If you are convicted of a crime, either through a trial or by pleading guilty, the next step is sentencing.  States vary in their sentencing procedures. Virginia, for example, allows the jury to select the sentence after a jury trial.  By contrast, in federal court, as in most States, the sentence is selected by the judge.  You can read more about the sentencing process here.  Here we will discuss a specific, but vitally important, component of federal sentencing: sentencing reductions.

Cooperation with Federal Law Enforcement

The most significant source of sentencing reduction in federal criminal cases is through cooperation: specifically, cooperation with law enforcement, such as the FBI. Cooperation means providing information, and possibly testimony, about criminal activity. Sometimes cooperation can be more extensive, such as when a defendant agrees to act as a long-term informant in a criminal organization. The more extensive the cooperation, the greater the sentencing reduction that can be expected.

Cooperation can involve either criminal activity that the defendant has been charged with, or unrelated criminal activity that federal law enforcement is interested in. We have had many successful cases where our clients received substantial reductions in their sentences for cooperation.

Here are some of the important things to know about sentencing reductions through cooperation:

• The mechanics of cooperation: Rule 35 or Rule 5k1 motions. When a defendant cooperates with federal law enforcement, prosecutors can file what is called a Rule 35 motion (named after Federal Rule of Criminal Procedure 35), or Rule 5k1 motion (named after Sentencing Guidelines § 5K1.1).  These motions are the prosecutor’s way of asking the judge to reduce the defendant’s sentence. While the two motions accomplish the same objective, a Rule 5k1 motion is generally preferable to a Rule 35 motion. In a Rule 5k1 motion, the reduction occurs before sentencing. For defendants who are facing an otherwise low sentencing guidelines range, a Rule 5k1 motion makes it more likely that he or she will receive probation.
• Only federal prosecutors can file a Rule 35 or Rule 5k1 motion.  It is entirely within the prosecutor’s discretion to file a motion asking for a reduction of the defendant’s sentence, and the timing of such a motion. If the prosecutor decides that the cooperation provided was not helpful (or worse, was not true or accurate), he can refuse to file a motion, and there is nothing the defense attorney or the judge can do about it. Having an experienced attorney is important to evaluate whether the information you can provide will be of interest to the prosecutor, and possibly result in a sentence reduction.
• The agreement to file a Rule 35 or Rule 5k1 motion is rarely in writing.  For various reasons, prosecutors will rarely, if ever, commit to filing a Rule 35 or Rule 5k1 motion in writing. As a result, the defendant has to rely on the informal understandings that developed between the prosecutor and the defense attorney during negotiation.  Despite the lack of a written agreement, prosecutors will generally adhere to their end of the bargain, because they have an incentive to maintain their reputation as reliable, trustworthy individuals for cooperators in the future.
• The reduction in your sentence from cooperation can be substantial. In the Eastern District of Virginia, for example, it is not uncommon to receive up to a 50% reduction in the sentence for providing testimony.
• An experienced attorney can help you ensure that you receive appropriate credit for cooperation. In the federal system, once a prosecutor files a motion to reduce your sentence, it is up to the judge on how much of a reduction you will receive. Your attorney can argue for a greater reduction than the amount recommended by the prosecutor.  We have argued for, and been granted, higher reductions than the prosecutor’s recommendations where our clients provided valuable cooperation at considerable cost to themselves.

Reductions in the Sentencing Guidelines Range

In addition to cooperation, the Federal Sentencing Guidelines offers a number of important provisions that also reduce a defendant’s sentencing range.  Although the sentencing range is not binding on the judge, most judges consider the range to be important. Thus, it is always in a defendant’s best interest to start with the lowest sentencing range possible.

Here are some of the most common sentencing reductions possible under the Guidelines:

• Acceptance of Responsibility. The Sentencing Guidelines provide for a two to three point reduction for “acceptance of responsibility.”  Generally, this requires the defendant to plead guilty. In rare cases, judges may grant a reduction for acceptance of responsibility even where the defendant goes to trial.
• Mitigating Role. A defendant may be granted a two to four point reduction for a minor/minimal role in the criminal activity. In order to convince the Judge to grant a mitigating role adjustment, it is important to compare and contrast the defendant’s actions with those of co-defendants and show why the defendant is less culpable.
• Other Departure Provisions.  The Sentencing Guidelines has a list of other departure provisions, including a “catchall” provision for departures based on “any aggravating or mitigating circumstance” that is not adequately considered under the Guidelines.  Although rare, judges do occasionally depart under these provisions and impose a lower sentence on the defendant on account of factors such as: old age, family circumstances, physical or mental health, and others. An experienced attorney can identify potential factors for departure and present a persuasive argument to the judge on why your unique circumstances warrant a lower sentence.

Speak With An Experienced Attorney

If you are charged with a crime, or have been convicted of a crime, you should thoroughly discuss with your attorney potential ways in which your sentence can be reduced. Understanding sentencing reductions is important not only when you have already been convicted, but also helps you make the important decision of whether you should go to trial or plead guilty.

The attorneys at Burnham & Gorokhov, PLLC have frequently obtained successful results for our clients by obtaining sentences that are substantially lower than what the Guidelines range would suggest, and this is in part through our ability to identify the range of sentencing reductions that are available to our clients.

Please feel free to contact us today if you would like to discuss your case.