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What Is a 5k Motion in Federal Court?

One way for federal defendants to increase the likelihood that they will receive lower sentences or to have previously-imposed sentences reduced is by cooperating with the government. When a defendant "cooperates," it means that he or she helps the government investigate or prosecute someone else. There are two ways that "cooperating" can result in a lower sentence. If a defendant cooperates before sentencing, the prosecutor can file a motion pursuant to § 5K1.1 of the United States Sentencing Guidelines (also known as a "5K" motion). If a defendant cooperates after sentencing, the prosecutor can file a Rule 35 motion. "Cooperating" does not guarantee that a prosecutor will file a § 5K1.1 or Rule 35 motion. Before a prosecutor will file a motion, the cooperation must amount to "substantial assistance."

Many cases in federal court include cooperation of some type.  This may simply be an admission and plea, which gets the defendant credit for acceptance of responsibility, but also includes helping my clients receive and benefit from § 5K1.1 and Rule 35 motions.  I have a highly focused practice, I am able to offer the quality of work normally associated with big firms, but with the personal attention and affordability expected from a small firm.

If you or a loved one needs an attorney who regularly represents individuals in federal court, please call Michael Bouldin at 859-581-6453 or email at [email protected].


What is a § 5K1.1 motion?

A Motion is a request to a court to do something. A 5K motion is motion filed by a prosecutor under the authority granted by § 5K1.1 of the United States Sentencing Guidelines ("guidelines"). It asks a sentencing court to depart downward under the guidelines based on "substantial assistance" provided by the defendant. As part of the sentencing process, a court must consider the range of sentences recommended by the guidelines. When a court departs downward, it means that the guidelines will recommend a shorter range of sentences. A government § 5K1.1 motion will normally result in a shorter sentence.

What is a Rule 35 motion?

A Rule 35 motion is a motion filed by a prosecutor under the authority granted by Rule 35(b) of the Federal Rules of Criminal Procedure. It asks a court to reduce a previously-imposed sentence based on substantial assistance by a defendant provided after sentencing.

Who can file a § 5K1.1 or Rule 35 motion?

Only the prosecutor in a defendant's federal case may file a § 5K1.1 or Rule 35 motion.

What is substantial assistance?

What is "substantial" in one prosecutor's office may not be "substantial" in another office. All prosecutors consider testifying against another person to be "substantial." Some prosecutors do not consider simply providing information to be "substantial," unless it leads to something specific, such as an arrest, indictment, or conviction.

Does a § 5K1.1 or Rule 35 motion authorize a court to sentence below a mandatory minimum?

Some offenses require a court to impose a sentence that is a least a certain number of years. For example, if a five-year mandatory minimum applies, a court must impose a sentence that is at least five years. A substantial assistance departure motion can give a court the power to impose a sentence as low as probation - but only if the prosecutor gives the court that power under the authority granted it by § 3553(e) of Title 18 of the United States Code.

When the prosecution files a §5K1.1 or Rule 35 motion, how low can a court's sentence go?

Although prosecutors filing § 5K1.1 and Rule 35 motions normally recommend specific sentences, once a prosecutor files such a motion, the court is free to impose whatever sentence it believes is appropriate. If a mandatory minimum is involved, a court may not impose a sentence below the mandatory minimum unless the prosecutor's motion gives the court such power.

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