Substantial Assistance Under FRCP 35

Under federal law, a court has the power to correct or reduce your sentence upon a motion filed by the United States Attorney’s Office. One way in which a federal sentence may be subject to reduction is through the provision of substantial assistance under FRCP 35. However, if you have been charged with a federal crime, you should be aware there are potential pitfalls when you give substantial assistance to federal law enforcement without the guidance of legal counsel and the protection of a proffer agreement. If you would like to investigate the prospects of reducing your sentence, you should consult experienced Tampa federal crimes attorney Jason Mayberry. Mr. Mayberry knows what buttons to push for his clients in this arena and how best to put them in a position to benefit from information they have. Time and again he has deftly handled situations in which his clients wished to obtain sentencing reductions. He can work with the government to make sure you see a benefit after helping them against others and in doing so he can work to ensure his clients have the most protections afforded to them to avoid any kind of backlsash from those cooperated against.

Federal Rule of Criminal Procedure 35 provides for the correction or reduction of a federal criminal sentence. Under FRCP 35(b), your sentence can be reduced when you provide “substantial assistance” to the government. The government must bring a Rule 35(b) motion for the sentence reduction to occur after help is given and there is no way to compel them to do so. As such, the discretion regarding the filing of such a motion lies solely with the United States. Unlike a substantial assistance motion filed under United States Sentencing Guideline 5K1.1, substantial assistance relief under Rule 35, occurs after you have been sentenced.

When the court applies Rule 35(b) in response to the government’s motion, it has the power to reduce your sentence to a level below the statutory minimum sentence for the crime. This is crucial because many federal crimes, including drug crimes and some fraud crimes, carry a mandatory minimum sentence. The court does not have discretion about whether to impose the mandatory minimum; depending on the crime, this sentencing scheme can result in defendants spending many years in federal prison.

According to the United States Sentencing Commission, rule 35(b) sentencing reductions typically provide less benefit than do section 5K1.1 substantial assistance reductions and this is likely due to the timing of the cooperation. However, there are situations, such as drug trafficking convictions that carry a mandatory minimum penalty, in which a rule 35(b) reduction provides great relief due to the ongoing nature of the drug trade. You should work with a Tampa attorney who understands how best to protect your interests and who will continue to press the government to utilize information given, regardless of whether you have already been sentenced.

In practice, under Rule 35(b), the federal government must make a motion within one year of your sentencing asking the court to reduce your sentence because you provided substantial assistance in order for relief to be given. It is a nebulous term, but there are various ways to provide “substantial assistance.” For instance, in a cocaine trafficking case involving money laundering, you might provide substantial assistance by giving the government information about a drug kingpin and how he or she washes their money so that he can be captured by law enforcement officers. In a fraud crime, giving up information regarding others and how they perpetuate the fraud can be helpful.  

Mr. Mayberry may be able to help negotiate the circumstances under which you provide substantial assistance. In many instances, defendants are concerned, rightly, about retaliation or threats for helping the government from former or current associates. Additionally, unprotected defendants may expose themselves to additional criminal liability by providing detailed knowledge to the government, and it is imperative to avoid that. We can work to make sure that the substantial assistance you provide actually benefits you, all the while working for safeguards from retaliation or further criminal exposure.

If more than a year has transpired since your sentencing, Federal prosecutors can still move to have your sentence reduced for substantial assistance but must demonstrate the following:

• You provided information that was not known until one year or more after sentencing.
• The substantial assistance you provided was information. You handed it over the government within a year of sentencing, but it simply didn't become useful to prosecutors until more than a year after you were sentenced.
• You provided information the usefulness of which couldn't be reasonably expected by you until after a year had passed since sentencing. Once you realized it was useful, you provided the information promptly.

In evaluating whether you gave substantial assistance to the government, the court is allowed to consider any help you provided federal prosecutors before you were sentenced, as well. As your lawyer, Mr. Mayberry can skillfully wield persuasive evidence and arguments in court to help ensure these factors are considered by the judge.

Rule 35(b) motions can be helpful in mitigating the harshness of federal sentencing, particularly after drug trafficking convictions. You will benefit from counsel and representation when a Rule 35 motion is a possibiliyt. Depending on the situation, Mr. Mayberry may be able to make sure an appropriate motion is made for a sentencing reduction. Experienced Tampa defense lawyer Jason Mayberry represents those charged with federal crimes in Hillsborough, Pinellas, Pasco, Manatee, Sarasota, Hernando or Polk Counties. He is admitted to practice before the federal Middle District of Florida, federal Southern District of Florida, along with state court. Call the Mayberry Law Firm at (813) 444-7435 or complete our online form.