What is a 5K Motion for Federal Sentence Reduction?
A 5K motion is a way to get a reduced federal sentence. The term “5K” references a United States Sentencing Guidelines provision:
Chapter 5 – Determining the Sentence
Part K – Departures
Section 5K1.1 – Substantial Assistance
A 5K motion is a request to the federal judge filed by the Government (federal prosecutor) asking that the judge depart downward from the sentencing guideline range because a defendant has provided “substantial assistance.” Notice, the motion is filed by the Government and not the defendant or the defense attorney. In some cases, a 5K motion can reduce a sentence by years.
The motion will set out the reasons the judge should give a lower sentence. Ultimately, the judge will determine the amount (if any) of the reduction. The judge should consider:
- How helpful the defendant’s substantial assistance was to the arrest, conviction, or sentencing of other defendants;
- The truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
- The nature and extent of the defendant’s assistance;
- Any injury suffered, or any danger or risk of injury to the defendant or his family resulting from cooperating with the Government; and
- The amount of time that passed before the defendant decided to be helpful to the Government.
Remember, the Government files the 5K motion, but the judge decides whether to reduce the sentence (grant a departure). Also, the federal judge will usually listen to the Government when the judge decides how helpful the substantial assistance is. The Guidelines application notes say, “Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.” USSG § 5K1.1, Application Note 3.
Deciding whether to cooperate with the Government is a serious decision. It does not play out like the movies. It may be your best, or only, chance to get back to your family in time to spend those last years with your parent or be there for the most important years in your child’s life. Cofer Luster will guide you through the decision and help leverage your situation to relieve your suffering.
What is “substantial assistance” to get a 5K?
“Substantial Assistance” means a federal criminal defendant helps the government investigate and prosecute crimes committed by someone other than the defendant. This is required for the Government to file a 5K motion.
A defendant can provide substantial assistance in a variety of ways. For example, a defendant might provide information to government agents that helps the agents get a search warrant or arrest warrant. This could lead to additional evidence or the prosecution of someone else. Usually, this information is given in a “proffer” or a “debrief” session with federal agents. Some cooperating defendants give information that may help prosecutors get a harsher sentence against someone. The most involved, and usually the most heavily rewarded, is when a defendant must testify at trial.
People hesitate about “snitching” or helping the government. Some people are afraid. The reality is that a large percentage of federal criminal defendants provide substantial assistance. This is especially true in federal drug trafficking cases.
Will a 5K be on my PSR or paperwork?
Do not be misled. If you provide substantial assistance to the Government, then there will be a record of it. This does not mean inmates in the Federal Bureau of Prisons will find out. Your cooperation should not be in the presentence report (PSR). Any motion made by the Government related to your cooperation should be sealed. Federal agents should carefully protect your identity in investigative materials. The fact is, a lot of people who are in federal prison cooperated with the Government. Not all of them received a 5K or other sentence reduction. Instances of violence related to “snitching” are rare, but violence does occur.
Your safety is one of the reasons you should find a federal criminal attorney who has a lot of experience dealing with substantial assistance and 5K motions. An experienced, skilled, and careful attorney can help keep information from spreading. Steps can be taken to minimize any risk to you or your family. Cody Cofer has helped hundreds of clients stay safe and get a better sentence. Let our team help you.
Can I get a sentence reduced below the statutory minimum with a 5K motion?
One of the greatest possible benefits of a 5K is that it clears the way for a defendant to get a sentence below a statutory minimum. If the Government files a 5K Motion, then the federal judge has “authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” See 18 U.S.C. § 3553(e).
For example, if someone is being sentenced for a drug charge under 21 U.S.C. § 841(b)(1)(b), then the lowest sentence authorized by that statute is 5 years of imprisonment. However, if the Government files a 5K Motion, then the judge may impose a sentence of less than 5 years imprisonment.
Notice, that this is different than the requirements for “Safety Valve” which is another federal sentence reduction that can go below the statutory minimum.
Do I need to provide “Substantial Assistance” to get Acceptance of Responsibility?
No, you do not. “Acceptance of Responsibility” means the federal judge will reduce the Offense Level in computing the United States Sentencing Guidelines. This usually reduces the recommended guideline sentence.
The application notes of Section 5K1.1 say, “The sentencing reduction for assistance to authorities shall be considered independently of any reduction for acceptance of responsibility. Substantial assistance is directed to the investigation and prosecution of criminal activities by persons other than the defendant, while acceptance of responsibility is directed to the defendant’s affirmative recognition of responsibility for his own conduct.”
Can my federal criminal defense attorney help me get a 5K sentence reduction?
Yes, your lawyer may help you get a 5K. This is an area where the experience and skill of your federal attorney matters. But first, you must understand that if you do not have any information for the Government, then you cannot provide substantial assistance. It is dangerous to try to make something up. You could end up going to prison much, much longer if you lie to give “substantial assistance.”
However, if you do have helpful information, then handling the “proffer” (meeting with agents) and leveraging your substantial assistance is how a skilled federal sentencing attorney can make all the difference in your case. There is no substitute for experience.
Cody Cofer has successfully guided his clients through “substantial assistance” and getting a departure based upon a 5K motion. He is a former Assistant Federal Public Defender and a Board Certified in Criminal Law by the Texas Board of Legal Specialization. He mentors and teaches other federal law attorneys and students.