5K1.1 motion not needed post-Booker to gain downward variance for cooperation
Prior to Booker, the prosecution held the exclusive ability to trigger a downward departure for cooperation, that is to say, if the government could not be persuaded to file a 5K1.1 motion, then, absent a showing of a bad faith refusal to do so, the defendant had no hope of a departure. As Booker has changed the landscape generally, so it has specifically in the area of sentence reductions for cooperation. A government motion is no longer necessary to secure such a reduction, according to the Sixth Circuit in an opinion released on March 9th.
In United States v. Blue, 557 F.3d 682 (6th Cir. 2009), the defendant had argued unsuccessfully in the District Court that she was entitled to a 5K1.1 motion which the government had withheld as a result of unspecified cooperation. The Court of Appeals agreed with the District Court that the government's failure to move was not undertaken in bad faith, so affirmed on that point. However, the better argument to have been made below was not made there -- the defendant had failed to argue in the trial court, however, that under Booker, the court could have considered her cooperation under 18 U.S.C. § 3553 in imposing a below-Guidelines sentence. That failure effected a waiver of the point in this particular case. But the Court of Appeals held more broadly that a 5K1.1 motion is no longer necessary before a sentencing judge may sentence below the advisory Guidelines range. That kind of downward variance is available whether or not the prosecutor seeks it.
