James H. Feldman, Jr., Attorney - 610-649-8200

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Rule 35 and § 5K1.1 Motions

One way for federal defendants to increase the likelihood that they will receive lower sentences or to have previously-imposed sentences reduced is by "cooperating" with the government. When a defendant "cooperates," it means that he or she helps the government investigate or prosecute someone else. There are two ways that "cooperating" can result in a lower sentence. If a defendant cooperates before sentencing, the prosecutor can file a motion pursuant to § 5K1.1 of the United States Sentencing Guidelines (also known as a "5K" motion). If a defendant cooperates after sentencing, the prosecutor can file a Rule 35 motion. "Cooperating" does not guarantee that a prosecutor will file a § 5K1.1 or Rule 35 motion. Before a prosecutor will file a motion, the cooperation must amount to "substantial assistance."

Since 1989, the focus of my criminal practice has been federal plea negotiations and post conviction defense – including helping my clients receive and benefit from § 5K1.1 and Rule 35 motions. Because I handle only a few cases at a time, I devote the time it takes to do my best for each client. And because I have a highly focused practice, I am able to offer the quality of work normally associated with big firms, but with the personal attention and affordability expected from a small firm.

If you or a loved one needs an attorney who regularly represents individuals who cooperate with the government, please call (610) 649-8200, or click here to send an e-mail to discuss how I can help. My office is located in suburban Philadelphia, but I handle federal criminal cases throughout the United States.

Frequently Asked Questions

What is a § 5K1.1 motion?

A "motion" is a request to a court to do something. A "5K" motion is motion filed by a prosecutor under the authority granted by § 5K1.1 of the United States Sentencing Guidelines ("guidelines"). It asks a sentencing court to "depart downward" under the guidelines based on "substantial assistance" provided by the defendant. As part of the sentencing process, a court must consider the range of sentences recommended by the guidelines. When a court "departs downward," it means that the guidelines will recommend a shorter range of sentences. A government § 5K1.1 motion will normally result in a shorter sentence.

What is a Rule 35 motion?

A Rule 35 motion is a motion filed by a prosecutor under the authority granted by Rule 35(b) of the Federal Rules of Criminal Procedure. It asks a court to reduce a previously-imposed sentence based on "substantial assistance" by a defendant provided after sentencing.

Who can file a § 5K1.1 or Rule 35 motion?

Only the prosecutor in a defendant's federal case may file a § 5K1.1 or Rule 35 motion.

What is substantial assistance?

What is “substantial” in one prosecutor’s office may not be “substantial” in another office. All prosecutors consider testifying against another person to be “substantial.” Some prosecutors do not consider simply providing information to be “substantial,” unless it leads to something specific, such as an arrest, indictment, or conviction.

Does a § 5K1.1 or Rule 35 motion authorize a court to sentence below a mandatory minimum?

Some offenses require a court to impose a sentence that is a least a certain number of years. For example, if a five-year mandatory minimum applies, a court must impose a sentence that is at least five years. A substantial assistance departure motion can give a court the power to impose a sentence as low as probation – but only if the prosecutor gives the court that power under the authority granted it by § 3553(e) of Title 18 of the United States Code.

When the prosecution files a §5K1.1 or Rule 35 motion, how low can a court's sentence go?

Although prosecutors filing § 5K1.1 and Rule 35 motions normally recommend specific sentences, once a prosecutor files such a motion, the court is free to impose whatever sentence it believes is appropriate. If a mandatory minimum is involved, a court may not impose a sentence below the mandatory minimum unless the prosecutor's motion gives the court such power.

What are the risks of cooperating?

There are several – although an experienced defense attorney can help minimize them. The most serious risk is to the safety of the defendant and the defendant's family. Other inmates, co-defendants, or the people against whom the defendant is cooperating sometimes learn of the cooperation, or suspect it. When this happens, they sometimes threaten to harm the defendant or his family. The risk is greater for inmates in higher-security institutions (which house more violent offenders). Although threats are not uncommon, it is my understanding that few cooperators or their families are actually harmed as a result of cooperation. There are several things a defense attorney can do to minimize this risk. For example, if the defendant is incarcerated, defense counsel can make sure that visits by government agents are not seen by other inmates.

The second risk is that a defendant could be prosecuted for additional crimes that he reveals as part of cooperation. A "proffer agreement" with the government can protect a defendant from this risk.

Can a defendant benefit from someone else's cooperation?

Sometimes a friend or family-member of a defendant volunteers to cooperate with the prosecutor to benefit a particular defendant. This is called "third-party cooperation." Some prosecutor’s offices have a policy not to allow third-party cooperation; others permit it.

Link to Article Discussing Rule 35 Motions

“Federal Criminal Appeals and Post-Conviction Relief: Getting the Most Out of Limited Opportunities for Relief.” From Navigating Post-Conviction Appeals: Leading Lawyers on Attempting to Obtain Post-Conviction Relief and Managing Client Expectations, published in 2015 by Thomson Reuters/Aspatore. See page 15 for a discussion of Rule 35(b) motions.


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