1.1 Motion or a Rule 35(B) Motion. 

§ 5K1.1 Motions and 18 U.S.C. § 3553(e)

A § 5K1.1 Motion is also sometimes called a “§5K Motion”. It is a motion filed by the federal prosecutor before sentencing under the authority granted by § 5K1.1 of the United States Sentencing Guidelines. Essentially, the motion is asking the Court to grant the defendant a “downward departure” from the Guidelines, or the sentence the defendant would otherwise be subject to.  

While a §5K Motion will permit a court to reduce a defendant’s sentence, it alone will not permit a court to sentence a defendant below the relevant mandatory minimums. Instead, the government must also file a motion under § 18 U.S.C. § 3553(e) to do so. This additional step – the § 3553(e) Motion – should never be overlooked by defense counsel. 

Rule 35 Motions 

Rule 35 Motions are similar to 5K Motions but are filed after a defendant has been sentenced. Sometimes the government would rather take this approach instead of a 5K Motion because they feel additional cooperation is needed after sentencing to be of any benefit to the Government. 

When the court is acting under Rule 35, it may reduce a sentence to a level below the mandatory minimums without a separate motion under § 3553(e) – a key distinction from §5K Motions. 

How an Attorney Can Help

Having an experienced attorney can help navigate your options when facing lengthy sentences and can ensure you explore every potential avenue to mitigate your exposure and limit any potential jail sentence.

Moreover, there are times where the Government never files a promised Rule 35 Motion. If a defendant believes he/she provided substantial assistance and has not been given the promised “reduction”, an attorney can help gather information necessary to convince the prosecutor that any assistance given was “substantial” and to ultimately file the Rule 35 Motion. 

In any event, it is important to have counsel familiar with the federal system when facing federal charges. Reach out today for a free consultation. 

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