5K1.1 vs. 3553(e) vs. Rule 35 vs. “Safety Valve” Primer
A basic overview of how 5K1.1, 3553(e) and Rule 35 motions, along with the "safety valve," interact for the purposes of federal criminal sentencing.
IntroductionMuch has been written about the above terms, primarily because the overwhelming majority of defendants in federal court are convicted (either by plea or trial) and find themselves sentenced in some fashion, and all of the above terms pertain to sentencing. But, the purpose of this guide is to provide an overview of all of these terms, and how they interact, as no one source (other than the Sentencing Guidelines Manual itself) seems to address all of them in one place.
To begin, this guide assumes one knows how to calculate a base offense level under the federal sentencing guidelines and how the 18 U.S.C. 3553(a) factors play into a final sentence. One should also understand the difference between the terms "departure" and "variance": a "departure" is a sentence that falls outside the calculated guidelines range, whereas a "variance" is a sentence that falls outside the calculated guidelines range based on the 18 U.S.C. 3553(a) factors.
5K1.1A 5K1.1 motion - the name deriving from the Sentencing Guidelines' section authorizing such a motion - is one brought by the Government to "depart" below the defendant's calculated guidelines range based on "substantial assistance" to the Government. This means the defendant has cooperated with the Government, and, in the Government's estimation, such cooperation has substantially assisted the Government. A 5k1.1 motion, however, cannot authorize a sentence below a statutory mandatory minimum. So, for example, in the case of a defendant facing a guidelines range of 33 to 41 months (base offense level 20, criminal history category I) for possessing with intent to distribute (21 U.S.C. 841) between 300 to 400 grams of cocaine, a 5K1.1 motion would authorize a sentence below 33 months' imprisonment. Therefore, a defendant could very likely expect a shorter sentence because of the Government's sponsorship. If, for example, the 5K1.1 motion calls for a two-level reduction, the defendant now stands facing a sentence of between 27 to 33 months' imprisonment.
But what about the case where a defendant is otherwise subject to mandatory minimums? For instance, in the case of a defendant facing a guidelines range of 97 to 121 months (base offense level 30, criminal history category I) for possessing with intent to distribute between 5 and 15 kilograms of cocaine, a 5K1.1 motion would theoretically allow a sentence below 97 months' imprisonment - typically in the order of a two-level reduction, bringing the defendant's guidelines range to 78 to 97 months. However, the court would still be bound by the 10-year (120 months') statutory mandatory minimum, and, thus, the 5K1.1 motion would seem to have no practical value.
18 U.S.C. 3553(e)A motion under 18 U.S.C. 3553(e) is one brought by the Government to depart below a statutory mandatory minimum based on "substantial assistance" to the Government. Although based on the same qualifying behavior, it is separate from a 5K1.1 motion (but often brought in conjunction with a 5K1.1 motion). The 3553(e) motion nevertheless requires the court to sentence in accordance with the guidelines-appropriate sentence.
So, returning to the above example of the defendant facing a guidelines range of 97 to 121 months (base offense level 30, criminal history category I) for possessing with intent to distribute between 5 and 15 kilograms of cocaine, the 3553(e) motion would allow a sentence below the statutory 10-year mandatory minimum - as long as it is a guidelines-authorized sentence. This means the defendant would now stand facing a sentence of between 97 to 120 months' imprisonment, i.e. that portion of the level 30 guidelines sentence below the mandatory minimum.
Can this defendant's sentence go lower? Yes. Remember it seemed this defendant's 5K1.1 motion seemed to have no effect by itself? Not so when combined with the 3553(e) motion. If, in this case, the Government files both the 3553(e) motion and the 5K1.1 motion (we'll assume it asks for a two-level reduction), the court can now actually impose a sentence as low as 78 months' imprisonment because that would be both below the statutory mandatory minimum and within the defendant's guidelines range.
Rule 35 MotionAs a practical matter, if the Government files 5K1.1/3553(e) motions prior to sentencing (as it must, to be considered at sentencing), sentencing is often adjourned to complete the defendant's assistance so that the Government may appropriately judge the level of that assistance in terms of its net benefit, i.e. other convictions or other charges filed. But what if the defendant provides substantial assistance to the Government after sentencing? A Rule 35(b) Motion (named for Rule 35 of the Federal Rules of Criminal Procedure) is a post-conviction motion made by the Government to reduce a defendant's sentence based on substantial assistance. It must be made within one year of sentencing, unless one of the specified grounds applies, such as the defendant could not have known of the relevant information within one year of sentencing. In practice, though, the Government may very likely file some sort of "place holder" motion within one year of sentencing to preserve the right but allow it to evaluate the assistance in time. The Rule 35(b) motion also allows the Government to point to assistance the defendant provided prior to sentencing. Like a 3553(e) motion, a Rule 35(b) motion also allows a court to depart below the statutory minimum - but the Rule 35(b) motion must be filed with reference to 18 U.S.C. 3553(e) to depart below the mandatory minimum.
"Safety Valve"The "Safety Valve," found at 18 U.S.C. 3553(f), is a mechanism that was intended by Congress to allow some relief from the mandatory minimums for those individuals who might be considered something akin to "fringe" defendants caught up in large cases. For example, because a federal drug conspiracy charge carries with it the underlying possession base offense level, a defendant who played a minor role in a major conspiracy may nevertheless properly be charged with the conspiracy if he or she meets the required elements of the crime, thus subjecting him or her to the full range of sentencing and any applicable statutory mandatory minimums. But, the "safety valve" provision allows such a defendant to escape the harshness of the mandatory minimum if the defendant can meet the requirements.
The requirements of the safety valve are that (1) a statutory mandatory minimum applies under 21 U.S.C. 841, 844, 846, 960 or 963; (2) the defendant has 0 or 1 criminal history points; (3) there was no violence or use of guns alleged; (4) the offense did not result in death or serious injury; (5) the defendant is not considered a leader or organizer; and, (6) by the time of sentencing, the defendant must have provided the Government with information about the defendant's offense and relevant conduct.
A few comments about the requirements are in order. First, but perhaps not obvious, application of the safety valve does not require a motion by the Government; the court must apply the safety valve if the defendant qualifies. That said, the Government may oppose application of the safety valve at sentencing if, for instance, the Government feels the defendant was not truthful or complete about participation in the offense or relevant conduct. Second, the amount of information disclosed necessary to gain the safety valve is far less than that needed to constitute substantial assistance. An attorney can evaluate the specific facts of a case to explain what will be necessary, but a simple way of thinking of it is that, to achieve the safety valve, a defendant will have to divulge everything about his or her participation in the specific offense (and any other known relevant conduct), whereas to constitute substantial assistance, a defendant will need to go far above and beyond that, often providing the Government with known information about further, uncharged conduct not related to the charged offense. Third, in being truthful and complete, the defendant need not complete a formal "debriefing" with the Government, as in the way a defendant often undergoes a "proffer session" if he or she cooperates and seeks to provide substantial assistance. A written proffer may be sufficient, but a mere submission to a probation officer is not. The danger in doing an oral proffer session is that there is the opportunity for the Government to try and turn a safety valve proffer into a cooperation proffer. Finally, but not obviously, a defendant may fairly claim the safety valve even after trial, so long as all other factors are met and it is done "not later than the time of the sentencing hearing."