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Rule 35 Motions in Federal Court


11/2/2020

If you have been sentenced in federal court and are now serving a sentence of incarceration in the Bureau of Prisons (BOP) and have cooperated with the federal government to help them attempt to prosecute another individual, a skilled Philadelphia federal criminal defense attorney can file a Rule 35 motion to reduce your sentence or request the government file a Rule 35 motion on your behalf. Although this motion is not always successful and is no guarantee of receiving a reduced sentence, you can significantly improve your chances with the right legal counsel on your side.

What Is a Rule 35 Federal Motion?

Rule 35(b) of the Federal Rules of Criminal Procedure allows a federal prosecutor to ask the sentencing court to reduce the incarcerated individuals previously-imposed sentence. Simply stated, a Rule 35 motion is essentially a plea for leniency. A knowledgeable Philadelphia criminal appeals lawyer can help you determine if you are eligible for this plea and if it might benefit you.

A motion of this magnitude requires that after their sentencing, the defendant is extremely cooperative in providing the federal prosecutor “substantial assistance” in prosecuting other alleged federal criminals.

Some sentencing judges will account for all the defendant’s cooperation, whether before or after their sentencing. However, suppose the defendant received a reduction of their initial sentence for cooperation. In that case, they cannot be credited twice for the same assistance before sentencing under a Rule 35 motion. Defendants are not allowed to use their pre-sentence assistance for a reduced sentence after their incarceration. If they cooperate considerably once incarcerated, they could receive a reduction of their sentence under Rule 35.

Does a Philadelphia Criminal Defense or Appeals Attorney File a Rule 35 Motion?

No, a Philadelphia criminal defense lawyer can’t file this motion. Under the Rule itself, only the federal prosecutor can file it, that is, someone in the United States Attorney’s Office. In some rare circumstances, the court will allow a defendant or a Philadelphia criminal appeals attorney on their behalf to file the motion. For example, if the prosecutor refused to file this motion based on constitutional protections such as race, religion, and gender, the defendant or their attorney could file the Rule 35 motion. This, however, is unusual.

Does Cooperation Guarantee a Reduced Sentence?

It’s crucial to note that a Rule 35 motion applies only if your cooperation is “substantial.” Since it is subjective to determine what is substantial, this can vary from one prosecutor to the next.  What met the standard of “substantial” in one case might not in the next. However, when you hire a seasoned Philadelphia criminal defense lawyer, they can use their expertise to your benefit for a Rule 35 motion.

Merely providing prosecutors or law enforcement agencies information about other individuals might not be considered “substantial assistance.” The information must lead to an arrest, indictment, or conviction of someone else.

If you provided truthful information that helped prosecute another person, your actions fall under what the federal courts have deemed to be “substantial cooperation.” If you testify against another defendant, all prosecutors would consider this type of cooperation “substantial.”

Can a Federal Court Go Below a Mandatory Minimum Sentence for a Rule 35 Motion?

You might be pleasantly surprised to learn that the answer is yes, a federal judge may sentence a defendant below any applicable mandatory minimum if the government files a Rule 35 motion and the court grants it. The Rule explicitly states that if a judge previously-imposed a mandatory minimum sentence, the court could reduce the sentence to less than the mandatory minimum sentence.  Since some charges carry a 10-year or 5-year mandatory minimum sentence, this is significant.

When the prosecutor files a Rule 35 motion, the sentencing judge can reduce the defendant’s sentence below the federally imposed mandatory minimum. The court can give a reduced sentence if it deems it “reasonable” and congruent with their cooperation level.

How Much Can a Rule 35 Motion Reduce a Sentence?

Prosecutors will provide a recommendation to the sentencing judge for how much of a reduction they feel is appropriate based on the defendant’s cooperation. However, it is only a recommendation, and the court isn’t obligated to follow it.

Your Philadelphia criminal defense attorney might ask the court to give you a more significant reduction than what the prosecutor is requesting based on your cooperation. The court can choose to go with the prosecutor’s recommendation, with what your attorney is asking for, or any other amount of reduction they deem warranted. Remember that every case is different. The judge is only required to reduce your sentence based on your level of cooperation with the prosecution.

The Pros and Cons of Cooperating to Get a Rule 35 Motion

Just like other legal situations, there are both pros and cons to cooperating with the prosecution to attain a Rule 35 motion in federal court. It is imperative that you discuss these with your Philadelphia criminal appeals lawyer to determine if this motion is right for you.

Of course, the benefit of receiving such a motion is getting out of prison sooner. You could also have your supervised release or probation reduced as well.

By cooperating and providing information, you risk putting yourself in danger because you helped the government. Although this isn’t a common issue, it should be considered in your decision and discussed with your attorney.

If necessary, the federal government and local law enforcement agencies can put safeguards in place to protect you. While in custody and cooperating against another person in custody, separation orders can be issued, preventing any future contact between the other individuals(s) involved.

The federal government can even place you in a witness protection program if the rare need arises.

Discuss Your Options With a Knowledgeable Philadelphia Criminal Appeals Attorney

If you have questions about cooperating with the federal government, Rule 35 motions, or sentence reductions, look no further than Wimmer Criminal Defense. We have the knowledge and experience to determine if a Rule 35 motion would be beneficial for you and can evaluate your risks. You can even get an idea of how much of a sentence reduction you might be eligible for during your consultation.

Reach out to us today at 215-712-1212 or use our convenient online contact form to get your free federal criminal case review.