Sentence Reductions in Federal Cases via Rule 35(b)
Suppose you have been convicted and sentenced for a federal crime. In that case, you may still have an opportunity to have your sentence reduced if you are willing and able to assist the government in investigating or prosecuting other offenses.
This provision, Rule 35(b) of the Federal Rules of Criminal Procedure, offers a glimmer of hope. While a sentence reduction is ultimately at the court's discretion, if you show good faith in providing such assistance, it's possible to get your original sentence reduced even below any mandatory minimum sentencing for the crime for which you have been convicted.
Simply put, Rule 35(b) allows a court to reduce a sentence, even below mandatory minimums, if the government moves to do so based on a defendant's substantial assistance in investigating or prosecuting another person after sentencing.
The government must file this Rule 35 motion within one year of the sentencing. The court then, in a fair and just manner, has the discretion to decide whether and to what extent the sentence should be reduced.
Rule 35(b) is designed to incentivize defendants to cooperate with the government after they have been sentenced, but, as noted, the government must initiate the process by filing a motion with the court.
Notably, the defendant's assistance must be "substantial" and have been used to investigate or prosecute another person. The court, recognizing the defendant's significant role, has the discretion to determine whether a reduction is warranted and to what extent it should be reduced.
According to the United States Sentencing Commission, the sentence can be reduced, potentially even below any mandatory minimum set by statute. Rule 35(b) reductions are generally less beneficial than 5K1.1 departures, but offenders who receive both may experience the largest overall sentence reduction.
What is Rule 35(b)?
If you have been sentenced in Federal Court and you want a lower sentence, you need to know about Rule 35 of the Federal Rules of Criminal Procedure.
Rule 35 allows a Federal District Court Judge to modify a sentence after the judgment has been pronounced and the sentence has begun.
This can be very important to someone who is looking for a way to get their sentence in the Bureau of Prisons reduced and for them to spend less time incarcerated at a United States Penitentiary, Correctional Institution, or Prison Camp.
Rule 35(b) is a federal law mechanism allowing a court to reduce a defendant's sentence after it has already been imposed. The rule is triggered when the government (i.e., the prosecution) files a motion asserting that the defendant has provided substantial assistance in another investigation or prosecution.
The term "substantial assistance" refers to a defendant's actions that significantly aid law enforcement or prosecutors. This may involve the following:
- Sharing critical information about criminal activity,
- Identifying co-conspirators,
- Testifying in court, or
- Participating in undercover operations.
The assistance must go beyond mere cooperation and rise to a level that materially advances the investigation or prosecution of another individual or group.
The qualifications depend on whether the defendant had no prior knowledge of the information before the first year of their sentence, the defendant provided information after the first year of their sentence, and if the information was deemed useful by the government after the defendant's first year in prison.
What Does Federal Law Say?
Federal Rules of Criminal Procedure Rule 35. Correcting or Reducing a Sentence says -
"(a) Correcting Clear Error. Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.
(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. The court may consider the defendant's presentence assistance in evaluating whether the defendant has provided substantial 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.
(c) "Sentencing" Defined. As used in this rule, "sentencing" means the oral announcement of the sentence."
Government Must Initiate the Motion
Resentencing under Rule 35(b) is by no means automatic. Not only must you act in good faith in assisting, but a number of things must occur in your favor for your sentence to be reduced. Key things to know about this rule, such as the government must initiate a Rule 35(b) Motion.
Unlike direct appeals or other post-conviction remedies, defendants cannot independently submit a Rule 35 (b) motion to the court. The government initiates this process solely at its discretion, and it will only take this step if it determines that the assistance provided is credible and substantial.
The government's Rule 35(b) motion must be initiated and include detailed information about the extent and value of the defendant's assistance.
For instance, if the defendant provided information that led to the arrest of a major drug supplier or testified in a high-profile organized crime case, these contributions would likely be highlighted as examples of substantial assistance.
Court's Discretion
Even after the prosecution files a Rule 35(b) motion, the court retains full discretion to decide whether to grant the sentence reduction and, if so, the degree of that reduction.
The court will carefully evaluate the assistance's significance, reliability, and impact on the case in question, making the decision a thorough and considered process, making the decision a thorough and considered process. When making its decision, the court considers factors such as:
- The usefulness of the assistance - Did the defendant provide key evidence, testimony, or intelligence that directly led to an arrest or conviction?
- The timeliness of the assistance - How soon did the defendant come forward with the information or begin cooperating?
- The risks the defendant took - Did assisting put the defendant in danger, such as threats of violence from other participants in the crime?
There is no formula or guarantee for how much of a sentence reduction the court may grant, as this decision ultimately rests with the judge overseeing the case.
Timing of Rule 35(b) Motions
Generally, Rule 35(b) motions must be filed within one year of the defendant's sentencing. This timeline is designed to ensure that assistance is provided while investigations remain active and relevant to ongoing cases.
However, there are exceptions to the one-year rule, which may allow for motions beyond this time frame. For example, the government may still file a Rule 35(b) motion after the one-year mark if the defendant provides new information that becomes relevant due to unforeseen events or developments in an investigation.
Additionally, certain courts have permitted exceptions when filing delays were reasonable or outside the government's control.
How a Defense Attorney Can Assist
While resentencing under Rule 35(b) is initiated and carried out by the government, there are still things a skilled federal criminal defense attorney can do to lay the groundwork for the process and improve the chances of having the motion granted. A good attorney can, for example:
- Advocate for Cooperation Agreements: A defense attorney can help negotiate a plea agreement or cooperation deal that incentivizes the government to file a Rule 35(b) motion later.
- Present Assistance Effectively: An attorney can ensure that the defendant's contributions are documented thoroughly and communicated persuasively to prosecutors.
- Negotiate Timelines: Attorneys can advocate for exceptions to the one-year rule by demonstrating the importance of late-breaking assistance.
- Protect the Defendant's Rights: Cooperation can expose defendants to risks, including retaliation. An attorney will work to minimize these hazards while ensuring that the assistance provided is impactful without undue jeopardy.
- Work to Maximize Sentence Reductions: Finally, a lawyer can argue persuasively at resentencing hearings to achieve the most favorable outcome possible when a Rule 35(b) motion is presented in court.
For more information, contact Eisner Gorin LLP, a federal criminal defense law firm in Los Angeles, California.
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