Document Type

Article

Publication Date

2006

Publication Citation

33 Fordham Urban Law Journal 1321 (2006)

Abstract

This Comment focuses on the nuances of post-Booker cooperation departures and sentence variances. Section 5K1.1 of the Guidelines governs the provision of cooperation, or substantial assistance, departures. This provision was the primary method for defendants to receive cooperation departures prior to Booker. The section 5K1.1 provision allowed substantial assistance departures where the prosecution actually benefited from the defendant’s cooperation.

First, Part I.A of this Comment will provide an overview of the original goals of the Sentencing Commission and the section 5K1.1 substantial assistance provision. Part I.B of the Comment summarizes United States v. Booker and its impact on cooperation departures. Finally, post-Booker application of section 5K1.1 and 18 U.S.C. § 3553(a) to substantial assistance is explored in Part II and is followed by a recommendation in Part III. This Comment argues that judges should not only consider a defendant’s cooperation with the government at sentencing, but they should also consider those efforts where the cooperation does not amount to substantial assistance. This Comment discusses how this aspect of the substantial assistance provision has been implicated by expanded judicial discretion.

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