The Use of Federal Rule of Criminal Procedure 35(b)

Offenders who cooperate with the government in its efforts to prosecute others can receive credit for their “substantial assistance” in at least two ways. The most common and most analyzed method is through a substantial assistance motion that is filed pursuant to §5K1.1 of the Sentencing Guidelines at the time the offender is sentenced. If granted, the court may impose a sentence below the advisory guideline range and, if accompanied by a motion pursuant to 18 U.S.C. § 3553(e), below an otherwise applicable mandatory
minimum penalty.1
Offenders may also receive credit for substantial assistance after they have been sentenced. Federal Rule of Criminal Procedure 35(b) permits a court, upon the government’s motion, to impose a new, reduced sentence that takes into account post-sentencing substantial assistance, and that new sentence may go below the recommended guideline range and any statutory mandatory minimum penalty. These Rule 35(b) reductions are, in most respects, identical to §5K1.1 departures, as both require substantial assistance
and both require a government motion. The only significant difference between the two types of motions is timing: Rule 35(b) motions are made after the original sentencing...

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Federal Rules of Criminal Procedure

2021 Edition

(b) Reducing a Sentence for Substantial Assistance.

(1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.

(2) Later Motion. Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved:

(A) information not known to the defendant until one year or more after sentencing;

(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or

(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.

(3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant’s presentence assistance.

(4) Below Statutory Minimum. When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.