What is a 5K Motion in the federal criminal system?

What Is a 5K Motion in Federal Criminal Cases?

A 5K motion (or “5K1.1 motion”) is a request filed by federal prosecutors asking the court to reduce a defendant’s sentence below the standard guidelines because the defendant provided substantial assistance in investigating or prosecuting others. This motion, authorized under Section 5K1.1 of the United States Sentencing Guidelines, is the most powerful sentence reduction tool available in the federal system. Only the government can file a 5K motion on a defendant’s behalf.

In the Northern District of Texas (which includes Fort Worth and Dallas), defendants who receive 5K departures typically see sentence reductions averaging 40.2% below the guideline minimum. This is lower than the national average of 52.6%, meaning prosecutors and judges in North Texas tend to be more conservative when rewarding cooperation.

Why Do Defendants Cooperate with Federal Prosecutors?

Hollywood often portrays criminals who refuse to “rat out” their associates. The reality is far different. The federal system deliberately incentivizes cooperation through a structured process that can dramatically reduce prison time.

Federal sentences begin with the United States Sentencing Guidelines. While the Supreme Court’s decision in U.S. v. Booker made these guidelines advisory rather than mandatory, they remain the starting point for every federal sentence.

Consider a defendant charged under 21 USC 841 and 846 with conspiracy to possess a controlled substance with intent to deliver. If fighting the charge at trial is not a viable option, the defendant faces a decision about how to minimize potential prison time.

How Does Acceptance of Responsibility Differ from a 5K Motion?

Simply pleading guilty does not earn a 5K motion. A guilty plea may qualify a defendant for a 2 or 3 level reduction under U.S.S.G. 3E1.1 for acceptance of responsibility:

(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

This acceptance reduction is meaningful but limited. A 5K motion, by contrast, can result in far more significant departures from the guidelines. The catch is that it requires “substantial” assistance, which typically means helping the government prosecute someone they do not already know about.

What Makes Assistance “Substantial” Under Section 5K1.1?

The full text of Section 5K1.1 provides:

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:

(1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;

(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;

(3) the nature and extent of the defendant’s assistance;

(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;

(5) the timeliness of the defendant’s assistance.

In practical terms, cooperation is considered substantial when it leads to the prosecution of someone the government did not previously have in their sights. Simply confirming what agents already know is rarely enough.

If you’re facing federal charges and considering cooperation, talk to a federal criminal defense attorney before speaking with prosecutors. The wrong approach can harm your case rather than help it.

What Happens During a Proffer Interview?

Federal agents often offer defendants the opportunity to participate in a proffer interview. During these sessions, agents promise that the contents of the discussion will not be used directly against the defendant.

Proffer sessions are serious proceedings. Agents typically bring photos of suspects seeking identifications and try to learn the whereabouts of others involved in criminal activity. For example, an IRS agent investigating identity theft might ask where the defendant obtained victim information and whether the defendant knows others engaged in similar schemes.

The information does not have to involve the same crime. If a defendant has knowledge about any federal crime, that information may be valuable to prosecutors.

Understanding the limits of proffer protection is essential. While agents may act professionally and even friendly, a proffer is not a confession, and cooperation is a double-edged sword. An experienced federal criminal defense lawyer can help you understand all alternatives before you agree to cooperate.

What Are the Results of 5K Motions in the Northern District of Texas?

Data from the United States Sentencing Commission (covering fiscal years 2009-2014) reveals important patterns for defendants in the Northern District of Texas:

Frequency of Use: In combined substantial assistance cases, the Northern District of Texas used 5K1.1 departures in 96.5% of cases (1,006 offenders). Only 3.5% received post-sentencing Rule 35(b) reductions.

Average Sentence: The average sentence for defendants receiving 5K departures in this district was 76 months. This is significantly higher than the national average of 52 months for 5K recipients.

Extent of Reduction: Sentences were reduced by an average of 40.2% below the guideline minimum. This is notably lower than the national average of 52.6%, suggesting that North Texas courts are more conservative in rewarding cooperation than many other districts.

Comparison to Other Texas Districts: The Eastern District of Texas and Southern District of Texas both granted average reductions of 46.3%, giving cooperating defendants better outcomes than those in the Northern District.

How Do 5K Results Compare Nationally?

National statistics from the same period provide context:

Who Receives 5K Departures: The majority of recipients were convicted of drug trafficking (60.7%), followed by fraud (13.5%) and firearms offenses (9.2%). More than half (54.8%) were originally convicted of offenses carrying mandatory minimum penalties.

Demographic Breakdown: White offenders received the highest percentage of 5K departures (37.3%), followed by Black (29.2%) and Hispanic (28.7%) offenders. U.S. citizens comprised 82.2% of recipients.

National Sentence Reduction: Across all federal districts, 5K departures resulted in an average sentence decrease of 52.6% from the bottom of the guideline range, with average final sentences of 52 months.

Watch: How Does Federal Sentencing Work?

What Factors Influence the Size of a 5K Reduction?

Courts consider five primary factors when determining how much to reduce a sentence under Section 5K1.1:

Usefulness: Did the cooperation lead to prosecution of higher-level targets? Helping catch “big fish” typically results in larger reductions.

Reliability: Was the information truthful and complete? Any dishonesty can eliminate the benefit entirely.

Nature of Assistance: Did the defendant simply provide information, or did they take more active steps like wearing a wire, testifying at trial, or participating in controlled purchases?

Risk: Did cooperation put the defendant or their family in danger? Higher risk typically justifies greater reductions.

Timeliness: How quickly did the defendant begin cooperating after arrest? Early cooperation is valued more highly.

Don’t wait to understand your options. Schedule a free consultation with our former federal prosecutors who understand both sides of federal cases.

Frequently Asked Questions About 5K Motions

Can a defendant file their own 5K motion?

No. Only the government can file a 5K motion. Defendants cannot independently request substantial assistance departures. This is why cooperation requires careful negotiation through experienced counsel.

What is the difference between a 5K motion and Rule 35(b)?

A 5K motion is filed at sentencing, while a Rule 35(b) motion is filed after sentencing to reduce an already-imposed sentence. Both reward cooperation, but Rule 35(b) typically requires assistance that was not known at the time of sentencing.

Can cooperation be used against you if the government decides not to file a 5K?

Information disclosed during a proffer interview generally cannot be used directly against you. However, derivative evidence (evidence discovered as a result of your statements) may be admissible. This is why having an attorney present during any cooperation discussions is essential.

Is a 5K motion guaranteed if you cooperate?

No. The government has complete discretion over whether to file a 5K motion. Even extensive cooperation does not guarantee the motion will be filed. The quality, usefulness, and truthfulness of your assistance all factor into the government’s decision.

How does the Northern District of Texas compare to other districts for 5K reductions?

The Northern District of Texas grants smaller average reductions (40.2%) compared to the national average (52.6%) and neighboring Texas districts (46.3% in both Eastern and Southern Districts). Defendants in North Texas should expect more conservative treatment when cooperating.

Contact a Federal Criminal Defense Attorney

If you are facing federal charges or have been approached by federal agents about cooperation, the decisions you make now will shape the rest of your life. At Varghese Summersett, our team includes former federal prosecutors who understand how the government evaluates cooperation and what it takes to secure a 5K motion.

Call us at (817) 203-2220 for a complimentary strategy session. During this call we will:

• Discuss the facts of your case
• Discuss the legal issues involved, including the direct and collateral consequences of the charges
• Discuss the defenses and cooperation options that may apply to your situation

You can also contact us online.