Cooperation With the Federal Government

Cooperating with the Federal Government may provide a federal criminal defendant with the potential of receiving a reduced mandatory minimum sentence. Substantial assistance to the prosecution is a form of credit that is usually received via Rule 35 of the Federal Rules of Criminal Procedure, a motion filed by the United States Attorney’s Office . A criminal defendant can also receive a reduction via Section 5K1.1 of the US Sentencing guidelines, also known as a “Safety Valve” provision. If a federal judge invokes the safety valve provision of 18 U.S.C. § 3553(e), the judge also has discretion to disregard mandatory minimum requirements at sentencing.

For example, consider a person who falls under the guideline range of a sentence that is between 87 to 108 months for a crime such as Transportation for Illegal Sexual Activity under 18 U.S.C Section 2421. This crime may require a mandatory minimum of 120 months (or 10 years). However, if the defendant qualifies for safety valve assistance, the guideline range could be lowered to 70 to 87 months on the basis of cooperation with the federal government. The judge can grant this motion of a two level reduction, which may reduce the prison term by about 15%.

Another way the term can be reduced is after sentencing, via Rule 35. It has the same effect but the cooperation with the government continues after sentencing. The problem with Rule 35 is there is no guarantee that the U.S. Attorney’s office will later agree that cooperation was in fact substantial enough for a reduction in sentence.

A defense attorney can help persuade the U.S. Attorney’s office that cooperation merits that a Rule 35 motion be filed but the discretion remains with the U.S. Attorney’s Office. Why would a defendant choose to cooperate? In addition to the benefits of a sentence reduction (in our example it was about four years), a defendant may consider this decision based on the amount and strength of “substantial assistance” they can offer to the prosecution to earn cooperation points. A determination of whether or not they qualify for safety valve assistance is an analysis that must be made by counsel long before sentencing and the pre-sentence report is issued.

Walk Free Law attorneys may help craft these strategic calculations to wndure the best possible outcome. A defendant must also consider collateral consequences of how much cooperation is required, the impact on family, possible retribution from dangerous co-defendants such as gangs, drugs cartel or other organized crime.