Federal Substantial Assistance

Section 5K1.1 Substantial Assistance To Authorities

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who committed an offense, the court may depart from the guidelines.

(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, reconsideration of the following:

  1. 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

  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

  5. The timeliness of the defendant's assistance

Substantial Assistance Analysis

This section gives the government the power — but not the duty — to file a motion to reduce the defendant's sentence to reward substantial assistance. It is within the government's discretion whether to file a motion for a downward departure. Wade v. United States, 504 U.S. 181 (1992).

In absence of the safety valve application, a sentencing court cannot depart from a mandatory minimum sentence in the absence of a Section 5K1.1 motion by the government.

Where there is substantial assistance in a case in which there is a mandatory minimum sentence, the starting point for the departure is the mandatory minimum sentence, not the guideline sentence. Thus, if there is a 10-year mandatory minimum, but the guideline calculation is 70-87 months, the beginning point of the Section 5K1.1 departure is 10 years (120 months).

In deciding to grant a downward departure and deciding how much to depart, the court should consider only the defendant's assistance and nothing else. United States v. McVay, 447 F.3d 1355 (11th Cir. 2006).

Once the government has made a Section 5K1.1 motion, the government has no control over whether, and to what extent, the District Court departs from the federal sentencing guidelines. The total sentence reduction is completely within the discretion of the court.