Substantial Assistance Under 5K1.1

Substantial Assistance Under 5K1.1: The Only Way Below Mandatory Minimums (If the Prosecutor Lets You)

Substantial assistance under USSG § 5K1.1 is the only way for most federal drug defendants to get below mandatory minimums – but only the prosecutor can make it happen. You cannot ask for it. You cannot demand it. You cannot prove you deserve it. The judge has no power to reward your cooperation without the prosecutor’s motion. A defendant can provide incredible assistance – names, evidence, testimony that builds entire cases – and get nothing if the prosecutor decides not to file.

This is the fundamental trap of federal cooperation: the person who can reduce your sentence is the same person who charged you. You’re asking your opponent for mercy based on how helpful you are to them. And here’s what destroys minor players in federal drug cases – kingpins often serve less time than couriers because the kingpin knows everyone and has information to trade. The courier knows nothing. The kingpin gets the 5K1.1 motion. The courier serves the mandatory minimum. The leader of the conspiracy walks out while the driver who made two deliveries serves a decade.

Understanding substantial assistance means understanding that the system was designed this way deliberately. 74.9% of federal judges say prosecutors have “the greatest influence on the final guideline sentence.” Not the guidelines themselves. Not judicial discretion. The prosecutor. Substantial assistance puts defendants at the complete mercy of the prosecution – and that’s exactly how Congress intended it to work.

The Two-Motion Trap

Heres what most defendants dont understand about getting below mandatory minimums.

5K1.1 alone cannot breach a mandatory minimum. The sentencing guidelines allow a judge to depart below the guidelines range based on substantial assistance. But mandatory minimums are statutory floors set by Congress – not guidelines. To go below a mandatory minimum, you need TWO separate motions: a 5K1.1 motion under the sentencing guidelines AND a § 3553(e) motion to breach the statutory floor.

Most defendants dont realize this distinction. They think “cooperation” means they can get below the mandatory. But if the prosecutor files only a 5K1.1 motion and not a § 3553(e) motion, the judge can reduce your sentence to the mandatory minimum – but not below it. You could get a 40% reduction under 5K1.1 and still serve the full 10-year mandatory becuase no § 3553(e) motion was filed.

Both motions require prosecutor approval. Both are within prosecutorial discretion. Both can be denied for any reason – or no reason at all. The judge is powerless without both.

Only the Prosecutor Can File

This is the core reality that governs everything about substantial assistance.

A “substantial assistance” reduction can only come about if the prosecutor asks the judge for it. You can moan and whine, outline your days of cooperation, and the judge is powerless to reward your assistance without a request from the prosecutor. The motion is not a right you can demand – its a privilege granted at the governments discretion.

Courts have recognized extremely limited circumstances were a prosecutor’s refusal to file can be challenged:

• punishment for exercising a constitutional right
• bad faith in fulfilling a cooperation agreement
• or unconstitutional motives like race or religion

Thats it. If the prosecutor simply decides your cooperation wasnt “substantial enough” or that there filing policy dosent cover your situation, your stuck.

In Wade v. United States, the Supreme Court confirmed that judicial review of prosecutor’s refusal to file is extremly limited. You cant challenge the decision becuase you disagree with it. You cant challenge it becuase you think you deserved it. You have to prove an unconstitutional motive – and proving that is nearly impossible.

What “Substantial Assistance” Actually Requires

Heres what prosecutors mean when they talk about “cooperation.”

There not talking about answering a few questions. There talking about a commitment that can span months or years and may require you to do things that feel impossible. Substantial assistance means providing help in the investigation or prosecution of OTHERS – not just information about your own crime. The government already knows about your crime. They want crimes they dont know about.

This can include going undercover. Cooperators are sometimes asked to participate in controlled purchases, wear a wire, or gather evidence on people they know. This is dangerous and not required of everyone, but it happens.

This can include testifying. Cooperators often have to testify in court or before grand juries against people they provided information about. This means sitting in a courtroom, looking at your former associates, and telling a jury what they did.

This can include ongoing availability. Even after your sentenced, you may be called back to testify in trials that arise from your cooperation. Your obligation dosent end at sentencing.

The Timing Trap

Heres the timing reality that destroys defendants who wait.

Prosecutors value the earliest cooperator the most. The first person to cooperate gives the government the most time to build cases, flip additional people, and prepare for trial. Every day you wait to decide is a day your co-defendants might be sitting in proffer sessions giving up information about YOU.

The earliest cooperator also has information thats still fresh, still useful, still actionable. Wait six months and your targets may have fled the country. Wait a year and the evidence may have been destroyed. Wait untill trial and your information is largely worthless becuase the government has already built there case.

This creates a prisoners dilemma. You dont know what your co-defendants are doing. They dont know what your doing. But someone is going to cooperate first – and that person gets the most valuable 5K1.1 motion. If its not you, it might be against you.

The Kingpin Paradox

Heres the uncomfortable truth about who actually benefits from substantial assistance.

