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  #1  
Old 09-11-2007, 12:27 PM
whitecollarben whitecollarben is offline
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Default 5K1.1 Departures

I am getting a 5k1.1 departure for my cooperation with the government. I after reading the sentencing guideline manual noticed that standardly the government will give you a level reduction in the guidelines putting you in the mitigating role in the offense if you provide substantial assistance.

(Excerpt from Sentencing Guideline Manual)
Background: A defendant’s assistance to authorities in the investigation of criminal activities has been recognized in practice and by statute as a mitigating sentencing factor.

Is any 5K1.1 departure given by the judge in addition to being listed in the mitigating role in the offese? And is the departure in addition to any level reduction for Acceptance of Responsibility.

I am currently at an offense level 21 for mail fraud on the guidelines (7. base level, 10. dollar amount, 2. victims, and 2 sophisticated means). Can I expect to have 2-3 levels reduced for Acceptance of Responsibility, 2-4 levels reduced for Mitigating role in the offense wheather minimal or minor, and then any departures in offense levels for my substantial assistance to authorities.

Anyone's experience or knowledge of this matter would be appreciated.
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Old 09-11-2007, 01:00 PM
Berlyn Berlyn is offline
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I recently received a 5k1 departure for cooperation. I was at a level 16 initially, but in the plea and PSR they went down to a level 12. They took off some points for accepting responsibility (I believe I only got 1 point off for this), and a couple of other things I can't remember now for some reason. The report also included a paragraph about how 5k1 was possible. My lawyer told me that the government usually doesn't ask for it until the week before sentencing, and in my case they asked for it the week of sentencing. It was not a specified level, the US attorney just asked that the judge consider 5k1 for me and recommended a sentence of 5 years of probation with some type of confinement. I ended up receiving 3 years of probation and 6 months of home confinement. I hope this helped, and good luck!
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Old 09-11-2007, 01:32 PM
bellisq bellisq is offline
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The guideline range is first determined, then the 5K1 departure is applied to lower that guideline, if the government letter is forthcoming. A 5K departure range (often a percentage) is suggested by the prosecutor and also by the defense sentencing memo and defense presentation at sentencing. The judge decides the amount of the reduction beneath the guideline range.
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Old 09-30-2008, 08:50 PM
ecks-con ecks-con is offline
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Take Ya Charge & Be A Man!!! Be Responsible For Your Actions!! Let Law Enforcement Do Their Jobs!! Its People Like You Who Are Responsible For Having A Whole System Of People Who Didn't Get Caught When The Alleged Offense/s Occured, But Solely By Testimony (85% Untrue Most Of The Time) From Another!!
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  #5  
Old 10-01-2008, 06:52 AM
PTO-97580 PTO-97580 is offline
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While everyone is entitled to their opinion on 5K1's, The OP asked for specific info, not a debate on the subject. Please stay on topic

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Originally Posted by ecks-con View Post
Take Ya Charge & Be A Man!!! Be Responsible For Your Actions!! Let Law Enforcement Do Their Jobs!! Its People Like You Who Are Responsible For Having A Whole System Of People Who Didn't Get Caught When The Alleged Offense/s Occured, But Solely By Testimony (85% Untrue Most Of The Time) From Another!!
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Old 10-01-2008, 06:29 PM
bellisq bellisq is offline
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I see that the original post is a year old but the poster is new. We are pretty fair here, we don't judge, or give unasked for opinions. We have all made mistakes and if you are here, that is a given. Peace out.
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Old 10-02-2008, 07:27 AM
beverlysm beverlysm is offline
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Many unasked for opinions are given here. And some not very nicely put.
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Old 10-02-2008, 09:52 AM
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My bf was given a 5k.1 and he still got the max sentence. There was a resentence hearing scheduled for both him and one other co defendant, but both were canceled and never rescheduled, that was back in May.
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Old 10-02-2008, 03:10 PM
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If your boyfriend had a 5k1.1 and received a max sentence, this could certainly be grounds for his lawyer to appeal his sentence. A 5k1.1 will not always help if there is a mandatory minimum sentence (for certain drug or career criminal charges).

