BEST EARLY RELEASE STRATEGY IN FEDERAL CRIMINAL SENTENCING IN THE MIDDLE DISTRICT OF FLORIDA

After the initial sentencing in federal court it is still possible to secure a second sentencing to obtain a better sentence under Rule 35. This is true even if your client has already received a lower sentence under the 5K provision for co-operation. Typically in the Middle District of Florida the Government will not file for a Rule 35 sentencing departure unless there has been extraordinary work from the defendant on the Government's behalf. 

A typical example of extraordinary co-operation after conviction and sentencing for a federal crime would be the giving of testimony to a grand jury or federal trial jury against a fellow co-conspirator in a complex criminal case that results in an indictment or a conviction of a federal crime. In one significant federal criminal case in the Middle District of Florida that I handled a defendant was well rewarded by prosecutors after he lured a co-conspirator from a country without an extradition treaty with the United States to a country with an extradition treaty. 

Federal Prison Drug Program for early release?

Another significant way to reduce the release date after sentencing is for the defendant to successfully complete the federal drug program while in federal custody. Typically there is a long waiting list for acceptance into the program. The federal inmate drug program itself includes classes that must be taken over the course of about eighteen months or so while in custody. The benefit is an entire year early of the sentenced release date. 

Unfortunately, because of the time it takes to complete the course and the waiting list, the beneficiaries of this federal prison program tend to be those defendants convicted of drug trafficking cases. Also, the program is open only to those federal prisoners who have established a drug problem with addictive behavior at sentencing or thru the Pre-sentencing Report. All too often defendants will mischaracterize and minimize their addiction problems to the probation officer assigned to conduct and complete the Pre-sentencing Report (PSR) with the result that the Bureau of Prisons (BOP) as directed by federal law will not grant access to the drug treatment program.

If the PSR does not reference any addictive behavior that can be proven, then the initial sentencing should include evidence to the federal district judge of addiction thru the testimony of the defendant, family, friends, psychiatrist or therapist for the judge to make an informed finding on the record that the addiction exists and recommend the drug program. It's also important to formally request that the judge amend the PSR to include the reference to the formal finding of addiction. Otherwise the BOP may not have ready access to the judge's decision that overruled the probation officer's assessment in the PSR.

These examples show that it's necessary to have an effective strategy before the initial sentencing which successfully will lay the groundwork for either a more beneficial second sentencing or early release thru Bureau of Prisons programs. Because the vast majority of federal defendants are forced to plead guilty, effective defense lawyers should plan early release strategies within and outside the federal sentencing guidelines well before sentencing in federal criminal in the Middle District of Florida in Tampa. 

HOW FEDERAL PRISONERS MAY GAIN SUBSTANTIAL ASSISTANCE AFTER CONVICTION & SENTENCING

Even after sentencing in federal criminal cases there is still hope for federal prisoners to be re-sentenced within a year of the original sentencing date to a lower period of prison time based on Rule 35 substantial assistance for the best possible sentencing outcomes. 

In a typical federal criminal case in which a defendant either pleads guilty or is found guilty after trial, the defendant will be given an opportunity to give a proffer before sentencing. A proffer is a statement of knowledge of criminal acts that not only constitute the charged misconduct in the indictment, but often includes knowledge of other criminal conduct. 

In many Federal jurisdictions including the Middle District in Tampa the Department of Justice Assistant United States Attorneys will make a motion for a substantial assistance departure from sentencing guidelines only if the quality of the information is likely to result in further arrests or indictments.

Under federal law only the Government may file a motion for substantial assistance. If the proffer results in a substantial assistance motion before sentencing, then part 5k of the Federal Sentencing Guidelines governs; whereas if the proffer results in a substantial assistance after sentencing, then it is Rule 35 of the Federal Guidelines that governs. Even when the Government deems that there is an insufficient proffer of alleged criminal conduct to provide a 5k motion before sentencing, there is still a possibility for new information to be considered for substantial assistance under Rule 35.

What should a federal defendant who has already been sentenced do to persuade the Government to provide him with a Rule 35 substantial assistance? Here is a five step process to consider:


 1. The prosecutor most likely to file the Rule 35 is the very one who prosecuted the federal prisoner. The prosecutor will be most interested in expanding the federal indictments that led to the underlying criminal case against the federal defendant. Therefore, the most important information that a defendant may possess is any new information about the initial criminal conduct.

2. The prosecutor is busy prosecuting other cases. In fact his or her knowledge about the facts and circumstances of the case is often more limited than that of the government agent involved. Therefore, the most important person to contact with any new information is the government agent.

3. The Government agent must be convinced that the information has the following attributes:

• The information is new. Any information that was given in the original proffer before sentencing is no longer new nor original. The government agent can not be expected to spin wheels over old facts.
• The information is timely. If the information is no longer of use, then it will not help the Government. 
• The information is credible, trustworthy and reliable. Any inconsistencies within the framework of alleged facts makes all of the facts given more difficult to believe.

4. If the information for a proposed new proffer is about other criminal conduct than the charged offense, then it may be necessary to contact other federal agents or state law enforcement officers. But remember that since the motion must be filed in federal court by a federal prosecutor, it's important to include the original federal agent or whichever agent is handling his files if, for example, he has retired or rather unexpectedly become a zen monk in Japan. 

5. In this process it's important to find a champion, but the champion is not going to be your defense lawyer. Your champion will be the government agent who makes the time and effort to listen to a new proffer, who believes the proffer is reliable and credible and who then persuades the prosecutor to file the Rule 35 motion. 

Once a substantial assistance motion is filed a defense lawyer may be of assistance in making effective arguments to the federal judge for giving as many levels as possible in a downward departure from the original sentence. The goal will be to find the most effective ways to provide the federal sentencing judge with better sentencing options by reducing the federal sentencing guideline range.