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Substantial Assistance

The Substantial Assistance Exception in Federal Sentencing

If you've recently been convicted of a serious federal crime—for example, a drug-related crime, a weapons offense, fraud, or human trafficking—your crime may carry a "mandatory minimum" sentence. 

In other words, federal law requires the judge to impose at least the statutory minimum sentence designated for that offense. However, the law does provide exceptions that enable the judge to impose a sentence below the mandatory minimum.

Substantial Assistance Exception in Federal Sentencing
The substantial assistance exception allows a sentence below the mandatory minimum.

One of the most promising exceptions offered is if you are willing to provide "substantial assistance" to the government in their prosecution of another criminal case. This can significantly impact your sentencing, potentially leading to a sentence below the mandatory minimum. 

This "substantial assistance exception" is embodied in 18 U.S.C. 3553(e), which says, “Limited Authority To Impose a Sentence Below a Statutory Minimum.— Upon the Government's motion, the court shall have the authority to impose a sentence below a minimum level established by statute to reflect a defendant's substantial assistance in investigating or prosecuting another person who has committed an offense. 

Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.”

Substantial assistance is a crucial element linked to your cooperation concerning the investigation or prosecution of another person. Your role in this process is invaluable, as this principle contends that the prosecution cannot move for, nor can the court grant, a 5K1.1 departure based solely on information the defendant provides themselves. 

Put simply, federal offenders who choose to cooperate with the government in its efforts to prosecute others can potentially receive credit for their “substantial assistance” in at least two ways, offering a glimmer of hope in an otherwise challenging situation. 

The most common is through a substantial assistance motion filed when the offender is sentenced. If granted, the court can impose a sentence below the advisory sentencing guideline range and an otherwise applicable mandatory minimum penalty.

What is the Substantial Assistance Exception?

As noted, the substantial assistance exception allows a court to impose a sentence below the mandatory minimum prescribed for an offense if the defendant has provided or agreed to provide substantial assistance in investigating or prosecuting another person. 

Federal Sentencing

The authority to trigger this exception originates from the prosecutor, who must file a motion to the court detailing the assistance provided by the defendant. This motion is not a right that a defendant can demand; it is a privilege granted at the government's discretion.

Offenders may also receive credit for substantial assistance after they have been sentenced. Federal Rule of Criminal Procedure 35(b) allows a court, upon the government's motion, to impose a new, reduced sentence that takes into account post-sentencing substantial assistance. The new sentence may go below the recommended guideline range and any statutory mandatory minimum penalty.

Rule 35(b) motions are made after the original sentencing and require a resentencing if granted, and 5K1.1 motions are made before sentencing. They are granted at the time of the original sentencing.

Related 28 U.S.C. 994(n) says, “The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.”

What Constitutes Substantial Assistance?

"Substantial assistance" is a broad term encompassing a defendant's actions to aid federal investigations or prosecutions. The assistance must be significant enough to contribute materially to resolving another criminal matter, either by helping to convict a higher-level offender or dismantling a larger criminal enterprise. Examples of substantial assistance may include:

  • Providing key information that leads to the arrest or conviction of other offenders.
  • Participating in undercover operations or controlled buys to gather evidence against other suspects.
  • Testifying in trials or grand jury proceedings against co-conspirators or other criminals.
  • Supplying documents, recordings, or other evidence that can substantively impact an ongoing investigation or prosecution.

What is the Impact on Sentencing?

When a substantial assistance motion is granted by a prosecutor and approved by a court, the result can significantly benefit the defendant. Sentences can be reduced to levels below the mandatory minimums, sometimes substantially so, depending on the nature and value of the assistance provided. 

However, the extent of the reduction is typically proportional to the assistance's impact on government cases. 

To be crystal clear, Providing substantial assistance does not result in a dismissal of your case or acquittal of the charges. It only applies to the reduction of your sentence upon conviction. Furthermore, prosecutors only offer this sentence reduction as an incentive if they are convinced you have information that can help them on another case.

The sentencing reduction for assistance to authorities shall be considered independently of any reduction for acceptance of responsibility. 

As noted, substantial assistance is directed to investigating and prosecuting criminal activities by persons other than the defendant. In contrast, accepting responsibility is directed to the defendant's affirmative recognition of responsibility for his conduct.

The government's evaluation of the extent of the defendant's assistance should be given substantial weight, mainly where the extent and value of the assistance are difficult to ascertain.

What is the Role of a Federal Criminal Defense Attorney? 

Negotiating a substantial assistance agreement is a delicate and complex aspect of federal criminal defense. Defense attorneys must navigate these negotiations carefully, balancing the government's demand for information against protecting the defendant's rights and well-being. The process involves the following:

  • Assessing the risks and benefits of entering into a cooperation agreement.
  • Ensuring that the agreement is precisely documented, including stipulations about the scope of the information provided and any sentencing considerations.
  • Preparing the defendant for debriefings, testimony, or other forms of cooperation.
  • Advocating for the most favorable terms possible, including efforts to minimize potential sentence reductions.

Negotiating an Agreement

The initial step involves engaging in discussions with prosecutors to outline the scope and nature of the assistance the defendant is willing and able to provide. This phase is critical, as it sets the foundation for what the government can expect in return for a sentencing concession.

Federal Criminal Defense Attorney

Experienced defense attorneys will meticulously evaluate the risks and benefits of cooperation, advising their clients on the best course of action.

Ensuring Compliance and Protection

Once an agreement is reached, defense attorneys play a pivotal role in ensuring that their clients comply with the terms of cooperation while safeguarding their rights and well-being.

This includes guiding debriefings, preparing clients for testimony, and advocating for protection from potential retaliatory actions by those implicated in their cooperation.

Advocating for Sentence Reduction

After the defendant has fulfilled their bargain, defense attorneys vigorously advocate for the agreed-upon sentencing reduction. This involves presenting compelling arguments to the court regarding the extent and impact of the defendant's assistance and asking the judge to exercise discretion in favor of a reduced sentence.

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