Criminal Defense Lawyers

What Is a Rule 35 Motion in Federal Court?

You cooperated with the government. You gave them names, dates, information they needed. You testified against people you knew. And now you are sitting in federal prison wondering when that sentence reduction is coming. This is the reality for thousands of federal defendants who hear about Rule 35 motions and think it is their ticket to freedom. Some of them get what they expected. Many of them do not.

A Rule 35 motion is one of the few ways to reduce a federal sentence after you have already been sentenced. The federal system does not have parole. Once that judge announces your sentence, your options become extremely limited. Rule 35 exists under the Federal Rules of Criminal Procedure as a narrow exception that allows courts to either correct sentencing errors or reduce sentences when defendants provide substantial assistance to the government.

But here is what nobody tells you upfront: Rule 35 is not something you control. The government controls it. And the statistics show that defendants who rely on Rule 35 after sentencing get significantly smaller reductions than those who cooperate before sentencing. This article is going to break down exactly how Rule 35 works, what the actual numbers look like, and why the timing of your cooperation might be the most important decision you make in your federal case.

The Two Types of Rule 35 Motions

OK so Rule 35 actualy has two completly different parts and alot of people dont realize this. There confused because lawyers and websites talk about “Rule 35” like its one thing when its really two seperate tools with different purposes and different rules.

Rule 35(a) is about correcting errors. If the court made a arithmetical mistake, a technical error, or some other clear error when calculating your sentence, you can file a motion to fix it. But heres the catch – you only have 14 days from sentencing to do this. Thats it. Miss that window and your done. And this isnt for challenging a sentence you think is unfair. Its only for actual mistakes like the judge adding the numbers wrong or applying the wrong guideline.

Rule 35(b) is what most people mean when they talk about Rule 35 motions. This is the one for substantial assistance. If you helped the goverment investigate or prosecute another person, they can file a motion asking the court to reduce your sentence. Generally the goverment has one year from sentencing to file this motion, though there are exceptions we will get into.

The critical difference? Only the government can file a Rule 35(b) motion. You cannot file it yourself. Your lawyer cannot file it. If the prosecutor decides your cooperation wasnt good enough, or just dosnt feel like filing, there almost nothing you can do about it.

The Math Nobody Tells You: Rule 35 vs 5K1.1 Reductions

Heres were we get into what competitors dont tell you. Theres actualy hard data on this stuff from the U.S. Sentencing Commission and the numbers are probly not what your expecting.

According to the USSC’s study on Rule 35(b) usage:

• Rule 35(b) reductions average 37.1 percent off the original sentence
• 5K1.1 departures (cooperation before sentencing) average 52.6 percent off the guideline range
• Average sentence after Rule 35(b) reduction: 83 months
• Average sentence after 5K1.1 departure: 52 months

Let that sink in for a minute. Were talking about a 15 percentage point difference in reductions. If your facing a 10 year sentence, thats basicly the difference between getting out in 6 years versus 5 years. A whole extra year of your life because of when you cooperated, not wheather you cooperated.

And heres the kicker – defendants who get BOTH a 5K1.1 departure at sentencing AND a later Rule 35(b) reduction do the best of all. There getting the maximum benefit because they locked in there cooperation credit early and then added more later. If your only relying on Rule 35 after sentencing, your already starting from a worse position.

Why does this happen? A few reasons. First, prosecutors tend to be more generous when there negotiating a plea deal and your cooperation is fresh and immediately useful. Second, judges have more flexibility at initial sentencing than they do when modifying an existing sentence. Third, by the time a Rule 35 comes around (average 2.3 years after sentencing), alot of the urgency and goodwill has dissapeared.

Who Can File a Rule 35 Motion (Spoiler: Not You)

This is were the power imbalance becomes real clear. Under Federal Rule of Criminal Procedure 35(b), only the goverment can file a motion for sentence reduction based on substantial assistance. Your completly dependent on the prosecutor deciding to help you.

Can you force them to file? Basicly no. Courts have consistantly held that the goverment has almost total discretion over wheather to file a substantial assistance motion. The only exception is if you can prove the goverment refused to file based on an unconstitutional motive like race or religion. Good luck proving that.

What if the prosecutor promised to file a Rule 35 and then didnt? This is were things get intresting and also were alot of defendants get burned. If you had a written cooperation agreement that specifically said the goverment would file a Rule 35 motion, you might have a breach of contract argument. But if it was just a verbal understanding, or the agreement said they “may” file rather than “will” file, your probly out of luck.

The reality is prosecutors have enormous leverage in this situation. They know you want that reduction. They know you cant get it without them. Some defendants end up cooperating for years hoping for a Rule 35 that never comes.

