Understanding the Potential Impact of Cooperation on Federal Sentences
Cooperating with authorities is a controversial topic in criminal law. Some lawyers and defendants hold the belief that cooperation is something a defendant must never do, as the so-called code of the streets is to keep your mouth shut and never rat out or tell on your friends.
On the other hand, others believe that cooperation should be pursued wherever possible so that a defendant may seek leniency or favorable sentencing treatment as a reward for providing information to authorities about the criminal activity of others.
Who makes the decision to cooperate with authorities?
Whichever opinion you may hold about cooperation, the decision to cooperate or not belongs solely to the defendant. A lawyer may have opinions for and against cooperation.
However, a lawyer is obligated to relay to a client any opportunity offered, or requests received from the government.
Similarly, a lawyer is obligated to relay a client’s wish or desire to cooperate with the government.
When the defendant elects to cooperate
Where a client elects to cooperate with authorities, the lawyer is further obligated to educate the client on the benefits, risks, and potential pitfalls of cooperation.
Three ways that cooperation may be beneficial
The focus of this article is to educate defendants on the three ways that cooperation may be beneficial at the time of sentencing in federal criminal cases.
1. The first way to receive favorable cooperation treatment
The first way to receive favorable cooperation treatment is where the government exercises its discretion to file a motion at the time of sentencing advocating for substantial assistance to the government credit under §5K1.1 of the United States Sentencing Guidelines (U.S.S.G.).
This enables a federal sentencing court to depart from the applicable sentencing guidelines range. In a motion filed under U.S.S.G. § 5K1.1, the government will recommend to the court how much of a departure from the applicable guidelines range it believes is warranted, or alternatively stated, how much of a sentencing reduction the defendant should receive as a reward for cooperating.
The court will decide the amount of credit based upon the following factors:
- (1) 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; and
- (5) the timeliness of the defendant’s assistance. Where the government files a § 5K1.1 motion, the defense is free to respond by providing his or her perspective on the nature and extent of cooperation, along with a recommended sentencing reduction.
However, the court most often defers to the government’s evaluation of the cooperation and resulting sentencing benefit. It is important to note that while motions filed under § 5K1.1 are beneficial to federal criminal defendants, such motions alone do not release a defendant from exposure to an applicable mandatory minimum jail sentence.
2. The second and most beneficial way
The second and most beneficial way for a defendant to receive cooperation credit is where the government exercises its discretion to file a motion pursuant to 18 U.S.C. 3553 (e).
This law provides that upon motion by the government, the court shall have the authority to impose a sentence below an applicable statutory minimum jail sentence to reflect a defendant’s substantial assistance to authorities, either in connection with a criminal investigation or prosecution.
The government must file a motion under this statute for a defendant be relieved from exposure to an applicable mandatory minimum jail sentence.
In many instances, the government files a motion for cooperation credit under both U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553 (e). In other instances, the government will only move under § 5K1.1, which authorizes a departure from the applicable guidelines range, but does not authorize the court to impose a punishment below the applicable mandatory minimum jail sentence.
For defendants who choose to cooperate, pay careful attention to motions, pleadings, court documents and cooperation agreements filed in your case so that you are aware of the exact type(s) of credit you may be eligible to receive at the time of sentencing.
The third and final way
The third and final way for a defendant to benefit from cooperation is where the government declines to file motions under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553 (e), but the court still agrees to accept the cooperation efforts for purposes of mitigation. The court always has authority to consider mitigating factors and information submitted by the defense when making its sentencing recommendation.
To the extent a court credits a defendant’s cooperation efforts that did not yield any benefits directly from the government, the court may still impose a sentence below the applicable sentencing guidelines range.
However, a court has no authority or discretion to impose a sentence below an applicable mandatory minimum jail sentence in the absence of a motion from the government filed pursuant to 18 U.S.C. § 3553 (e). Further, the court has no power to force the government to move for cooperation credit under either the USSG § 5K1.1 or 18 U.S.C. § 3553 (e).
The decision to file either motion is entirely within the discretion of the U.S. Attorney’s Office that is prosecuting the case.
If you have questions or concerns about cooperation in a federal criminal case, contact the Federal Defense Lawyer John L. Calcagni, III for a free consultation at (401) 351-5100.