Minor players often serve longer then kingpins becuase they have nothing to trade. The leader of the conspiracy knows everyone – names, roles, quantities, connections, other operations. The leader has information thats genuinely valuable to prosecutors. The leader cooperates and gets a 5K1.1 motion.

The courier knows almost nothing. They drove a car. They made a delivery. They dont know the supply chain. They dont know the organizational structure. They cant provide information about anyone important becuase they were kept in the dark about the operation.

Stephanie George became a poster child for this reality. She recieved a lifetime sentence for cocaine her boyfriend hid in her attic. Her boyfriend – the actual dealer who ran the operation – got less time becuase he cooperated. He knew everyone. He had information. She had nothing to trade.

The system rewards those with the most information. The people with the most information are usualy the most culpable. Minor players, despite there minor role, serve mandatory minimums becuase they have nothing valuable to offer.

The Proffer Process

OK so heres how cooperation actualy begins in federal drug cases.

Before you become a cooperating witness, you go through proffer sessions – meetings were you provide information to prosecutors to demonstrate what you know. These sessions are conducted under “proffer agreements” that limit how your statements can be used against you.

But heres the trap. Proffer agreements are not immunity agreements. If you lie during a proffer, if your statements are inconsistent with trial testimony, if you breach the cooperation agreement, your proffer statements can come back to haunt you. Defendants have had there proffer statements used against them when cooperation fell apart.

The proffer process also reveals your hand. Once you tell prosecutors what you know, you cant take it back. If they decide your information isnt valuable enough, youve given away your leverage for nothing. Theres no refund on disclosed information.

This is why experienced defense counsel carefuly evaluate what information a client has BEFORE entering proffer negotiations. You need to know your hand is strong enough to play before you show your cards.

The Cooperation Agreement Reality

Heres what a cooperation agreement actualy contains.

A written cooperation agreement typically specifies:

• what the government expects you to do
• what crimes your pleading guilty to
• what the government will recommend at sentencing
• and under what circumstances the government can withdraw from the agreement

But notice whats missing. Most cooperation agreements dont guarantee a 5K1.1 motion. They say the government “may” file a motion if cooperation is deemed satisfactory. The determination of “satisfactory” is almost entirely within the governments discretion.

Some agreements are more specific. They might state that the government “will” file a 5K1.1 motion if certain conditions are met. These agreements provide more protection. But even then, the amount of departure is left to the judge – the agreement dosent specify how much your sentence will be reduced.

Get the agreement in writing. Read it carefuly. Understand what it does and dosent promise. Many defendants are shocked to learn there cooperation agreement didnt guarantee what they thought it guaranteed.

The Statistics Reality

Federal data reveals how substantial assistance actualy works in practice.

In fiscal year 2024, only 18.5% of fentanyl defendants recieved substantial assistance departures. Compare that to 32.5% who recieved safety valve relief. Despite the prevalence of cooperation in federal cases, most defendants dont get the 5K1.1 motion.

The average sentence for defendants who recieve only a 5K1.1 departure is 52 months. For defendants who recieve a Rule 35 reduction after sentencing, the average is 83 months – higher becuase they started with longer sentences. Sentence reductions of 30-60% are common with substantial assistance, but that assumes the motion is filed in the first place.

These statistics reveal the fundamental truth: cooperation is common, but 5K1.1 motions are not guaranteed. Many defendants cooperate and get nothing. Many provide information that dosent result in prosecutions. Many have there assistance deemed “not substantial enough.”

The Safety Valve Alternative

For some defendants, safety valve is a better path then substantial assistance.

Safety valve under 18 U.S.C. § 3553(f) requires no testimony against others. You dont have to wear a wire. You dont have to testify at trial. You dont have to become a cooperating witness. If you qualify – limited criminal history, no violence, no leadership role, truthful disclosure about your own conduct – the judge must sentence you below the mandatory minimum.

The key difference: safety valve is NOT prosecutor discretion. If you meet the five criteria, the judge is required to apply it. The prosecutor cant block it by refusing to file a motion. Safety valve is a right; substantial assistance is a privilege.

Some defendants pursue both. They qualify for safety valve and provide substantial assistance. This maximizes sentence reduction. But many defendants who dont qualify for safety valve – becuase of criminal history or other factors – have only one path: convince the prosecutor there cooperation is valuable enough for a 5K1.1 motion.

Rule 35: Post-Sentencing Cooperation

Your opportunity for substantial assistance dosent end at sentencing.

Rule 35(b) allows the government to move for sentence reduction based on substantial assistance provided AFTER sentencing. If you learn information while serving time, or if information you provided becomes useful after sentencing, the government can file a Rule 35 motion asking the judge to reduce your sentence.

The standard deadline is one year after sentencing. The government must file the motion within one year of when your sentence was oraly pronounced. After that, Rule 35 is generaly unavailable unless specific exceptions apply – information not known untill later, information that didnt become useful untill later, or information whos usefulness couldnt reasonably have been anticipated.

