Publisher's Synopsis
Offenders who cooperate with the government in its efforts to prosecute others can receive credit for their "substantial assistance" in at least two ways. The most common and most analyzed method is through a substantial assistance motion that is filed pursuant to §5K1.1 of the Sentencing Guidelines at the time the offender is sentenced. If granted, the court may impose a sentence below the advisory guideline range and, if accompanied by a motion pursuant to 18 U.S.C. § 3553(e), below an otherwise applicable mandatory minimum penalty.1 Offenders may also receive credit for substantial assistance after they have been sentenced. Federal Rule of Criminal Procedure 35(b) permits a court, upon the government's motion, to impose a new, reduced sentence that takes into account post-sentencing substantial assistance, and that new sentence may go below the recommended guideline range and any statutory mandatory minimum penalty. These Rule 35(b) reductions are, in most respects, identical to §5K1.1 departures, as both require substantial assistance and both require a government motion. The only significant difference between the two types of motions is timing: Rule 35(b) motions are made after the original sentencing and so require a resentencing if granted, and §5K1.1 motions are made before sentencing and are granted at the time of the original sentencing. Notwithstanding their substantive similarity, these two types of motions are used quite differently in practice. This report comprehensively analyzes for the first time2 information on Rule 35(b) reductions obtained by the Commission from fiscal years 2009 through 2014 and, when possible, compares these reductions to §5K1.1 departures over the same time period. Among other conclusions, this analysis confirms that fewer offenders receive Rule 35(b) sentencing reductions than §5K1.1 departures and that the number of Rule 35(b) sentencing reductions has generally decreased. That being said, there are a small number of districts where Rule 35(b) sentencing reductions are used as often or more often than §5K1.1 substantial assistance departures. Regardless of the jurisdiction and the frequency with which such motions are used, Rule 35(b) motions generally result in a smaller reduction in the sentence imposed-whether in terms of months or percentage-than do §5K1.1 departures.
