Federal Sentencing: A Second Bite of the Apple

Federal Sentencing: A Second Bite of the Apple

I love the law. Everyday lawyers across the country research issues that their clients are facing. Each day we learn something new. Maybe it's a new case that comes out changing the way we look at a particular fact scenario. Maybe it's a change in the law, or maybe it's something that we have never heard of before. That's why I love the law – because it's always changing; the law is a living, breathing thing that grows every day. About 35% of my daily practice is in Federal Criminal Law. What I see in courtrooms are lawyers who seem to rest on the advice of other lawyers when it comes to Federal sentencing. This is fine if the lawyer is using this advice as a guideline; however, to face a Judge and a Federal Prosecutor that is backed by the enormous resources of the Federal Government on "advice" alone is a recipe for disaster.

So, I figured I'd start blogging about my exploits in the federal criminal system or the interesting things that I see happening to others in the Federal criminal system. I'll never blog about a specific client, but I will blog about issues regarding Federal criminal charges in common areas like Felon in Possession of a Firearm, conspiracy to distribute some form of illegal drug, etc. all the way to Theft of Mail and sentencing issues. Some of this may be rather technical, so if you don't understand it just drop me an email. Also, this is not meant to be legal advice. Talk to an attorney and NEVER go it alone.

Federal Sentencing: I was curious as to how and when I could maximize the effect of a downward departure motion and how it could best be used to help a client. Cooperation with the government is a very real and commonly used solution to having to spend a lot of years in a Federal Prison. I know what you're thinking, "I ain't no snitch!" Well, the reality is that most everybody charged in your case is. So, if this becomes a viable choice then you need to know your options. The §5K1.1 Motion seeks to allow a downward departure from the guidelines at sentencing based on defendant's cooperation. This is designed to reward cooperation given before sentencing. Rule 35(b) is designed to reward cooperation rendered after sentencing. Some courts of appeals decisions suggest that a defendant may obtain the benefit of both. United States v. Alvarez, 115 F.3d 839, 842 (11th Cir. 1997) (§5k1.1 and Rule 35(b) work in tandem to give government two opportunities to reward defendant's substantial assistance); compare United States v. White, 71 F.3d 920, 896, 925-26 (D.C. Cir. 1995) (court must rule on §5K1.1 motion before imposing sentence).

From now on I'll consider seeking a second bite of the apple by asking the government to file a Rule 35(b) motion when my client continues to furnish substantial assistance after receiving a downward departure pursuant to the government's §5K1.1 motion at sentencing. Just know there is a time frame on the Rule 35(b) motion. And always get in writing first.