If the judge interpreted the value of the 5k1.1 as minimal or if your boyfriend was sentenced for acquitted conduct, these factors could have contributed to a higher sentence as well.
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Old 10-03-2008, 08:32 AM
beverlysm beverlysm is offline
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Always, a 5k1 won't get you under the mandatory minimum if applicable, but a Rule 35 will. I know they are two different animals. But here in this district, the AUSA decides which one he'll do. Several people in my son's drug conspiracy case got Rule 35's and went under minimums. I know for a fact that all their assistance was prior to sentencing. And they all were resentenced at differenct times and months after the original sentence. They all got 50% cuts. I check PACER daily to keep up with what motions are filed for these guys.
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  #11  
Old 10-03-2008, 02:00 PM
bellisq bellisq is offline
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That is not accurate. A 5k1.1 can definitely get you below the mandatory minimum, i have worked with many clients who have benefited with that scenario at sentencing. The procedures stay the same, and the prosecutor has to submit the motion to the judge.

Last edited by bellisq; 10-03-2008 at 02:04 PM..
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Old 07-16-2009, 07:23 PM
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Originally Posted by bellisq View Post
That is not accurate. A 5k1.1 can definitely get you below the mandatory minimum, i have worked with many clients who have benefited with that scenario at sentencing. The procedures stay the same, and the prosecutor has to submit the motion to the judge.

When my husband plead guilty for 18 pts ( 27-33 months), the prosecutor stood and mentioned to the judge her is getting a cooperation agreement.

Silly ?, but does that mean for sure he is getting the 5k1 ? His sentencing is in Sept, so far prior to pleading guilty he has only had 1 profer meeting.
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Old 07-17-2009, 05:48 AM
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Odd. I was told the only way out of the mandos was for the safety valve.
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  #14  
Old 08-18-2010, 10:07 PM
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Question Need advice about 5K1's

Hi everyone..anyone!

My brother is facing 20 years or more on drug charges. He was busted along with many others in a big drug ring. Well with everything they had on him he didn't have much of a choice but to cooperate with testifying against others at their trials. And the other people made statements against him also and all that. He is pegged as the leader of this whole thing when in reality he is not. He is like fourth man from the top in the whole mess,I know this from reading the discovery of the case that he sent to me. Anyway some of the people he was involved with were some pretty bad people, he signed the 5K1 and did whatever it is that comes along with that, he is concerned about having that in his paperwork. Is there anyway that other inmates could find out about him having signed it other than himself letting people know that? Also if people were to find out is there anyway that he could be protected by officers or whatever they may be from people harrassing him or hurting him? Any information on the 5K1's or experiences would help alot!! Thanks soo much!!
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Old 08-19-2010, 12:59 AM
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Originally Posted by devotedwife5908 View Post
Hi everyone..anyone!

My brother is facing 20 years or more on drug charges. He was busted along with many others in a big drug ring. Well with everything they had on him he didn't have much of a choice but to cooperate with testifying against others at their trials. And the other people made statements against him also and all that. He is pegged as the leader of this whole thing when in reality he is not. He is like fourth man from the top in the whole mess,I know this from reading the discovery of the case that he sent to me. Anyway some of the people he was involved with were some pretty bad people, he signed the 5K1 and did whatever it is that comes along with that, he is concerned about having that in his paperwork. Is there anyway that other inmates could find out about him having signed it other than himself letting people know that? Also if people were to find out is there anyway that he could be protected by officers or whatever they may be from people harrassing him or hurting him? Any information on the 5K1's or experiences would help alot!! Thanks soo much!!
He could get 'protective custody' if it's found out he's cooperating and he's in danger. Also he won't end up designated to the same prison as people who are in his indictment.

He wouldn't sign a 5k.1. The government would have to file a motion pursuant to section 5k.1 of the guidelines asking for a 'downward departure based on him providing substantial assistance. How much of a departure is ultimately up to the Judge, but the government should make a recommendation. He probably signed his plea agreement which could have referred to a 5k.1 motion being filed on his behalf. His lawyer should definitely know.

If he testifies in open court, it's going to be obvious. If he made recordings or set somebody up, it's going to be discoverable. If he's just telling the truth to the government and giving information, they probably would do what they could to protect him. Try and see if his lawyer will talk to you, or at the very least him, about his safety. There are many threads here about 5k.1 agreements and cooperation. Type in 5k.1 in the search box and you'll get the same information I just gave you and more to read and research.

Good luck to both of you. It can become risky if people know he is or has cooperated. I hope things work out and he stays safe.
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Old 08-19-2010, 01:34 PM
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For a bit of perspective, 25% of all federal defendants get a 5K1 downward departure and most of them are incarcerated. Aba is right about the gov making sure he is not in a facility with co-defendants. Doesn't mean he won't get hassled, but no one will definitely know if he cooperated or not.

