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Derk Wadas

The  Federal Drug Conspiracy laws establish a so called “mandatory minimum” of a certain number of years in prison upon conviction and sentencing. depending upon the amount of drugs involved.  For example, 5-40 years in prison with a minimum of five or 10 years to Life in prison   Essentially, it means that if one is convicted of a dug conspiracy, one is required to serve the mandatory minimum without regard to applicable sentence under the U.S. Sentencing Guidelines

Is the mandatory minimum really “mandatory.”  For many, the answer is clearly, no.  There are several mechanisms built into the law that allow people to avoid, in some cases, the mandatory minimum requirements.

The first is the Safety Valve which I have written about in greater detail here.

The other methods by which one may avoid the mandatory minimum are Substantial Assistance resulting in either a 5K1 or Rule 35 Motion, or what is referred to as a downward departure or non Guidelines sentence.

Substantial Assistance

Substantial Assistance refers to assistance provided by an accused person to the government in the apprehension or successful prosecution of a co defendant, co conspirator or other person.  Typically the assistance involves the person speaking or “debriefing” with the Government agents and providing information.  The person is often expected to testify against others or at least be willing to testify.

If the person provides assistance that the Government, in its discretion, deems “substantial”, the Government will inform the Court by filing either a 5k1 Motion or a Rule 35 Motion.  A 5K1 motion is so named because section 5K1 of the Sentencing Guidelines authorizes the Government to file a Motion informing the Court that a person has provided substantial assistance.  More importantly, it authorizes the Court to disregard the applicable statutory mandatory minimum sentence and give a person a sentence that the court deems appropriate without regard to the mandatory minimum.

The difference between a 5K1 motion and a Rule 35 Motion is that a Rule 35 Motion is filed after sentencing and a 5k1 Motion is filed before sentencing.  Either a 5k1 or a Rule 35 Motion allows the court to disregard the statutory minimum.  This is a downward departure.

Downward Departure

  A downward departure is a term used to describe a situation where the court will impose a sentence below the applicable guideline range sentence.  A downward departure does not necessarily have to be accompanied by a 5k1 or Rule 35 Motion.  The court may sentence a person below the statutory minimum if the court decides to depart downward from the guidelines for another reason or reasons.

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