”Reasonably Predictable:” The Reluctance to Embrace Judicial Discretion for Substantial Assistance Procedures

In United States v. Booker, the Supreme Court held that the Federal Sentencing Guidelines are no longer mandatory, yet still instructed sentencing courts to continue to advise the Guidelines. In light of this expanded judicial discretion, post-Booker cooperation, or 5K1.1, motions made by the government are of particular interest because it can have the potential to increase the court’s power while simultaneously limiting a prosecutor’s discretion by departing from the guidelines without any motion made from the government. While most appellate courts have been reluctant to affirm sentences that have been substantially departed from the guidelines in the absence of a 5K1.1 motions, several courts have used 18 U.S.C. §3553(a) as a mechanism for granting sentences below the Guidelines to account for an offender’s cooperation. This Comment argues that courts should not only consider a defendant’s cooperation but also consider those efforts where cooperation does not amount to substantial assistance at sentencing. GERONIMO_CHRISTENSEN 2/3/2011 10:20 PM 101 REASONABLY PREDICTABLE: THE RELUCTANCE TO EMBRACE JUDICIAL DISCRETION FOR SUBSTANTIAL ASSISTANCE DEPARTURES