'Reasonably Predictable': the Reluctance to Embrace Judicial Discretion for Substantial Assistance Departures

Abstract

Within the realm of expanded judicial discretion are sentence reductions based on a defendant’s cooperation with the government, namely, where there are no statutory, mandatory minimums. Cooperation is one of several bases for sentencing departures. Prior to the Supreme Court's decision in United States v. Booker, which rendered the Sentencing Guidelines advisory rather than mandatory, judges had discretion to depart from the Sentencing Guidelines where the government made a § 5K1.1 motion after receiving substantial assistance, or cooperation, from a defendant. Post-Booker cooperation departures are particularly fascinating because they are a clear illustration of the manner in which Booker may expand a judge’s power to “do what’s right,” while simultaneously limiting a prosecutor’s discretion by allowing the judge to depart from the Sentencing Guidelines without a motion from the government. As this Comment illustrates, however, many appellate courts are reluctant to affirm sentences where the district court judge has exercised this discretion in the context of cooperation departures. Many courts have failed to analyze how Booker impacts the mechanics of § 5K1.1 cooperation departures or choose not to address the question. Appellate courts have been particularly reluctant to affirm sentences where the sentence is lower than that which is recommended under the Guidelines. Nonetheless, several courts have used § 3553(a), the statute describing the offender characteristics that judges should consider at sentencing, as a mechanism for granting sentences below the Sentencing Guidelines to account for an offender’s cooperation.