What is a Rule 35 and 5K1 motion?
These are motions filed by a Federal Prosecutor based on a defendants Substantial Assistance to the Government. Basically, in short, a defendant can reduce their prison sentence by cooperating with the Government either on there on case against co-defendants and or against any other persons in other unrelated criminal activity. This usually means either securing guilty pleas or testifying against co-defendants or information that leads to an indictment or arrest of other individuals.
A Rule 35 Motion
Is filed only when the defendant has already been sentenced in his or her underlying case. There are times when the defendant is sentenced and is still in the process of cooperating, and therefore would receive a Rule 35 when the information given leads to an arrest or indictment. These can also be done by a “Third Party”, meaning while the person is in prison, a friend or family member can arrange with the Government to do a case on suspected illegal activity.These motions can substantially reduce a persons sentence and also eliminate the minimum mandatory if there is one. A lot of times there will be a Statutory minimum mandatory on drug trafficking cases, such as 5, 10 or maybe 20 years. Even if the guidelines only say the person should be looking at 72-80 months, if there is the 10 year minimum mandatory that will force the Judge to at least 120 months. It’s a big difference, but cooperating and receiving a Rule 35 can get you far below that 120 month sentence.
A 5K1 Motion
Is filed by the Federal Prosecutor before the defendant is sentenced. This is based on cooperation by defendant that resulted in substantial assistance. Most commonly, these are from when defendant cooperate against there co-defendants.
There are consulting firms out there to assist in doing these for you. They will organize information you to help the Government on the defendants behalf. The results can range from 20-60% off the original sentence and avoid any minimum mandatory sentences.