5K Motion in Federal Criminal Cases


11/19/2018

You’ve likely seen movies in which a prosecutor offers a mobster a deal if they give up information about other criminals. While this is a common and expected theme in movies and TV shows, it also happens in reality – and more often than one might expect. If you are facing federal criminal charges, you should be aware of all your rights and options under the law, including options for sentence reductions such as a 5K motion. For this reason, you should seek the assistance of a skilled federal criminal defense lawyer as soon as possible to understand every option available to you in your case.

At Wimmer Criminal Defense in Philadelphia, we are thoroughly familiar with the federal justice system and how to seek the best possible outcome for each and every client. If you believe you are under investigation, have been arrested, or are facing federal charges, you should not wait any longer to get the right legal defense. Call today at 215-712-1212 or contact us online for a free consultation.

Sentence Reductions Under Federal Law

§5K1.1 of the United States Sentencing Guidelines allows federal criminal courts to stray from the typical sentencing range and order a lesser sentence for a defendant who provides “substantial assistance to authorities.” Substantial assistance involves cooperating with an investigation or the prosecution of someone else suspected of committing a federal offense.

Initially, federal judges were required to strictly abide by the sentencing guidelines when ordering sentences for convicted offenders. However, in 2005, the Supreme Court of the United States (SCOTUS) ruled in U.S. v. Booker that the guidelines would only be advisory and not mandatory. Still, judges must use the guidelines as a starting point. In addition, certain federal statutes impose mandatory minimum sentences for certain offenses. §5K1.1 allows judges to depart downward from both the guidelines and mandatory minimums when appropriate.

  • A judge will determine the appropriate reduction in sentencing by examining the following factors:
  • The usefulness and significance of the defendant’s assistance to the government
  • The truthfulness, reliability, and completeness of the information the defendant provided
  • The nature and extent of the assistance
  • Whether defendants or their families suffered any injury or faced the risk of injury due to the assistance
  • Whether the defendant provided timely assistance

A sentence reduction based on assistance should be considered separately from other considerations, such as a defendant’s acceptance of responsibility. Judges should also strongly consider the prosecutor’s evaluation of the defendant’s assistance, as the significance of assistance can be difficult for judges to measure. Assistance can involve a wide range of conduct and judges should evaluate a defendant’s conduct on an individual basis when determining a lower sentence.

What is a 5K Motion?

A “5K motion” is a letter filed by a federal prosecutor with the sentencing court requesting the court to depart downward from sentencing guidelines due to substantial assistance under §5K1.1. In order to get a 5K motion, a defendant must agree to cooperate with the prosecutor and provide significant and honest information that may help with the prosecution of others.

The government is serious about catching more criminals, and prosecutors commonly use current defendants as a resource to do so. The prosecutor can offer a defendant a proffer session, in which the defendant agrees to answer questions and provide information to the prosecutor. These sessions are governed by proffer letters, which are written agreements between a prosecutor and defendant that lays the ground rules for the session, including assurance that certain information will not be used against the defendant. After a proffer session, the prosecutor will evaluate whether the assistance provided warrants a 5K motion.

How a Federal Criminal Defense Attorney Can Help

The prosecution often seeks cooperation when a defendant is suspected to be part of a large-scale criminal scheme, including white collar crimes, drug trafficking, racketeering, and similar offenses. This means the defendant who may cooperate is likely facing extremely serious charges with a potentially long prison sentence if convicted. Every person in this situation should have an aggressive and experienced federal criminal defense attorney handling their case, whether they may cooperate or not.

A 5K motion is one of the most powerful tools for federal defendants to receive a reduced sentence. For this reason, many defendants rush to agree to proffer sessions and tell prosecutors everything they know in hopes of getting a 5K motion. However, the decision to cooperate with the government should always be carefully considered, and a defense attorney can help you weigh the possible benefits and drawbacks of agreeing to provide assistance.

When you think back to those mob movies, you may remember how people talked about “snitches” who helped turn others in. Often, their lives – and the lives of their family members – were in danger. Even with a reduced sentence, a person may still have to serve some prison time, often in the same facility as others who are aware of their cooperation. It is a reality that giving information about other criminals to the government can put you in harm’s way. An attorney can help secure necessary protections to reduce the risk of harm, such as keeping any government meetings under wraps or getting sentences motions sealed to hide the reasons for the sentencing reduction.

An attorney can also help protect your interests in proffer sessions. Many defendants don’t realize that proffer agreements do not always fully protect them, and they may still reveal information that can lead to additional charges against them. Having your attorney represent you when agreeing to a proffer session and during the session can help ensure that you are not doing any additional damage to your case by cooperating.

Contact a Philadelphia Federal Criminal Defense Attorney as Soon as Possible

Federal crimes have harsh penalties, and your first call should be to a knowledgeable federal criminal defense lawyer who can help you through every stage of your case, including the decision whether to cooperate and seek a 5K motion. At Wimmer Criminal Defense, we provide serious defense representation because we realize how serious federal criminal cases can be. Call 215-712-1212 or contact us online right away.