Rule 35 gives defendants continuing leverage. Cooperation dosent end when prison begins. But the same fundamental rule applies: only the prosecutor can file the motion. Without prosecutorial approval, the judge is powerless.

The Five Factors Courts Consider

When the government does file a 5K1.1 motion, the court considers five factors in deciding how much reduction to grant.

First, the significance and usefulness of the assistance. Did your information lead to arrests? Convictions? The dismantling of organizations? More significant results mean larger reductions.

Second, the truthfulness, completeness, and reliability of information or testimony. Did you tell the whole truth? Did you hold anything back? Incomplete or unreliable cooperation gets less credit.

Third, the nature and extent of the assistance. What did you actualy do? Just provide information, or also testify, wear a wire, go undercover?

Fourth, any injury or risk to the defendant or family. Cooperating against dangerous people carries risk. Courts consider the danger you faced.

Fifth, the timeliness of the assistance. Early cooperation is worth more then cooperation provided after the government already has there case built.

These factors are weighed by the judge, but only AFTER the prosecutor files the motion. Without the motion, no factor analysis occurs.

The No Parole Reality

Heres what makes the 5K1.1 decision so critical. Theres no parole in the federal system. Whatever sentence you recieve, your serving at least 85% of it.

A 30% reduction through substantial assistance can mean years of actual incarceration avoided. A defendant facing a 10-year mandatory minimum who gets a 5K1.1 motion and § 3553(e) motion might see there sentence reduced to 6-7 years – aproximately 5-6 years actualy served instead of 8.5 years. That difference is meaningful when every year is real time.

This is why the prosecutor’s discretion matters so much. The decision to file or not file a 5K1.1 motion can be the difference between serving a decade and serving half that.

Common Mistakes in Seeking Substantial Assistance

Defendants and counsel make predictable mistakes when seeking 5K1.1 motions.

Mistake 1: Assuming cooperation guarantees a motion. It dosent. You can provide substantial assistance and get nothing if the prosecutor decides not to file.

Mistake 2: Waiting to cooperate. Every day you wait reduces the value of your information. Early cooperators get the best deals.

Mistake 3: Not understanding the two-motion requirement. 5K1.1 alone cant breach mandatory minimums. You need § 3553(e) too.

Mistake 4: Overpromising what you know. If you claim to have information you dont actualy have, or if your information turns out to be wrong, you damage your credibility and may lose the 5K1.1 motion entirely.

Mistake 5: Not evaluating safety valve as an alternative. If you qualify for safety valve, you can get below mandatory minimums without becoming a cooperating witness.

The Physical Danger Reality

Heres what defendants must understand about the risks of cooperation.

Rachel Hoffman was a 23-year-old Florida State University graduate who was murdered while acting as a confidential informant in a botched drug sting. She was asked to buy drugs from dangerous people. The operation went wrong. She was killed. Florida passed “Rachel’s Law” in response.

Informants face real danger. There labeled snitches in prison, which can result in physical harm or death. There families may face retaliation. There communities ostracize them. Cooperation isnt just legally risky – its physicaly dangerous.

This risk is factored into the five-factor analysis, but it dosent change the fundamental reality: if you want substantial assistance credit, you have to provide assistance that exposes you to these risks.

What To Do If Your Considering Cooperation

If your considering substantial assistance, heres the realistic framework.

First, evaluate what you actualy know. Do you have information about other people’s crimes? Is it information the government dosent already have? Is it actionable?

Second, consider safety valve. If you qualify, it may be a better path – no testimony against others, no wire, no ongoing obligations.

Third, understand the timing. Cooperate early or watch your information lose value while co-defendants flip.

Fourth, get a written cooperation agreement. The agreement should specify what the government expects and what you can expect in return. Without a written agreement, your at even greater mercy of prosecutorial discretion.

Fifth, be completely truthful. Incomplete or false information destroys your credibility and your chances.

The Questions You Should Be Asking

“Will I get a 5K1.1 motion” is the wrong question. You cant know the answer.

The right questions are:

• What information do I actualy have about other people’s crimes?
• Does the government already have this information?
• Am I eligible for safety valve as an alternative?
• How early am I willing to cooperate?
• Am I prepared for the physical and social risks of being a cooperator?

These questions lead to realistic cooperation assessment. The “I’ll just cooperate and get a reduction” assumption leads to disappointment when the prosecutor decides otherwise.

Only the prosecutor can file. The judge is powerless without the motion. 5K1.1 alone cant breach mandatory minimums. Kingpins cooperate and walk while couriers serve decades. 18.5% get substantial assistance departures. Safety valve dosent require testimony against others. Stephanie George got life while her boyfriend got less. The earliest cooperator wins. Rachel Hoffman was murdered. 74.9% of judges say prosecutors have the greatest influence. Thats the reality of substantial assistance – the only way below mandatory minimums, if the prosecutor lets you.