Rule 35: When You Believe the Jury’s Sentencing Verdict was too Strong

You are the defendant in a federal criminal case awaiting your sentencing, having already been found guilty. The jury delivers the maximum sentence available and your body goes completely numb. Is this decision final? Is there any way that the sentence can be reduced? Yes. One possibility is through Rule 35.

What is Rule 35?

A Rule 35 motion is made by the prosecutor and asks the court to reduce a previously imposed sentence. Even though a Rule 35 motion may only be invoked by the prosecutor, it is the defense attorney’s responsibility to ensure cooperation and that the defendant is properly awarded for his or her assistance. It is important to note that this rule is not the same thing as a criminal appeal or a post-conviction relief motion. There are three different situations in which a Rule 35 motion may be made.

Option 1 – Rule 35(a): If a sentence resulted from arithmetical, technical, or other clear error, a motion for Rule 35 must be made within fourteen days after sentencing. Here, the motion will be fairly straightforward since the motion rests on a clear error made in your sentencing.

Option 2 – Rule 35(b)(1): Next, a motion may be made by the government within one year of sentencing, provided substantial assistance in investigating or prosecuting another person.

Option 3 – Rule 35(b)(2): Lastly, a “Later Motion” may be made by the government more than one year after sentencing if the defendant’s substantial assistance involved any of the following:

  • Information not known to the defendant until one year or more after sentencing;
  • Information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or
  • Information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.

As you can see, both options under Rule 35(b) involve the convicted person assisting the federal government in gathering information that can be used to prosecute other federal crimes. The defendant may even be asked to testify in court against the individual.

This inevitably brings about a moral question to many and few may even decide that they cannot participate in such assistance. However, it is not without great reward. If the court is reducing a sentence due to substantial assistance, the sentence may even be reduced to a level below the sentence established by statute.

What are the Chances that a Rule 35 Motion will Result in a Lower Sentence?

Rule 35 is a discretionary post-conviction relief remedy, and therefore may be difficult to attain.  At Shein & Brandenburg we understand the emotional and life-changing impact that a guilty verdict will undoubtedly have on an individual. We have experienced attorneys in the area of federal post conviction relief and can evaluate your case to best assist you when working with the federal government.