The White Collar Appeal: Cooperation is the Only Thing that Matters in Setting a Sentence Beneath the Mandatory Minimum

Overview

• A cooperating defendant can obtain a sentence below the mandatory minimum only when the value of his cooperation—as distinct from other sentencing factors—justifies it, according to the Eleventh Circuit’s decision in United States v. Perez.     
• A government motion under Section 3553(e) does not give the district court unfettered discretion to impose sentence based on the traditional factors under Section 3553(a).      According to the Eleventh Circuit, any reduction below the mandatory minimum must be justified solely by the defendant’s substantial assistance.  This appears to be the consensus among the Courts of Appeals to face this question.
• Defense counsel should frame their sentencing arguments accordingly—and prepare in advance by creating a strong and persuasive record of the defendant’s assistance so that the sentencing judge has a sufficient basis on which to impose significantly reduced sentence.

Background

The defendants in this case were low-level participants in a fentanyl distribution scheme—one was a courier and the other helped unpack pills and send them to distributors.  Nevertheless, because the quantity exceeded 400 grams of fentanyl, both faced mandatory minimum sentences of ten years.

Both defendants cooperated with the government, and the government filed substantial assistance motions under Section 5K1.1 of the Sentencing Guidelines and Section 3553(e).  In the motion, the government requested that the court reduce the defendants’ offense levels by two in recognition of their cooperation but opposed any further reduction based on non-cooperation factors.  

At sentencing, the district court sentenced one defendant to 66 months and the other to 60 months—significantly below the mandatory minimum and their Sentencing Guidelines range.  The district court explained that the sentences were based on “all of the 3553 factors.”

The government appealed the sentences, arguing that the district court was not permitted to consider the Section 3553(a) factors in setting a sentence below the mandatory minimum.  Instead, the government argued, Section 3553(e)—the mechanism for imposing such a sentence—binds the sentencing court to consider only the “defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense,” not the broader Section 3553(a) factors that otherwise guide the court in imposing sentence.

Holding

The Eleventh Circuit agreed with the government and vacated the sentences. Joining every other Court of Appeals aside from the D.C. Circuit (which apparently has not passed on the issue), the Eleventh Circuit held that Section 3553(e) “does not grant district courts authority to sentence a defendant below a statutory minimum based on non-assistance factors.”

The court’s reasoning flowed from the text and structure of Section 3553(e).  The statute authorizes courts to “impose a sentence below [the] level established by statute” only “so as to reflect a defendant’s substantial assistance.”  The court contrasted Section 3553(e) with Section 3553(f), which, in certain drug cases, permits the court to impose sentence “without regard to any statutory minimum sentence.”  Congress’s decision to include that broader language in subsection (f) but not subsection (e) demonstrates that substantial-assistance variances remain tethered to the statutory minimum, permitting only “a specific, carefully circumscribed type of departure.” 

Key Takeaways

Cooperating defendants should highlight their substantial assistance as distinct from the traditional sentencing factors.  Having cleared the hurdle of securing the 5K and Section 3553(e) motion, and then obtained a favorable sentence over the government’s objection, having the sentence vacated because the district court was not sufficiently precise in articulating the basis for the sentence must sting.  Defense counsel can help to avoid this disappointment by providing the sentencing judge a clear roadmap for imposing sentence, including by addressing the defendant’s cooperation separate and apart from the Section 3553(a) factors.  Moreover, at the sentencing hearing, if the judge who appears inclined to impose a lenient sentence appears to conflate the factors, defense counsel should assist the court in distinguishing between the substantial-assistance factors and the other sentencing factors in order to protect any lenient sentence on appeal.

The substantial-assistance factors under Section 3553(e) are coextensive with the factors under Section 5K1.1.  Perez also makes clear that the factors for evaluating a defendant’s assistance under Section 3553(e) are the same as those under Section 5K1.1.  Those factors include (1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, (2) the truthfulness, completeness, and reliability of any information or testimony provided, (3) the nature and extent of the defendant’s assistance, (4) any injury suffered, or danger or risk of injury to the defendant or his family resulting from his assistance, and (5) the timeliness of the defendant’s assistance.  Defense counsel should consider framing this portion of the sentencing argument around these factors.

Build a detailed cooperation record from the beginning.  Concrete, specific examples of a defendant’s cooperation that the sentencing court can cite in articulating precisely why the cooperation warrants a particular variance from the mandatory minimum will help to insulate the sentence from appellate reversal.  Defense counsel should consider creating contemporaneous records of things like the number and length of interviews with the government, specific information provided that led to other investigations or prosecutions, any grand jury or trial testimony, risks to the defendant or the defendant’s family, unusual timeliness, such as cooperating before indictment or immediately after arrest, and ongoing cooperation commitments.  

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