Is it Wrong to ask for Prosecutorial Consistency in Awarding Downward Departures Under § 5K1.1?

As anyone who works in the Federal sentencing arena knows, most cooperating defendants hope to receive credit for their efforts under § 5K1.1 of the Federal Sentencing Guidelines.  This motion, which must be filed only by the government at their discretion, awards the defendant by recommending a reduction in his or her sentence.  While there are certain standards that must be met to receive this credit, there does not seem to be any rhyme or reason as to how much credit a defendant receives.  While it is still the Judge’s discretion (and always should be), various Districts around the country have developed their own formal or informal policies and guidelines.  It begs the question, should there be any guidelines, or should there be some consistency?

Examples abound.  In some Districts, the prosecutor makes no recommendation and leaves it totally in the Judges’ hands.  Another District in which we have worked extensively with defense attorneys, a defendant gets a two level guideline decrease for “in-case” cooperation and a four level decrease for “out-of- case” cooperation, meaning the government used information to get a conviction in an unrelated case.  In yet another jurisdiction, the government recommends a 50% guideline reduction for cooperating defendants.

These examples can make for difficult decisions by defense attorneys and defendants.  While we know the vast majority of cases are settled by plea agreements, the decision as to whether to cooperate or not can be extremely challenging.  Often that cooperation can implicate friends, business associates and even relatives—and the question becomes is it worth it?  Knowing the “reward” ahead of time can often help dictate the answer.