Plea agreements do not appear on on the internet and often not on his docket info at the courthouse. Nothing wrong with being alert to possible problems, that is a smart thing, but there is real interest on the part of the government to protect cooperators.

Last edited by bellisq; 08-19-2010 at 01:36 PM..
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Old 08-19-2010, 03:18 PM
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my sons co- defendant was looking at up to life on drug charges and ended up with 10 years. My son was looking at up to 20 years, he received 51 months. Unless it is at the end of the process, the sentence imposed could have a wide range from what they can sentence the person to.
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  #18  
Old 08-19-2010, 05:13 PM
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Quote:
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my sons co- defendant was looking at up to life on drug charges and ended up with 10 years. My son was looking at up to 20 years, he received 51 months. Unless it is at the end of the process, the sentence imposed could have a wide range from what they can sentence the person to.

I hope he gets shown some mercy...he is a level 41 category 6 so the 20 years is if he doesnt get put away for life. But then again you never know!! Thanks so much
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Old 08-19-2010, 05:18 PM
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Quote:
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He could get 'protective custody' if it's found out he's cooperating and he's in danger. Also he won't end up designated to the same prison as people who are in his indictment.

He wouldn't sign a 5k.1. The government would have to file a motion pursuant to section 5k.1 of the guidelines asking for a 'downward departure based on him providing substantial assistance. How much of a departure is ultimately up to the Judge, but the government should make a recommendation. He probably signed his plea agreement which could have referred to a 5k.1 motion being filed on his behalf. His lawyer should definitely know.

If he testifies in open court, it's going to be obvious. If he made recordings or set somebody up, it's going to be discoverable. If he's just telling the truth to the government and giving information, they probably would do what they could to protect him. Try and see if his lawyer will talk to you, or at the very least him, about his safety. There are many threads here about 5k.1 agreements and cooperation. Type in 5k.1 in the search box and you'll get the same information I just gave you and more to read and research.

Good luck to both of you. It can become risky if people know he is or has cooperated. I hope things work out and he stays safe.

Well he was under a 17 month investigation so what they have on him and everyone is pretty much open to everyone ya know? he is a level 41 category 6....so he had no choice but to cooperate this time around...he has testified in open court against some of the codefendents as have they against him. He is just concerned about the info getting passed around that he's a rat. It makes me sad for him because as guilty as I know he is, he really shouldn't be taking all the blame for this case. But what can anyone do about it? thanks so much!
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Old 08-19-2010, 08:13 PM
Zelda50 Zelda50 is offline
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Everyone has a "choice." It doesn't sound like he's "being blamed for the whole case" - sounds like he's brought the blame to others as well. He knew what he was doing when he did agreed to testify against others and now he's just going to have to deal with the consequences. He can try to keep it quiet but it probably won't stay that way but the BOP has its ways of protecting folks who want protection most of the time. There's really nothing you can do for him from the outside - he's going to have to make his way through the journey he's chosen.
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Old 08-19-2010, 09:26 PM
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Everyone has a "choice." It doesn't sound like he's "being blamed for the whole case" - sounds like he's brought the blame to others as well. He knew what he was doing when he did agreed to testify against others and now he's just going to have to deal with the consequences. He can try to keep it quiet but it probably won't stay that way but the BOP has its ways of protecting folks who want protection most of the time. There's really nothing you can do for him from the outside - he's going to have to make his way through the journey he's chosen.
Well actually if you knew the case then you would see why I say it's like he's blamed for the whole thing...every newspaper aritcle on it names him the "KingPin". Now like I said yes he is guilty but he was under the control of others..alot higher ups then him....and when you get wrapped up in things like that its hard to walk away without consequences. I think I'd be scared for my life if I knew these people. I know my brother and I know he was wrong but I also know him as a person and how he was swept up in it before he knew it. I know lots of people pointing fingers I dont blame them I have no idea how I would react if I were in a situation like that facing the time they all are. I just think the blame needs to put out on every one of them, they were all involved they all knew what they were doing, and what the consequences of being caught were. And I'm sorry if I'm worried about my brother in that sense and feel like that but I think you could have been a little more compassionate with your reply. All I wanted was some advice on 5K1's ...not your 2 cents on something you have no clue about and so rude to someone you have no idea how they are really feeling about their own situation.
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Old 08-19-2010, 09:29 PM
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Quote:
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Everyone has a "choice." It doesn't sound like he's "being blamed for the whole case" - sounds like he's brought the blame to others as well. He knew what he was doing when he did agreed to testify against others and now he's just going to have to deal with the consequences. He can try to keep it quiet but it probably won't stay that way but the BOP has its ways of protecting folks who want protection most of the time. There's really nothing you can do for him from the outside - he's going to have to make his way through the journey he's chosen.

