Drug Possession

What is the safety valve? How do I get it? Do I want it?

In federal court there are many various mandatory minimums. Generally speaking, mandatory minimums are bad things. A mandatory minimum prevents judges from doing what they think is right. Often times, the prosecutor’s office is not very friendly with the defendant and this prevents the defendant from getting any kind of real offer from them. Some times, the defendant wants to plea guilty, but is greatly hampered by the mandatory minimum. In federal court, the defendant can seek a safety value which would prevent the mandatory minimum and allow the defendant to go heads up with the judge. While the judge still has to grant the safety value, its still a good way to think about an alternative to a terrible mandatory.

§5C1.2 Limitation on Applicability of Statutory Minimum Sentences in Certain Cases

The relevant portion of the statute is:

§5C1.2. Limitation on Applicability of Statutory Minimum Sentences in Certain Cases

(a)Except as provided in subsection (b), in the case of an offense under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth below:

(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 supervisor 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 defendant 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 common 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.

(b)In the case of a defendant (1) who meets the criteria set forth in subsection (a); and (2) for whom the statutorily required minimum sentence is at least five years, the offense level applicable from Chapters Two (Offense Conduct) and Three (Adjustments) shall be not less than level 17.

Application with §5k1.1

Two major points taken from the statute. First, the safety valve only applies to drug cases. Second, what happens if the government brings you in for a proffer, and you are hoping to earn a 5k1.1, but the prosecutor tells you that whatever you gave them, just isn’t enough to earn the 5k1.1? Can you still get the safety valve? Absolutely yes. Therefore in a very serious drug case where you think the government should have given you the 5k1.1, but didn’t, you can argue for the safety valve heads up with the judge.

Also, along the same lines, if the government tells you they will give you the 5k1.1, and whats you to sign the guilty plea agreement, ask them to put the safety valve provision in the plea agreement. If the government later decides that you didn’t give them everything the wanted and they attempt to yank the 5k1.1, you can tell still go for the safety valve and get your minus three.

Brian J. Zeiger, Esquire, is an experienced and successful criminal defense and civil rights attorney. He is a seasoned trial lawyer with significant experience before juries and judges. Brian understands civil rights cases, including Taser, Wrongful Death, Excessive Force, Police Brutality, Police Misconduct, Malicious Prosecution, Monell Claims, Sexual Assault, Prisoner’s Rights, Time Credit, Medical Malpractice, and Medical Indifference.