Study Reveals Differences in Substantial Assistance Reductions

A new U.S. Sentencing Commission study of sentence reductions for cooperating offenders reveals substantial differences in two ways offenders receive credit for their assistance. The full study is available online.

Offenders who cooperate with the government in its efforts to prosecute others can receive credit for their substantial assistance in two ways: the Federal Rule of Criminal Procedure 35(b) and a §5K1.1 departure under the Sentencing Guidelines.

Both require substantial assistance and a government motion. The difference is in timing. Rule 35(b) motions, are made after the original sentencing and §5K1.1 departure motions are made before sentencing and are granted at the time of the original sentencing.

The USSC study not only found the use of Rule of 35(b) was relatively rare, but reductions under the Rule benefitted offenders less than the more common §5K1.1 motion made at the time of sentencing. This holds true whether the Rule 35(b) reduction is compared to the §5K1.1 departure in terms of the ultimate sentence length or by the extent of the reduction from the original sentence.

A review of 10,811 cases in which Rule 35(b) reductions were granted over a six-year period showed this type of reduction has steadily decreased from a high of 2,092 in fiscal year 2009 to a low of 1,611 in fiscal year 2014. Nearly half of the Rule 35(b) sentencing reductions were in district courts within the Fourth and Eleventh Circuits — while district courts within the combined D.C., First, and Second Circuits accounted for only 2.5 percent of all reductions during this time period.

Offenders receiving Rule 35(b) reductions tended to have longer average sentences than offenders receiving sentences taking into account §5K1.1 departures. The average sentence after a Rule 35(b) reduction was 83 months. Offenders who received a §5K1.1 departure only had an average sentence of 52 months.

According to the USSC study, this may be because offenders who received a Rule 35(b) reduction were more likely to have been convicted of drug trafficking and firearm offenses – offenses that tend to result in relatively long sentences. But even after analysis was limited to those convicted of similar offense types, the study found offenders receiving Rule 35(B) reductions still tended to receive longer sentences than offenders who received  §5K1.1 departures.