Why the Government Might Never File Your Rule 35

So you cooperated. You gave them everthing they asked for. Why would the goverment refuse to file a Rule 35 motion? Theres actualy several reasons this happens and there important to understand before you start cooperating.

Your information wasnt “substantial” enough. The rule requires substantial assistance. Thats a judgment call and prosecutors get to make it. What feels substantial to you might not meet there threshold. Telling them about a drug dealer they already knew about? Not substantial. Providing the key testimony that convicted a cartel leader? Substantial. Theres a huge gray area in between.

Your information didnt lead anywhere. Even good information dosnt always result in prosecutions. Witnesses dissapear. Cases fall apart. Priorities change. If the goverment couldnt actually use your cooperation to prosecute anyone, they might decide it wasnt substantial enough to warrant a Rule 35.

You screwed something up. Maybe you lied during a proffer session and they found out. Maybe you tipped off a target. Maybe you got caught breaking rules in prison. Any of these things can kill your chances of getting a Rule 35 filed. Prosecutors remember and they hold grudges.

There was a personnel change. The prosecutor who made you promises might have left. The new prosecutor might not feel bound by whatever understanding you thought you had. This happens more then you would think, especialy in long investigations.

They just forgot about you. Look, prosecutors are busy. They have massive caseloads. After your case is done and your in prison, your not there priority anymore. Sometimes Rule 35 motions dont get filed because nobody is thinking about you.

What Actually Qualifies as “Substantial Assistance”

The term substantial assistance gets thrown around alot but what does it actualy mean? According to case law and the Sentencing Commission, there looking at several factors:

Usefulness of the information. Did what you provide actualy help? Did it lead to arrests, convictions, seizures of drugs or money, or the disruption of criminal organizations? Information that sounds good but dosnt produce results isnt worth much.

Truthfulness and completeness. Were you honest? Did you tell them everthing or did you hold back to protect certain people? Prosecutors can usually tell when your not giving them the full picture and it dosnt help your credibility.

The risk you took. Testifying against violent criminals is risky. Wearing a wire is risky. Prosecutors give more credit for cooperation that put you in genuine danger versus just handing over documents from your office.

The timeliness. Did you cooperate early when it was most useful, or did you wait until the goverment already had what they needed? Early cooperation is worth more because it helps them build cases. Late cooperation might not add much.

Most defendants who recieve Rule 35(b) reductions were convicted of drug trafficking offenses, often with mandatory minimums. This makes sense – drug cases often involve multiple defendants and ongoing criminal organizations, so theres more oportunity to provide substantial assistance against others.

Heres something else people dont always consider – the nature of your crime matters for how much cooperation oportunity you even have. If you were a lone actor who committed a one time offense, you might not have anyone to cooperate against. You cant provide substantial assistance if you genuinly dont have information about other criminals. This is why Rule 35 is most common in drug conspiracy cases and organized crime cases were there are multiple players.

The Timeline: When Can the Government File?

The general rule is the goverment has one year from sentencing to file a Rule 35(b) motion. But there are important exceptions that let them file later:

Exception A: Information you didnt know until more then a year after sentencing. If you learn something new that could help them, and you didnt know it before, the clock can extend.

Exception B: Information you provided within the first year that didnt become useful until later. Sometimes investigations take time. If your tip from month six dosnt lead to an arrest until month eighteen, they can still file.

Exception C: Information whos usefulness couldnt reasonably have been anticipated until after a year. This covers situations were circumstances changed – maybe a target who seemed untouchable suddenly becomes vulnerable due to other events.

According to the sentencing commission data, the average time between original sentencing and a Rule 35(b) reduction is 2.3 years. For defendants convicted of offenses with mandatory minimums, the average is even longer at 2.5 years. So dont expect quick action even if the goverment does file.

This is not a fast process and you should not plan your life around getting a Rule 35 reduction on any specific timeline.

Three Mistakes That Destroy Your Rule 35 Chances

After everthing weve discussed, here are the mistakes that absolutly kill peoples chances of getting a Rule 35 sentence reduction:

Mistake #1: Waiting until after sentencing to cooperate when you could have done it before. If you have information to trade, the time to do it is during plea negotiations when you can get a 5K1.1 departure. The statistics are clear – pre-sentencing cooperation gets you better results. Only rely on Rule 35 if you genuinly couldnt cooperate earlier or if your information came up later.

Mistake #2: Assuming cooperation guarantees a Rule 35. It dosnt. Theres no automatic formula. You can cooperate extensivly and still not get a motion filed. You need to go in with realistic expectations and a written agreement that spells out exactly what the goverment will do.

