Understanding "Substantial Compliance" in Federal Drug Cases

Sentencing for drug possession as well as for drug trafficking and conspiracy in federal court carries mandatory minimum sentences of five or ten years, based on the type and quantity of the drug(s). There are only two ways in which a Federal Judge can sentence a defendant to less time than is required by the mandatory minimum. The first is where the defendant qualifies for the “safety valve” under 5C1.2 of the Federal Sentencing Guidelines. To learn more about the “safety valve,” please see my article entitled “The ‘Safety Valve’ in Federal Drug Cases.”

The sole other method for  sentence lower than the mandatory minimum is by providing “substantial assistance” to the Government under 5K1.1 of the Federal Sentencing Guidelines.

What is “substantial assistance”?

Mostly, it is whatever the prosecutor says it is; the prosecutor is the only one who can make a motion for the sentence to be reduced  substantial assistance. The attorney representing a defendant who’s  decision to provide substantial assistance must do his homework. Some prosecutors are well known for fairly rewarding a defendant who provides assistance to the Government. Other prosecutors tend to have a lesser reputation.

More specifically, “substantial assistance” is information  defendant provides the Government regarding the criminal activities of other people. These other persons  co-defendants in the same case, or they may be persons not yet known to the authorities to be involved in criminal activity. The information can even be provided regarding criminal activity that might be prosecuted by state prosecutors  federal prosecutors. The amount of the reduction in the sentence for substantial assistance can vary from 5% to 50 %. The degree of the reduction depends upon how valuable the information would be to prosecutors. For example, if a street dealer provides information on another street dealer, the reduction in sentence will be less than if the information was provided to the person who supplies the street dealer. And if the defendant testifies in court for the prosecution or does undercover work for the prosecution, it will likely cause a greater reduction in sentence than if such work isn’t required.

It is vital for a criminal defense attorney to advise his client of the risks of providing substantial assistance to the Government, and also to protect his client from risk to the extent possible. For instance, someone who provides information against high level drug dealers or gang members may be labeled a snitch in prison that may subject him to physical harm or even death. There are often occasions where the best deal for the client might be to provide no information to the Government or to provide only minimal information that will bring about a slight reduction in sentence to reduce the possibility that a person will be labeled a snitch. For a defendant who is considering providing “substantial assistance,” the timing of the offer to provide information can be critical. If a defendant waits , the information may be stale and worthless to the Government. Or the information could be worthless because other co-defendants have previously provided the same information.

The very best plan of action for a person faced with a a federal drug crime is to obtain a criminal defense attorney proficient in federal drug defense as soon as possible following the arrest.