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Rule 35 Motion

Rule 35 Motion to Correct or Reduce a Sentence

If you've been convicted of a federal crime, the judge will impose a sentence based on your case's circumstances according to the United States Sentencing Guidelines. But that doesn't mean the sentence is set in stone.

Under Rule 35 of the Federal Rules of Criminal Procedure, there are certain situations in which the judge may adjust or reduce your sentence, even a year or more after your sentence begins.

Federal prosecutors may also file what's known as a "Rule 35 Motion to Reduce Sentence" in exchange for your cooperation in providing "substantial assistance" to prosecutors on other cases. Rule 35 is a pivotal legal provision that allows for the correction or reduction of a federal sentence under specific circumstances.

This rule aims to provide a mechanism to rectify errors, address mitigating factors that surface after a sentence has been imposed, and incentivize defendants to assist federal prosecutors on other cases.

After a federal criminal conviction, you will be sentenced according to the federal sentencing guidelines, which provide a sentencing range for federal judges to reference before imposing the sentence. This could range from no time in prison with probation to life in prison. In some of the most severe cases, the death penalty may even apply.

Thus, you will often want to seek a way to reduce your prison sentence. In many cases, a sentence can be reduced in a few different ways, including when you cooperate with the government in a related or unrelated criminal investigation.

This cooperation is known as “substantial assistance” sentencing reductions. They can be sought before sentencing or even after a prison sentence has begun. Notably, these sentence reductions can be significant, resulting in months or years off a prison sentence or avoiding jail time altogether.

The mechanism for reducing a federal prison sentence may differ depending on whether it was done before or after sentencing. A 5k motion usually occurs before sentencing, with a Rule 35(b) reduction occurring after sentencing.

What Are the Provisions of Rule 35?

Rule 35 allows for the correction or reduction of federal sentences under the following specific circumstances:

  • Within 14 days of sentencing: if a sentence resulted from an "arithmetical, technical, or other clear error.
  • Within one year of sentencing: if the defendant provides "substantial assistance in investigating or prosecuting another person.
  • After one year of sentencing: if the defendant's "substantial assistance" couldn't reasonably have been offered within the first year (e.g., the defendant didn't know the information until a year later, or the information did not prove helpful to the government until after a year).

Federal Rules of Criminal Procedure

Under Rule 35, Correcting or Reducing a Sentence in the Federal Rules of Criminal Procedure says,

“(a) Correcting Clear Error. Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear errors.

(b) Reducing a Sentence for Substantial Assistance.

(1) In General. Upon the government's motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.

(2) Later Motion. Upon the government's motion made more than one year after sentencing, the court may reduce a sentence if the defendant's substantial assistance involved:

(A) information not known to the defendant until one year or more after sentencing;

(B) information provided by the defendant to the government within one year of sentencing but which did not become useful to the government until more than one year after sentencing or

(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.

(3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant's presentence assistance.

(4) Below Statutory Minimum. When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.”

What Are Some Examples?

EXAMPLE 1: Jason has been convicted and sentenced to federal prison for involvement in a significant financial fraud scheme. A year after his sentencing, Jason comes across critical information about an unindicted co-conspirator's role in the same scheme.

He promptly shares this information with the government, leading to the co-conspirator's successful investigation and prosecution. Given Jason's substantial assistance, which was not known to him until one-year post-sentencing, the federal prosecutors can file a Rule 35 motion to reduce his sentence.

EXAMPLE 2: Gina is convicted of a federal drug-related offense and has just been sentenced. Upon review, the courts discovered a clear technical error in calculating her sentence, which resulted in a higher term of imprisonment than warranted by the guidelines.

The error is identified within 14 days of sentencing. The judge may correct Gina's sentence in this scenario due to the clear error discovered.

Sentence Reductions – Quick facts

There are some essential facts you should know about substantial assistance sentencing reductions, such as the following:

  • These sentencing reductions provide a reduced prison term even though someone has been convicted and sentenced under federal guidelines.
  • The reason for these reductions is to encourage cooperation between a convicted defendant and the government.
  • This is a valuable tool for the government to get evidence in other criminal cases from someone with no reason to offer information.
  • This is also a valuable tool for a convicted defendant to get out of prison before serving their minimum federal prison sentence.
  • After a judge hears the government's motion, they could depart from the sentencing guidelines maximum and minimum time range.
  • Sometimes, the federal judge can impose a lower sentence, including probation or supervised release, instead of prison time.

Can My Defense Attorney File a Rule 35 Motion?

No. Under the provisions of Rule 35(b), only the government (i.e., the prosecution) can file a Motion to Reduce Sentence under Rule 35.

However, your defense attorney can guide you in providing substantial assistance to the government in hopes of receiving a reduced sentence under Rule 35. It's essential to remember that the decision to file such a motion ultimately rests with the prosecution and is subject to their discretion.

Several factors can influence whether your sentence will be reduced under Rule 35.  Prosecutors consider several factors when deciding whether to file a Rule 35 motion to reduce the sentence, such as the following:

  • The significance and usefulness of the defendant's assistance,
  • The timeliness of their cooperation, and
  • Any potential risks or benefits to the government in granting a reduced sentence.

Ultimately, defendants must provide timely and valuable assistance that can aid in other prosecutions to increase their chances of a reduced sentence.

Who Has the Authority to Reduce Below Statutory Minimum?

The court possesses the authority to reduce a sentence to a level below the minimum sentence established by statute when acting under Rule 35(b).

However, this authority to lower a sentence below the statutory minimum only applies to offenses committed after the initial set of guidelines promulgated by the United States Sentencing Commission came into effect.

What Is Some Advice for Defendants?

While you don't have the legal authority to request a Rule 35 sentence reduction, your assistance to prosecutors can influence them to file the motion on your behalf.

If you have been sentenced for a federal crime and have information that could provide substantial assistance to prosecutors in another investigation, here are some tips that may help:

  • Cooperate Fully: Cooperate fully with prosecutors on your case and other related cases, providing all known information that could assist in their efforts. 
  • Prompt Communication: If you come across relevant information after sentencing, promptly communicate this to your attorney and the government. Timeliness can be crucial in these situations. 
  • Maintain Good Behavior: Maintaining good behavior while serving your sentence is essential. This can reflect positively on you and may support your case for a sentence reduction. 
  • Document Everything: Keep track of any assistance you provide to the government. This could include dates, times, individuals involved, and the nature of the assistance. 
  • Be Patient: Filing a Rule 35 motion and reviewing it by the court can take time. Be patient and follow your attorney's advice throughout the process.

While substantial assistance reductions under Rule 35(b) or 5K motions are filed by government prosecutors, a federal criminal defense attorney can help you negotiate cooperation.

Often, defendants are concerned about threats or retaliation to their family members for cooperating with the government or exposing themselves to further criminal liability through providing this information. Your lawyer can work to minimize these concerns as much as possible. Contact our law firm for a case review and to discuss legal options. Eisner Gorin LLP has offices in Los Angeles, California.

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