Jeremy Gordon
A person charged with a federal crime can use cooperation to seek a reduction in sentence under USSG 5k1.1, 18 USC 3553(e), the Safety Valve, or Rule 35(b)

Federal Criminal Cooperation: USSG 5k1.1, FRCP 35(b), 18 USC 3553(e) and the Safety Valve

When law enforcement detains someone for a perceived crime, they may present a chance for that person to cooperate.  This cooperation might come in several forms, from identifying co-defendants or co-conspirators in investigations to testifying against them in court.  A cooperator may receive a reduced sentence in one of several ways. 

postconviction relief, compassionate release, 2255 motions, case review

Offers to Cooperate

An Offer to Cooperate may come any time in the criminal process.  This could include communicating with the police after receiving a target letter, in communicating with the police during an investigation or after an arrest, or by engaging in a “proffer” with the police during the pendency of a court case.  

Offers to Cooperate During an Investigation

It is important to remember that during an investigation the police are there to seek information and make decisions.  A person who is communicating with police should understand that everything that they say is part of an investigation, from “how fast do you think you were going” to questions about who sold them the drugs that they may be in possession of.  In this prism, information that could provide assistance in the investigation is valuable to both parties and should be considered as such.  

Police Investigations can Take Many Forms Including Asking about you, asking about the amounts of drugs, asking for identities of unknown persons and asking for locations of evidence.

Because these pieces of information are valuable, you should never give up information such as this without defense counsel present to keep a record of what you said and to track the information in order to determine how it was ultimately used.  Law enforcement will be taking notes of what an accused person says or doesn’t say. An accused person should do the same.  

Offers to Cooperate During the Criminal Case: The Proffer

A person can choose to cooperate during the pendency of a criminal case as well.  Usually this type of cooperation comes before or soon after the time the accused person decides to plead guilty.  Colloquially this is called a “proffer.”

The accused person appears with their attorney to talk to the prosecutor and law enforcement.  The accused person is asked questions about the case and criminal activity involving co-defendants and co-conspirators if applicable.  The accused person usually signs an agreement that states the following:

  • The accused person agrees to tell truthful and complete information 
  • The accused person acknowledges that false statements are crimes that can lead to prosecution for several types of offenses including perjury, making false statements  or obstruction of justice.  
  • The accused person understands that statements they make may be used by the government to investigate other information and evidence.
  • The accused person understands that if they testify differently at a trial from what is said at their proffer, that the statements at their proffer may be used to cross examine them or disparage their credibility on the witness stand.  
  • The accused person understands that the government may give this information to the court if asked.  

Law enforcement takes a record of what is said at the proffer.  

Offers to Cooperate at the Trial of Others: Testimony

When a person decides to cooperate with law enforcement, they must understand that cooperation may extend to the trial.  The cooperator may be required to be ready to testify in the criminal trial of another person.  This testimony may include information about the proffer and any subsequent investigations.  

In some situations the mentioning of the cooperator is enough to resolve the case; once a person realizes that their codefendant will testify against them they may decide to plea.  If not, the cooperator may want to have their lawyer at the trial in which they testify so that the lawyer can refer to their client’s testimony when seeking a reduction.  

Types of Cooperation Sentence Reductions

It is important to remember that during an investigation the police are there to seek information and make decisions.  A person who is communicating with police should understand that everything that they say is part of an investigation, from “how fast do you think you were going” to questions about who sold them the drugs that they may be in possession of.  In this prism, information that could provide assistance in the investigation is valuable to both parties and should be considered as such.  

Federal Safety Valve

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Title 18 United States Code Section 3553(e), United States Sentencing Commission §§ 5C1.2 and §2D1.1(b)(17)

A person may be able to cooperate in order to receive relief under the “Safety Valve” provision of 18 U.S.C. 3553(e), USSG sections 5C1.2 and §2D1.1(b)(17). The safety valve is a particular area of importance as it is a way to receive reductions below mandatory minimum sentences.  This allows offenders to receive reductions in sentence as long as: 

Criteria For Safety Valve:

  • the offender does not have more than 4 criminal history points (excluding any criminal history points resulting from a one point offense in the sentencing guidelines);
  • The offender does not have a prior three-point offense, and;
  • The offender does not have a prior two-point offense as determined by the sentencing guidelines;
  • The offender did not use violence, credible threats of violence, did not possess a firearm and did not induce another person to possess a firearm;
  • The accused crime did not result in death or serious bodily injury to any person;
  • The offender has truthfully provided all the information and evidence that the offender has concerning the offenses that were part of the same course of conduct or out of a common scheme or plan BEFORE or AT THE TIME OF the sentencing hearing.  

It is vitally important that cooperators give all the information that they have here in order to be otherwise eligible for the safety valve.

Motions for Reduction in Sentence under Federal Sentencing Guideline 5k1.1 | Reductions for Cooperation at Sentencing

The prosecutor can file a USSG 5k1.1 motion in order to reflect a cooperator’s substantial assistance before the judge imposes a sentence upon the cooperator.  This allows the court to depart from the federal sentencing guidelines.  

