Rule 35(b) – Substantial Assistance Sentence Reduction

As a general matter, federal courts are forbidden to modify a sentence after it has been imposed. However, there are a few narrow exceptions to that rule. One such exception is Rule 35(b) of the Federal Rules of Criminal Procedure. This rule allows for a sentence reduction if the defendant has provided substantial assistance to the government in the investigation or prosecution of another person. Under Rule 35(b), upon a government’s motion made within one year of sentencing, a federal court is allowed to reduce a sentence if, after sentencing, the defendant provided substantial assistance. If the government brings a substantial assistance motion more than a year after sentence had been imposed, the court may reduce the sentence if the assistance involved one of the following:

• The information provided to the government was not known to the defendant until more than one year after sentencing;
• The information was given within one year of sentencing, but the information that was provided did not become useful to the government until more than a year after sentencing; or
• The usefulness of the information provided could not have been reasonably anticipated by the defendant until more than a year after sentencing and the information was provided promptly after its usefulness became apparent to the defendant.

Courts have held that, generally, the government is under no obligation to file a substantial assistance motion regardless of how useful the information provided was. However, there are a couple of important limits to the government’s discretion, where a refusal to file a motion can be reviewed by the court:

• The first exception is if the government has obligated itself to bring such a motion under the terms of its plea agreement with the defendant; or
• The government’s refusal to file a substantial assistance motion is based on an unconstitutional motive like race or religion.

That is why it is important to work with an experienced criminal defense attorney who can protect your interests and make sure that the substantial assistance you provide works to benefit you. The attorneys at the Justice Firm have decades of experience and will work not only to ensure that the assistance you provide benefits you, but will work to ensure that you and your family are protected from retaliation or further criminal exposure.

One important part of Rule 35(b) is that, once the government files a substantial assistance motion and recommends a sentence reduction, courts are not bound by the government’s recommendation. Under Rule 35(b), courts have broad discretion in determining the new sentence, which allows them to reduce a sentence even below the statutory minimum sentence for the crime.

When deciding a Rule 35(b) motion, courts employ a two-step analysis. First, a judge will determine whether the defendant has indeed provided substantial assistance. The assistance cannot be minimal, it has to be substantial and more importantly the government has to consider it to be substantial. The second part of the court’s analysis is deciding the extent to which an assisting defendant’s sentence should be reduced.

In exercising their discretion, courts consider non-assistance factors in determining the extent of sentence reduction. Such factors include defendant’s character prior to sentencing, any presentence cooperation, the post-conviction record, and current health condition among others.

As already mentioned, while the government has broad discretion and is under no obligation to bring a substantial assistance motion, an experienced criminal defense attorney can negotiate the cooperation on behalf of the client. If you would like to explore the prospects of reducing your sentence or have information that can be useful to the government, you should speak to one of our highly skilled and compassionate federal criminal defense attorneys at the Justice Firm, who understand how to best protect their clients’ interests and make sure the government utilizes the information provided.

If you or a loved one is facing criminal sentencing or has been sentenced already, you can contact our criminal defense attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.