Oh and I wasn't saying what can I do about it, when I replied to the other person, I was saying well what can anyone do? Like meaning whats done is done. Again all I wanted was some advice and knowledge on 5K1's.
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Old 08-19-2010, 09:37 PM
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Originally Posted by aba View Post
He could get 'protective custody' if it's found out he's cooperating and he's in danger. Also he won't end up designated to the same prison as people who are in his indictment.

He wouldn't sign a 5k.1. The government would have to file a motion pursuant to section 5k.1 of the guidelines asking for a 'downward departure based on him providing substantial assistance. How much of a departure is ultimately up to the Judge, but the government should make a recommendation. He probably signed his plea agreement which could have referred to a 5k.1 motion being filed on his behalf. His lawyer should definitely know.

If he testifies in open court, it's going to be obvious. If he made recordings or set somebody up, it's going to be discoverable. If he's just telling the truth to the government and giving information, they probably would do what they could to protect him. Try and see if his lawyer will talk to you, or at the very least him, about his safety. There are many threads here about 5k.1 agreements and cooperation. Type in 5k.1 in the search box and you'll get the same information I just gave you and more to read and research.

Good luck to both of you. It can become risky if people know he is or has cooperated. I hope things work out and he stays safe.
Also he didn't set anyone up or make recordings of them, that was actually done to him. There were confidential informants working with the DEA. He only agreed to talk after he was arrested, he signed that paper that waives his rights, and made a statement to them.
Thank you so much for your helpful advice, I appreciate it very much.
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Old 08-19-2010, 11:48 PM
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Quote:
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Well he was under a 17 month investigation so what they have on him and everyone is pretty much open to everyone ya know? he is a level 41 category 6....so he had no choice but to cooperate this time around...he has testified in open court against some of the codefendents as have they against him. He is just concerned about the info getting passed around that he's a rat. It makes me sad for him because as guilty as I know he is, he really shouldn't be taking all the blame for this case. But what can anyone do about it? thanks so much!
Sorry to say that and i dont want to scare you- but it is most likely , that sooner or later someone finds out through the electronic law library- it has happens many times to MANY others- specially in USP´S and /or if he gets into trouble with others( which is at times not avoidable).. at some places there are certain groups in prison that wont have any thing better to do then check on new inmates courtdocket.. and if they see that there is "sealed" stuff- everyone will know what has hapened without actually reading it. the government do not give a damn about the saftey once those individuals are imprisoned.. yes. there is such a thing as " protective custody" - which means THE HOLE, and nothing else.. is your brother sentenced yet? he coulld try and and get into this f.e.a.r.- issue .. which means they put him in a ´protective housing unit- but for that he has to be a kind of " crown-witness" and provide the government with a lot of information, in those protective custody units there are onlyrats and no one else.. i thing there are only about 8 Units like this within the entire United states.. But you can google this!!.. else, in generall population- someone finds it out sooner or later and he would get in deep trouble for it.. AGAIN- Im not saying this to scare you- IM saying it because it is happening in there everyday, maybe one of the main reasons for inmate fights& stabbings.. I have seen it many times- and now(!!) were the courtdockets available to Everyone through their truelinc service.. i wish your brother the best and hope that i would never come out! but that depends .. im sorry but i dont have a good answer for you- BUT A HONEST ONE!!

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Old 08-21-2010, 06:34 AM
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If he feels that he is in danger or being targeted, He needs to immediatley request protective custody. The movement is controlled. By law , he is entitled to be safe. PCU is not a cake walk, but he willl be much safer. If he is in a medium or high security prison there is more controlled movement and less opportunity for retribution. He needs to be aware of his surroundings and always watch his back. But then that is true for everyone in prison. It's a funny thing.... informants. or anyone who is being lawful, is considered a snitch or a rat. It is a sad statement, but the prison is a different "society within a society". Try to keep in touch on a regular basis and if need be, you can always call the BOP if he is not being properly protected. Sometimes the outside squeaky wheel can help. Try not to worry every minute of the day. Save your energy for times that you might be able to help and you will know what and when those are.
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