Feitel Law Firm


by Robert Feitel www.rfeitellaw.com

This blog entry addresses the some of the more nuanced issues involving “cooperation” and sentence reductions for “substantial assistance” under the Federal Sentencing Guidelines and current practice in federal courts. The contents are not meant to provide legal advice, but to identify important issues involved with the attempt to cooperate.

There are many pernicious aspects of the Federal Sentencing Guideline regime, including pretrial detention for almost anyone charged in a drug case, oppressive sentences for many crimes, and the almost unfettered ability of federal prosecutors to offer plea agreements that virtually pre-determine the sentence in any particular case. But even worse, the federal sentencing structure is designed so that the only way a defendant can receive a significant sentence reduction is by providing “substantial assistance to the United States” in the investigation or prosecution of other persons. While in polite company, the idea of “snitching” has a negative connotation, for federal prosecutors and law enforcement agents, it is a way of life. And if pushing defendants to “snitch” was not bad enough, a “cooperating” defendant expecting a sentence reduction for “substantial assistance,” under either U.S.S.G. Section 5K1.1 or Federal Rule of Criminal Procedure 35 is literally at the mercy of federal prosecutors.

Under these provisions, only the Government can file a motion for a sentence reduction. Unless a motion is filed, the Court lacks jurisdiction to even consider the matter. And a defendant who wants to challenge the Government’s decision not to file a motion has an almost impossible burden of proof. In Wade v. United States, 504 U.S. 181 (1992), a unanimous Supreme Court held that judicial review is limited to situations where the defendant makes a “substantial threshold showing” that the decision not to file constituted a violation of a defendant’s constitutional rights, for example, because it was based on improper consideration of race or religion, or otherwise was “not rationally related to any legitimate government end.” Wade, 504 U.S. 181 (1992). Therefore, the Court concluded that:

It follows that a claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing. Nor would additional but generalized allegations of improper motive.

Wade, 504 U.S. at 186 (emphasis added).

And if this jurisprudence were not a sufficient barrier to bringing a challenge to the Government’s decision, in practice, many (if not the majority) of plea agreements in federal court state that the decision to file a substantial assistance motion is within the “sole and exclusive” discretion of the prosecution. In such situations, the Government has successfully argued that there is no judicial review of the decision making process and some courts have agreed. As the Eleventh Circuit concluded:

where a plea agreement states only that the government will file a Rule 35(b) motion if it determines, in its “sole” discretion, that the defendant’s cooperation qualifies as substantial assistance, the government does not breach the agreement by failing to file such a motion, and the district court has no jurisdiction to review the claim of breach.

United States v. Nance, 426 Fed. Appx. 801, 807 (11th Cir. 2011). Accord United States v. Tomlin, 2013 WL 12214126 (S.D. Fla).

There have been cases where district court judges have decided that the failure to file a substantial assistance motion (even when in the Government’s sole discretion) was subject to judicial review, but that is clearly the minority view. See, e.g., United States v. Timm, 450 F.Supp.3d 195, 215 (N.D.N.Y. 2020)(“the Government’s refusal to move under § 3553(e) was not rationally related to any legitimate Government end. It was, in fact, based upon an unconstitutional motive, to wit, limit this Court’s ability to render a fair and just sentence” to the defendant).

Under these circumstances, prudent defense counsel should be sure to advise their clients how the substantial assistance process operates, the discretion left to prosecutors, and the limited scope of judicial review. Because cooperation is the only path to a significant sentence reduction, the overwhelming majority of defendants will probably decide to proceed with cooperation, notwithstanding the risks.

Robert Feitel is a former federal prosecutor and now defense attorney in private practice specializing in the representation of defendants in international criminal cases. He can be reached through his website: www.rfeitellaw.com