Federal White Collar Defense: 5k1 Motion

Federal White Collar Defense: 5k1 Motion – Table of Contents

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What is a 5K1 Motion or Letter?

Federal White Collar Defense: 5k1 Motion is brought by the US Attorney’s Office (prosecutor) to argue to the Judge that a defendant’s sentence should be reduced below the minimum of the US Sentencing Guideline Range. The prosecution will recommend such a departure from the minimum sentence only if the defendant has provided “substantial assistance” to the government. The US Sentencing Guidelines are no longer mandatory, only advisory, however they still must be considered by the Judge. Usually, there is a minimum and a maximum in the range, say 37 to 45 months, which is based on a point system. The Judge will typically sentence in that range. However, if the prosecutor brings a 5k1 motion or writes a 5K1 letter to the Court, telling the Judge that the defendant provided substantial assistance, then the Judge could follow the prosecutor’s recommendation and reduce the sentence considerably.

Unfortunately, when the possibilities of a 5K1 motion reduction are being discussed, prosecutors make no promises or guarantees. It is exclusively up to the prosecution to decide if “substantial assistance” has been provided and if they want to bring a 5K1 motion. Also, the US Attorney will typically not recommend a specific sentence, but will only recommend a departure from the minimum sentence. The Judge must decide what the sentence actually will be.
For instance, if the defendant has provided “substantial assistance” the prosecutor can recommend a 3-point reduction in the Sentencing Guidelines, which can bring the time down considerable. However, it is up to the Judge to determine if this reduction, a lesser reduction a great reduction, or no reduction will be granted.

5K1 letters also vary in the strength they advocate for a defendant’s sentence to be reduced: they can be very strong, to middle of the road, to weak. If the government considers the assistance of the defendant as extraordinary, the prosecutor can recommend a substantial departure from the Sentencing Guidelines. A cooperation plea agreement which garners a 5K1 motion is often the defendant’s best chance of getting his sentence reduced. “Substantial cooperation” is not specifically defined in the Guidelines, however it can include:

• Meetings with Government Prosecutors
• Turning over documents
• Wearing a wire to tape record other suspects
• Doing a consensual phone call with other targets of the investigation

It’s important to realize that the timeline for cooperation can be years, and during that time a defendant will live in the unknown and uncertain world as to whether and for how long he will be sentenced to. Usually, it’s best if the sentencing is put off until all of the cooperating has been provided. However, if that’s not possible, someone can still cooperate after the sentencing and a Rule 35 motion can be filed by the government to recommending a sentence reduction.

If you intend to cooperate and provide substantial assistance, it’s very important that you always be truthful with the government, and be forthcoming with providing information.

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That’s the best way to earn your 5K1 motion sentence reduction! Your licensed Los Angeles Criminal Defense Lawyer will spend the time explaining the facts and your options.

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