The court can consider the following in reducing the sentence based on a 5K1.1 substantial assistance motion:

(1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;

(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;

(3) the nature and extent of the defendant’s assistance;

(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;

(5) the timeliness of the defendant’s assistance.

Motions for Reduction in Sentence under 18 U.S.C. 3553(e) | Reductions for Cooperation at Sentencing

The court can also reduce a person’s sentence for information that leads to the investigation and prosecution of others who have committed offenses.  The prosecutor must file a motion for reduction in sentence for the judge to have this ability.  Here, the court can grant a sentence under the statutory mandatory minimum for all crimes, not just drug cases.  The statute indicates that the reduced sentence here must be imposed in accordance with the guidelines and the policy statements.  This is different from the safety valve where the court can reduce the guidelines as well as the mandatory minimum sentence.

Reductions In Sentence that are “Baked into The Deal” | Nontraditional means of Rewarding  Cooperation 

At times, the prosecutor can use their discretion to reward cooperation via non-traditional means.  This can include choosing the dismiss 851 enhancements, going forward with charging instruments that do not reflect the total amount of criminal activity, or using Federal Rule of Criminal Procedure 11(c)(1)(C) to make a binding plea agreement to a lower amount of punishment than the court would normally sentence an offender to and explaining to the court why such an agreement would be appropriate in this case.  

Reductions in Sentence under Federal Rule 35(b) | Cooperation By Defendant after Sentencing

A person can receive a reduction for cooperating even after the court imposes a sentence.  Under Federal Rule of Criminal Procedure 35(b), a sentencing judge may reduce a sentence upon motion of the government stating that the defendant has given substantial assistance in the investigation and prosecution of another person who has committed an offense. Substantial assistance can include:

  • A cooperator giving verbal information to law enforcement, 
  • A cooperator going “undercover” to observe criminal activity,  
  • A cooperator agreeing to debriefings with law enforcement officers, prosecutors and criminal defense attorneys, 
  • And a cooperator testifying in court or testifying before a grand jury.  

Once the target of the cooperation is brought to justice, usually by either pleading guilty or being found guilty at trial, the cooperator’s attorney approaches the prosecutor and asks for an appropriate reduction in sentence.  If the prosecutor deems it appropriate, the prosecutor will file a motion asking the court for a reduced sentence.  

In the case of new cooperation to be offered by an incarcerated person after sentencing, it is vital that the incarcerated person have counsel to approach the prosecutor and find out if the government is interested in the cooperation that the inmate wishes to provide.  This information should guide the inmate’s decision to cooperate, especially if there is no plea agreement on file with the court (some defendants have plea agreements that mandate future cooperation if the inmate comes into new material to cooperate with).  

Reductions in Sentence under Federal Rule 35(b) | Third Party Cooperation after Sentencing

Not only can an accused person receive a reduction when they cooperate with law enforcement, but a loved one can cooperate in order for an incarcerated person to receive a reduction in sentence.  Examples of this may include:

A cooperator giving verbal information to law enforcement, 

  • A cooperator going “undercover” to observe criminal activity,  
  • A cooperator agreeing to debriefings with law enforcement officers, prosecutors and criminal defense attorneys, 
  • And a cooperator testifying in court or testifying before a grand jury.  

In the case of new cooperation to be offered by an incarcerated person after sentencing, it is vital that the incarcerated person have counsel to approach the prosecutor and find out if the government is interested in the cooperation that the inmate wishes to provide.  This information should guide the loved one’s decision to cooperate, especially given that the loved one was not a party to a plea agreement.  

A Special Note:  Rule 35 cooperation and 2255 motions 

We are approached often by individuals that have cooperated in the past and have not received a reduction for their cooperation.  Some of these individuals are also in the statute of limitations and have valid claims for 2255 motions, including ineffective assistance of counsel.  This represents a crucial time for those persons.  As we have explained, the deadlines for 2255 motions are hard deadlines.  Failing to file a 2255 motion in the statute of limitations can cause a permanent bar on those claims.  

However, we have seen prosecutors refuse to file Rule 35 reduction motions for cooperators after a person files a 2255 motion.  We have heard prosecutors indicate that the claims in the 2255 motion put the person’s “credibility at issue.”  This usually involves failed claims of improper promises made by former counsel around the plea range, allegations that counsel was asked to file certain documents that they did not file (i.e. a notice of appeal), and other claims where the incarcerated person made a claim, the former counsel made an opposite claim and the court found in favor of the former counsel.  

The best way that we have seen these matters be handled is that the attorney asks the prosecutor for the reduction before the 2255 statute of limitations while working on the 2255 motion at the same time.  If the prosecutor is unwilling to proceed with the Rule 35 motion and the grounds for the 2255 are strong, then the defense attorney can go forward and file the 2255 motion before the deadline. 

If you would like to pursue Rule 35 Cooperation, contact our office to talk about your options.

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Reach out to The Law Office of Jeremy Gordon for prompt, courteous and skilled representation as your federal criminal defense attorney.  Use the form below or call us at 972-483-4865 today!