The Federal Safety Valve

By Brock Benjamin
Founding Attorney

Confession is good for the Soul. At least that is what most federal practitioners grudgingly accept the Courts and the United States Attorneys believe. This stems from the two major ways in which defendants can obtain a huge benefit- getting sentenced below a mandatory minimum on a drug offense. We’re going to deal with the “Federal Safety Valve” in this article. The Safety Valve becomes important for two reasons, a defendant who qualifies receives a 2 level guideline adjustment, but more importantly the Court can sentence without regard to any mandatory minimum sentence. Mandatory minimum sentences occur mainly with regard to drug offenses. In drug offenses, minimum sentences are tied to the amount of drugs that a person is alleged to have possessed 1 . Specifically under 18 U.S.C. § 841, possession with intent to distribute Marijuana results in a 60 month (5 year) mandatory sentence for over 100 kilograms; 120 month (10 year) mandatory sentence for over 1000 kilograms. These minima are the same for cocaine, just the amounts are different.

United States Sentencing Guideline §5C1.2 provides that as long as one meets the criteria in 18 U.S.C. § 3553(f)(1)–(5) which is also in §5C1.2 the Court for offenses under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, can sentence without regard to any mandatory minimum sentence 2

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines before application of subsection (b) of §4A1.3 (Departures Based on Inadequacy of Criminal History Category);
(2)the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3)the offense did not result in death or serious bodily injury to any person;
(4)the defendant was not an organizer, leader, manager, or super- visor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and
(5)not later than the time of the sentencing hearing, the defend- ant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a com- mon scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

A Court has held that the 2 level reduction is mandatory if the defendant qualifies 3 . In the southwestern border region, this type of case comes up frequently and easily. A defendant is crossing the border with a car that has a controlled substance in it. Defendant is stopped, questioned, provides all the information he has and is then arrested and charged. In these cases the the defendant usually has no criminal history points, no violence, is a stipulated minor participant and lastly the government usually agrees that they have provided all of the relevant information.

More complicated issues arise when its not such as open and shut. The standard for possession of a weapon is different in Safety Valve than 18 U.S.C. § 924 or under §2D1.1. 4 However what happens when there is no weapon, but the government believes that your client is a leader or does not agree that your client has provided “all information and evidence the defendant has concerning the offense?” This must be litigated carefully. A role is best contested with the probation officer during the Pre-Sentence Interview. If you can convince the officer, you’re at least not contesting that standard with the Court and the Government. 5

Courts have the the ultimate determination in Safety Valve eligibility. 6 The Government is allowed to make a recommendation. How do they do this? The normal process is the client executes a sworn statement and provides that to the Assistant United States Attorney handling the case. That attorney makes a determination in their opinion as to element 5. If accepted it is forwarded to the United States Probation Officer recommending the adjustment. If it is not acceptable an interview can be scheduled to meet with the United States and its case agent usually. In cases where the AUSA will recommend that the adjustment be denied, the Court should be notified and an evidentiary hearing requested.

In sum, the steps are simply, however one must be careful that the evidence reflects or can be shown to support the defendant’s version and also that the defendant is comfortable with any consequences that stem from his providing “all information.”

By Brock Benjamin

1 Some prosecutors will refer to these as (A) level or (B) level drugs based on either 21 U.S.C. § 841(b)(1)(A)(i) or 21 U.S.C. § 841(b)(1)(B)(i) which contain the applicable minimums.
2 8 U.S.C. § 1324 another common mandatory minimum sentence statute does not qualify for the Safety Valve.
3 U.S. v. Leonard, 157 F.3d 343 (5th Cir. 1998)(finding safety valve mandatory, but no error).
4 The defendant need only show by a preponderance that the weapon was not used in connection with the offense, not that it is clearly improbable as under §2D1.1(b)(1). See U.S. v. Nelson, 222 F.3d545 (9th Cir. 2000).
5 A Court makes the determination based on evidence, but it is the Government’s burden. See U.S. v. Milton, 153 F.3d 891 (8th Cir. 1998).
6 §5C1.2 app. note 8 states-Under 18 U.S.C. § 3553(f), prior to its determination, the court shall afford the govern- ment an opportunity to make a recommendation. See also Fed. R. Crim. P. 32(f), (i).

About the Author
Brock Benjamin is board-certified in Criminal Law by the Texas Board of Legal Specialization.  His practice is primarily state and federal criminal law and appeals.Brock 

Posted in: Drug Criminal Defense