Written by attorney Jeffrey Tyson Hammerschmidt


Sentencing for drug possession and for drug trafficking and conspiracy in federal court carries mandatory minimum sentences of five years or ten years, depending upon the type and quantity of the drug(s). There are only two ways that a Federal Judge can sentence a defendant to less time than the mandatory minimum. The first is where the defendant qualifies for the “safety valve" under 5C1.2 of the Federal Sentencing Guidelines. For more information on the safety valve, please see my article entitled “The ‘Safety Valve’ in Federal Drug Cases."

The only other method for obtaining a sentence that is lower than the mandatory minimum is by providing “substantial assistance" to the Government under 5K1.1 of the Federal Sentencing Guidelines.

What is “substantial assistance"? For the most part, it is whatever the prosecutor says it is; only the prosecutor can make a motion for the sentence to be reduced based upon substantial assistance. The attorney representing a defendant who is considering the decision to provide substantial assistance needs to do his homework. Some prosecutors have a reputation of fairly rewarding a defendant who provides assistance to the Government. Other prosecutors have a lesser reputation.

More specifically, “substantial assistance" is information that the defendant provides to the Government regarding the criminal activities of others. These other persons can be co-defendants in the same case, or they can be persons not yet known to law enforcement to be involved in criminal activity. The information can even be provided regarding criminal activity that would be prosecuted by state prosecutors rather than federal prosecutors. The amount of the reduction in the sentence for substantial assistance can range from 5% to 50 %. The amount of the reduction depends upon how valuable the information is to prosecutors. To give an example, if a street dealer provides information on another street dealer, the reduction in sentence will be less than if the information was provided to the person who supplies the street dealer. And if the defendant testifies in court for the prosecution or does undercover work for the prosecution, it will likely result in a greater reduction in sentence than if such work is not required.

It is important for a criminal defense attorney to advise his client of the risks of providing substantial assistance to the Government, and to protect his client from risk to the extent possible. For example, a person who provides information against high level drug dealers or gang members may be labeled a snitch in prison that may subject him to physical harm or even death. There are many occasions where the best deal for the client may be to provide no information to the Government or to provide only minimal information that will result in a slight reduction in sentence to minimize the chance that a person will be labeled a snitch. For a defendant who is considering providing “substantial assistance," the timing of the offer to provide information can be critical. If a defendant waits too long, the information may be stale and worthless to the Government. Or the information could be worthless because other co-defendants have already provided the same information.

The best course of action for a person accused of a federal drug crime is to obtain a criminal defense attorney skilled in federal drug defense as soon as possible after the arrest.

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