Mistake #3: Lying or holding back during proffer sessions. Prosecutors share notes. They compare stories. If your not completely honest, they will find out. And once your credibility is shot, your done. No Rule 35, probly no 5K1.1, and you might have given them ammunition to use against you.

Ive seen defendants throw away there best chance at a reduced sentence because they tried to play games or thought they could control the process. You cant. The government holds all the cards in federal cooperation and the sooner you accept that, the better your decisions will be.

Rule 35(a): Correcting Sentence Errors

We should circle back to Rule 35(a) because some people get this confused with the substantial assistance provision. Rule 35(a) is completly different – its about fixing mistakes, not rewarding cooperation.

If the judge made a clear error when calculating your sentence, you have exactly 14 days from when the sentence was oraly announced to file a motion to correct it. Clear error means things like:

• Arithmetical mistakes in adding up criminal history points
• Technical errors in applying the sentencing guidelines
• Using the wrong offense level
• Miscalculating the guideline range

What dosnt count as clear error? Disagreeing with the judges reasoning. Thinking your sentence is to harsh. Wishing your lawyer had argued something different. The clear error standard is narrow and courts interpret it stricty.

The 14 day deadline is brutal. Your lawyer needs to review the entire sentencing proceeding, identify any errors, and file the motion all within two weeks. Miss that window by even one day and its gone forever. This is why having an experianced federal criminal defense lawyer at sentencing matters so much.

What Happens If Your Rule 35 Gets Granted

Lets say everthing goes right. The goverment files a Rule 35(b) motion recomending a sentence reduction. What happens next?

First, understand that the goverments recomendation is just that – a recomendation. The judge has complete discretion to decide how much to reduce your sentence. They can grant exactly what the goverment asked for, grant less, or in rare cases grant more. According to the US Courts, judges generaly follow government recomendations but not always.

A Rule 35(b) reduction can bring your sentence below the statutory mandatory minimum. This is huge because mandatory minimums are otherwise almost impossible to avoid. If you were hit with a 10 year mandatory minimum for a drug offense and the goverment files a Rule 35 motion, the judge can sentence you to less then 10 years.

Theres no guarentee on how much of a reduction your going to get. Some defendants see there sentences cut in half. Others get modest reductions of a year or two. Alot depends on how substantial your assistance was, the judges disposition, and frankly some luck.

What To Do Now If Your Facing Federal Charges

So where does all this leave you? If your currently facing federal charges or if your already sentenced and hoping for a Rule 35, here is what you need to know:

If your not yet sentenced: Talk to your lawyer about cooperation NOW. If you have information that could help the goverment, the time to trade it is during plea negotiations. Get a 5K1.1 departure at sentencing rather then hoping for a Rule 35 later. The statistics are overwhelmingly in favor of pre-sentencing cooperation.

If your already sentenced: Understand the power dynamic. You need the goverment to file for you and they have almost zero obligation to do so. If you have a cooperation agreement, review it carefully to see exactly what they promised. If your going to continue cooperating, document everthing and push your lawyer to stay in contact with the prosecutors office.

Either way: Be completly honest in any proffer sessions. Dont lie, dont hold back, dont play games. Your credibility is everthing. One lie can destroy your chances of any substantial assistance credit.

Federal cooperation is a complicated game with rules that heavily favor the prosecution. Rule 35 motions exist but they are not the golden ticket alot of defendants think they are. The average reduction is 37 percent, not 50 or 60 percent. The goverment controls wheather one gets filed. And you might wait years for it to happen.

Knowing these realities dosnt mean you shouldnt cooperate if its the right move for your case. It just means you should go in with your eyes open, realistic expectations, and an experianced federal defense lawyer who understands how this process actualy works. The decisions you make about cooperation – especialy the timing – could affect years of your life.

And look, I get it. Your scared. Your facing federal prison and your looking for any way to reduce that time. Rule 35 sounds like hope. But false hope is worse then no hope because it leads to bad decisions. Better to understand exactly what your dealing with, what the actual odds are, and how to position yourself for the best possible outcome given those realities.

The federal system is harsh. The goverment has almost all the power. But defendants who understand how things actualy work – not how they wish things worked – make better decisions. Sometimes cooperation is absolutly the right move. Sometimes its not worth the risk and sacrifice. The answer depends on your specific situation, your specific information, and your specific prosecutors. An experianced federal criminal defense attorney can help you evaluate all of that before you make choices that cant be undone.

If your already cooperating or if your considering it, dont do this alone. Get someone in your corner who has been through this process dozens of times and knows how to negotiate, how to document, and how to push for the Rule 35 motion you were promised. Your freedom is to important to leave to chance.