Rule 35(b) Substantial Assistance Reductions


Substantial Assistance Sentencing Reductions

After a federal criminal conviction, the individual convicted is sentenced according to the Federal Sentencing Guidelines. These guidelines provide for a sentencing range for federal judges to reference before passing down the sentence. This could range from no time in prison with probation, up to life in prison. In some cases, the death penalty may even apply.

Any individual facing sentencing may be looking to have their substantial prison sentence reduced. In many cases, there are a few different ways that a sentence can be reduced, including when the individual cooperates with the government in a related or unrelated criminal investigation. Known as “substantial assistance” sentencing reductions, these may be sought before sentencing or even after a prison sentence has begun. These reductions can be significant, resulting in months or years off a prison sentence, or avoiding jail time altogether.

Although they are based on the same substantial assistance principal, the mechanism for reducing a prison sentence may differ depending on whether it was done before or after sentencing. A 5k motion usually occurs prior to sentencing, with a Rule 35(b) reduction occurring after sentencing.

These sentencing reductions provide for a reduced prison term even though the defendant is considered to be legally guilty and sentenced according to federal guidelines. The reason for these reductions is to encourage cooperation between a convicted defendant and the government.

For the government, this can be a powerful tool in gaining testimony and evidence in other criminal cases, where a convicted defendant may otherwise have no reason offer information. It can also be one of the only ways a convicted individual may hope for a reduced sentence, to get out of prison before serving their minimum federal prison sentence.

Another benefit to substantial assistance reductions is that once a judge hears the government's motion, they may depart from the maximum and minimum time range provided for in the sentencing guidelines. The substantial assistance motions may provide a recommended sentencing range for the judge, but in some cases the judge can impose a lower sentence, including probation or supervised release in lieu of prison time.

5K Reductions BEFORE Sentencing

Before a defendant is sentenced, when cooperating with the government, upon motion filed by the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person, the court may depart from the federal sentencing guidelines.

Under the United States Sentencing Guidelines § 5K1.1, the sentencing reduction shall be determined according to:

  • The court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered;
  • 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 his assistance; and
  • The timeliness of the defendant's assistance

Rule 35(b) Substantial Assistance Reductions AFTER Sentencing

Substantial assistance reductions can be achieved through filing a “Rule 35 motion.” This is a way to petition the court to correct or reduce an individual's prison sentence after the sentencing phase, either before or after they have begun to serve their prison sentence.

Under the Federal Rules of Criminal Procedure, Rule 35(b), upon the government's motion made within one year of sentencing, the court may reduce the sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.

After one year from sentencing, the court may reduce a prison sentence if the defendant's substantial assistance involved:

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

Federal Criminal Defense Lawyers

Substantial assistance reductions under Rule 35(b) or 5K motions are filed by government prosecutors; however, a criminal defense attorney can help negotiate cooperation on behalf of their clients. In situations where a defendant is worried about threats or retaliation for cooperating with the government, or worried about exposing themselves to further criminal liability through detailing their knowledge, their criminal defense lawyer can help make sure cooperation does not result in any harm to their client or the defendant's family.

By assisting the government in their criminal investigations, you may be eligible for a significant sentence reduction. If a friend or family member is facing criminal sentencing, a substantial assistance sentence reduction could get them a shorter sentence, or even probation. If they are serving a federal criminal sentence, a substantial assistance sentence reduction could get them of jail. It is important to have the right lawyers on your side, with the experience getting their clients out from behind bars, and back to a normal life.

What Happens Now?

If you are incarcerated, we will contact you in the jail where you are held, and we will remain in contact throughout the pendency of your case. If you are able to come in to the office, we will ask you to come meet in person as soon as possible. Our approach to defense is zealous, organized, and fast-paced, and we look forward to helping you.


Carmichael Ellis & Brock, PLLC is committed to representing you in criminal, military, security clearance, medical malpractice, personal injury, and product liability cases.